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Articles 1501 - 1530 of 1871

Full-Text Articles in Law and Society

Revisiting Standards Of Review In Civil Appeals., W. Wendell Hall Jan 1993

Revisiting Standards Of Review In Civil Appeals., W. Wendell Hall

St. Mary's Law Journal

Applying and defining the accurate standard of review determines how likely an appeal will be successful. While the proper standard of review may be easy to identify, applying the standard of review to a case is often problematic. The standards define the interactions between trial and appellate courts by distributing the power of review throughout the judicial branch. The standards of review also limit a court’s authority to determine an error by a trial court, and whether the error warrants reversal. The standard sets the requirements of substantive law and provides a means for appellate judges to weigh arguments. This …

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Transracial Adoption In Texas: Should The Best Interests Standard Be Color-Blind., Jo Beth Eubanks Jan 1993

Transracial Adoption In Texas: Should The Best Interests Standard Be Color-Blind., Jo Beth Eubanks

St. Mary's Law Journal

Legislative amendments must go further than limiting race from being a primary factor in adoptions; amendments must eliminate race as an acceptable factor. Diverging opinions of “race matching” in foster care and adoption exist. Administrative policies regulating adoption hold that same-race placement, between the adoptive parent and child, is a primary consideration when awarding custody in Texas. Basing child placement on the race or ethnicity of the parties involved raises serious constitutional concerns. The best interest standard is the predominant method in determining child placement, for both custody and adoption proceedings. The premise of the best interest standard is prioritization …

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Proof Of Attorney's Fees In Texas., Scott A. Brister Jan 1993

Proof Of Attorney's Fees In Texas., Scott A. Brister

St. Mary's Law Journal

In Texas, the complex and confusing rules defining proof of attorney’s fees require simplification. Texas, like many other states, follows the American Rule, meaning the plaintiff and defendant each pay their own attorney’s fees. The United States is the only common-law jurisdiction and virtually the only industrialized democracy following the American Rule. Two primary justifications support following the American Rule. First, the American Rule supports individuals seeking a judicial remedy by removing the obstacle of paying an opponent’s legal fees. Second, it reduces potential litigation, attendant time and expense that would be necessary to dispute legal fees if they were …

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Use Of Excessive Physical Force Against An Inmate May Constitute Cruel And Unusual Punishment Even Though The Prisoner Does Not Suffer Significant Injury., Anthony A. Avey Jan 1993

Use Of Excessive Physical Force Against An Inmate May Constitute Cruel And Unusual Punishment Even Though The Prisoner Does Not Suffer Significant Injury., Anthony A. Avey

St. Mary's Law Journal

In Hudson v. McMillian, the Supreme Court held that use of excessive physical force against an inmate may constitute cruel and unusual punishment even though the prisoner does not suffer any significant injury. The Eighth Amendment has evolved significantly since its adoption in 1791, becoming a complex line of authority which over time expanded the rights of criminals and convicts. Recent cases have attempted to mold the varying Eight Amendment standards into a more cohesive legal doctrine. These efforts were meant to clarify the doctrine of cruel and unusual punishments; however, the divergent interpretations of these decisions rendered Eighth Amendment …

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Summary Of The Convention Between The Government Of The United States Of America And The Government Of The United Mexican States For The Avoidance Of Double Taxation And The Prevention Of Fiscal Evasion With Respect To Taxes On Income., Raul S. Moreyra Jan 1993

Summary Of The Convention Between The Government Of The United States Of America And The Government Of The United Mexican States For The Avoidance Of Double Taxation And The Prevention Of Fiscal Evasion With Respect To Taxes On Income., Raul S. Moreyra

St. Mary's Law Journal

To prevent double taxation and income tax evasion, the Mexico and United States governments signed a convention in September 1992. The convention establishes when businesses may be subject to either United States or Mexico tax liabilities. Key to the application of the convention is the concept of permanent establishment. Permanent establishment is the designation given to a business situated in Mexico that transacts operations for a United States enterprise. This designation determines which nation, the United States or Mexico, will collect taxes from the business. If the business is a permanent establishment, the Mexican government will collect taxes. The types …

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Tending The Bar In Texas: Alcoholism As A Mitigating Factor In Attorney Discipline., Patricia Sue Heil Jan 1993

Tending The Bar In Texas: Alcoholism As A Mitigating Factor In Attorney Discipline., Patricia Sue Heil

St. Mary's Law Journal

This Comment describes the nature and scope of alcoholism and chemical dependency in the legal profession. It reviews the current state of the law regarding alcoholism as a mitigating factor in attorney discipline. Addictive illnesses manifest themselves in ways which leave afflicted attorneys unable to practice law in accordance with professional rules of conduct. The majority of attorney-discipline cases involve alcoholism or chemical dependency. An attorney whose illness remains untreated will likely become the subject of grievance-committee investigations. For disciplinary cases involving alcoholism, a suggested analysis includes establishing a nexus between illness and misconduct. Additionally, it includes a causal connection …

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The Arbitration Of Private Commercial Disputes Between Residents Of Texas And Mexico., Wayne I. Fagan, Carlos Gabuardi Arreola Jan 1993

The Arbitration Of Private Commercial Disputes Between Residents Of Texas And Mexico., Wayne I. Fagan, Carlos Gabuardi Arreola

St. Mary's Law Journal

This paper evaluates whether the Texas International Arbitration Act (TIAA) will be a helpful addition to the laws governing arbitration of private commercial disputes between residents of Texas and Mexico. Owing to differences among cultures, languages, and legal systems, attorneys in the United States and in Mexico are turning to binding arbitration for the resolution of international disputes. Texas enacted an International Arbitration Act in 1989 to foster expanded international trade and facilitate resolution of international commercial disputes through conciliation and arbitration. Proponents of international arbitration argue it is the method of choice for resolution of private commercial disputes due …

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Congressional Reform: Can Term Limitations Close The Door On Political Careerism., Julia C. Wommack Jan 1993

Congressional Reform: Can Term Limitations Close The Door On Political Careerism., Julia C. Wommack

St. Mary's Law Journal

Addressing Congressional woes requires reform. Entrenched incumbency is a detriment to the legislative system. Although the enactment of initiatives restricting Congressional terms limits signal voters agree, better alternatives exist. The only prerequisites found in the Constitution for serving in Congress are age, residency, and citizenship. While the twenty-second amendment proscribes the presidential office limit maximum as two terms, no such limitations exist for a congressman or congresswoman. Sitting incumbents have substantial advantages over their challengers. Incumbents success ratio exceeds 80% in Senate races and is approximately 90% for elections in the House of Representatives. Congressional term limitations attempt to eliminate …

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Machiavelli And The Politics Of Welfare, National Health, And Old Age: A Comparative Perspective Of The Policies Of The United States And Canada, Camilla Watson Jan 1993

Machiavelli And The Politics Of Welfare, National Health, And Old Age: A Comparative Perspective Of The Policies Of The United States And Canada, Camilla Watson

Scholarly Works

This Article maintains that in order to fully comprehend the politics of welfare, retirement security, and national health coverage, it is necessary to examine Machiavellian principles in relation to the variables of economic development and inter-party competition. If the principles of Machiavelli are applied in a slightly different and more constructive manner, they may facilitate reform of the American welfare, retirement, and national health systems. Now that the political balance in the United States has shifted from the conservative to the liberal, the time is ripe to consider reforming the entire Social Security system and instituting a comprehensive national health …

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Industrialization In The Borderlands And The Nafta Treaty., Phillip D. Hardberger Jan 1993

Industrialization In The Borderlands And The Nafta Treaty., Phillip D. Hardberger

St. Mary's Law Journal

Abstract Forthcoming.

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Foreign Investment In Mexico From The Perspective Of The Foreign Investor., Hope H. Camp Jr., Jaime Alvarez Garibary, C. Lee Cusenbary Jr. Jan 1993

Foreign Investment In Mexico From The Perspective Of The Foreign Investor., Hope H. Camp Jr., Jaime Alvarez Garibary, C. Lee Cusenbary Jr.

St. Mary's Law Journal

A factor contributing to the continuation of the economic revolution in Mexico has been, and will continue to be, foreign investment. The liberalized foreign-investment regulations and the positive attitude of the Foreign Investment Commission (FIC) in approving foreign investment proposals promote a more favorable environment for foreign investors. The Mexican government recently completed negotiating the NAFTA, a proposed free-trade agreement with the United States and Canada. The government is now considering what additional actions may be required to compete successfully with those other nations trying to attract scarce investment funds. Opportunities for foreign investors in Mexico are brighter than they …

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Contracting In Mexico: A Legal And Practical Guide To Negotiating And Drafting., Rona R. Mears Jan 1993

Contracting In Mexico: A Legal And Practical Guide To Negotiating And Drafting., Rona R. Mears

St. Mary's Law Journal

This Article is intended as a primer in contracting for the United States attorney counseling clients doing business in Mexico. Thus, this Article begins by surveying the legal foundations of contracting in Mexico. This includes basic contract principles in Mexico’s civil-law system, the distinction between civil and commercial contracts, and procedural formalities applicable to contracts in Mexico. Following the introduction is a discussion of successful contract negotiations in Mexico, including certain cultural factors and Mexican business customs which can affect negotiations. This section includes suggestions for preparing for negotiations and managing the negotiation process to obtain the best result. Next, …

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Framing A Texas Bill Of Rights Argument., James C. Harrington Jan 1993

Framing A Texas Bill Of Rights Argument., James C. Harrington

St. Mary's Law Journal

As federal courts have allowed individual rights to diminish, the Texas judiciary nurtures state constitutional jurisprudence. Texas has a unique history requiring special care in approaching the construction and presentation of arguments utilizing the Texas Constitution or Texas Bill of Rights. The state constitution evolved over six revisions resulting with the eventual ratification of the final version in 1876. A confluence of goals ultimately resulted in a document where the bill of rights appears in Article I and by specifically framing individual liberties as affirmative rights rather than restrictions of government power. Four modes of interpretation are typically employed when …

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Property And Small-Scale Privitization In Russia., Richard C. Schneider Jr. Jan 1993

Property And Small-Scale Privitization In Russia., Richard C. Schneider Jr.

St. Mary's Law Journal

Knowing who owns what suddenly became important in Russia because of dramatic economic and market reforms of the Yeltsin government. The transfer of property, from the state to the private sector is at the heart of the reforms. It is generally recognized the “foundations of a market-based economic system are property rights and private ownership.” The purposes of this article are to (1) summarize reforms which successfully introduced a scheme of private ownership in Russia, as demonstrated by the Nizhny Novgorod experiment, and (2) discuss those property rights which remain unclear. Accordingly, the second and third parts of the article …

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Judging In The Quiet Of The Storm., Shirley S. Abrahamson Jan 1993

Judging In The Quiet Of The Storm., Shirley S. Abrahamson

St. Mary's Law Journal

Justice Benjamin Cardozo evaluates the elements he believes motivate judges in deciding cases in The Nature of the Judicial Process. Judge Cardozo focuses primarily on common-law courts deciding common-law cases. Although state-court dockets cover a wider variety of topics today and the legal landscape has changed, The Nature of the Judicial Process remains influential. The basis of Judge Cardozo’s approach is to first extract principles from past cases and apply them to new fact situations. Cardozo refers to this process as the method of philosophy. As precedent cannot readily solve all new disputes, this process may require judges select from …

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The Great Speech Perspective., Jon Larsen Shudlick Jan 1993

The Great Speech Perspective., Jon Larsen Shudlick

St. Mary's Law Journal

Abstract Forthcoming.

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Jurors May Not Pose Written Questions To Witnesses In Criminal Cases., Mark C. Robertson Ii Jan 1993

Jurors May Not Pose Written Questions To Witnesses In Criminal Cases., Mark C. Robertson Ii

St. Mary's Law Journal

Abstract Forthcoming.

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A License To Kill: The Categorical Exemption Of The Mentally Retarded From The Death Penalty., David L. Rumley Jan 1993

A License To Kill: The Categorical Exemption Of The Mentally Retarded From The Death Penalty., David L. Rumley

St. Mary's Law Journal

This Comment will show there is no merit to the argument the Eighth Amendment prohibits the imposition of capital punishment on all persons considered mentally retarded. This Comment begins with an overview of the historical treatment of mental disabilities, articulating the levels of mental deficiency required for exculpation of criminal responsibility. Next, this Comment discusses the characteristics of persons with mental retardation. This Comment will also discuss the recently enacted statutes’ use of I.Q. tests for determinations of mental retardation. In analyzing these statutes, it becomes apparent a person’s I.Q. should not be prima-facie proof of mental retardation, although state …

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The Right To Life In Law: The Embryo And Fetus, The Body And Soul, The Family And Society, Stephen C. Hicks Jan 1992

The Right To Life In Law: The Embryo And Fetus, The Body And Soul, The Family And Society, Stephen C. Hicks

Florida State University Law Review

No abstract provided.

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Liability Of Blood Banks For The Transmission Of Hiv-Aids, Martin B. Kofsky Jan 1992

Liability Of Blood Banks For The Transmission Of Hiv-Aids, Martin B. Kofsky

St. Thomas Law Review

This article focuses on cases of HIV transmission arising from blood transfusions. This article specifically details and describes the effect of blood shield statutes upon HIV-AIDS litigation and the appropriate standard of care to which a blood bank or similar entity should be held. Finally, the impact of the standard of care in conjunction with blood shield statutes on negligence actions arising from the transmission of the virus through blood transfusions will be examined. Although only two to three percent of all HIV-AIDS transmission cases are attributable to transfusion, the bulk of the litigation with respect to HIV-AIDS transmission is …

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Should Defense Counsel Interview Plaintiffs' Treating Physician Ex Parte: Physician-Patient Privilege V. Discovery, Diane Davis Jan 1992

Should Defense Counsel Interview Plaintiffs' Treating Physician Ex Parte: Physician-Patient Privilege V. Discovery, Diane Davis

St. Thomas Law Review

This article first discusses the physician's ethical and legal obligations towards the patient and society. Second, it explores cases in which a patient's right to claim the physician-patient privilege was at issue, and why courts permitted or prohibited ex parte interviews. The article concludes that the courts prohibiting ex parte interviews of treating physicians reach the proper result based on the public policy favoring the physician-patient privilege.

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Planning For Free Trade: Taking Advantage Of The Transition., John M. Vernon, Enrique A. Gonzalez Calvillo Jan 1992

Planning For Free Trade: Taking Advantage Of The Transition., John M. Vernon, Enrique A. Gonzalez Calvillo

St. Mary's Law Journal

After two decades of restrictive policies regarding foreign involvement, Mexico is transforming its legal and regulatory structure. The progression of foreign investment, technology transfer, and industrial property laws and regulations is revealing. The significance of the overhaul of the industrial property and technology transfer framework in Mexico is evident considering the historical context in which it developed. With these reforms in place, Mexico significantly improved the conditions for placing U.S. franchises across the border. Mexico decreased tariff rates, eliminated import licenses for numerous products, and divested over half of the businesses previously owned or operated by the state. It also …

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Maquiladoras: Will The Program Continue., Cheryl Schechter, David Brill Jr. Jan 1992

Maquiladoras: Will The Program Continue., Cheryl Schechter, David Brill Jr.

St. Mary's Law Journal

This Article will discuss the industry and relevant aspects of the legal framework which evolved into the modern maquiladora operation. It will also analyze the possible impact of the ongoing North American Free Trade Agreement (NAFTA) negotiations on the Mexican maquiladora industry. In the late seventies and early eighties, Mexico plunged into an economic crisis brought on in part by its almost exclusive dependence on oil exports. The extreme drop in the international oil market forced the country to restructure its economy with a greater emphasis on manufacturing for export. Mexico’s maquiladora program played a key role in this aspect …

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Transborder - Road Transportation., H.N. Cunningham Iii Jan 1992

Transborder - Road Transportation., H.N. Cunningham Iii

St. Mary's Law Journal

This Article is intended to serve as a primer for attorneys representing clients engaged in shipping, receiving, and transporting merchandise between points in the United States of Mexico (Mexico) and the United States of America. A “crazy quilt” of laws and regulations govern the rights, duties, and obligations of persons engaged in these activities. These laws include not only the constitutions and statutes of two independent nations, but also the laws and regulations of their various political subdivisions as well. Due to the breadth of this material, this Article’s treatment of the subject is general, providing an overview of the …

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Environmental Permits: Land Use Regulation And Policy Implementation In Texas., Wm. Terry Bray, R. Alan Haywood, David S. Caudill, Pamela S. Bacon Jan 1992

Environmental Permits: Land Use Regulation And Policy Implementation In Texas., Wm. Terry Bray, R. Alan Haywood, David S. Caudill, Pamela S. Bacon

St. Mary's Law Journal

Real estate lawyers traditionally focused on the applicable zoning ordinances of the governing municipality. Real estate lawyers also are familiar with applicable subdivision ordinances, which typically impose additional limitations on the use of real property. Subdivision platting was originally envisioned as a procedure to ensure orderly development of property within the jurisdiction of a municipality. Many local land use regulations promulgated in recent years focus on the “environment” and purport to be necessary to conserve and protect natural resources. A complex network of federal and state statutes now exists which regulates the use of real property in order to protect …

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Admissibility Of A Rape Victim's Prior Sexual Conduct In Texas: A Contemporary Review And Analysis., James A. Vaught, Margaret Henning Jan 1992

Admissibility Of A Rape Victim's Prior Sexual Conduct In Texas: A Contemporary Review And Analysis., James A. Vaught, Margaret Henning

St. Mary's Law Journal

The treatment of rape victims in criminal prosecutions has become and remains a matter of intense public and legal interest in America. The conventional use of evidence of a rape complainant's prior sexual history in rape prosecutions was a major focus of the rape reform movement. A major consequence of the movement for reform is the federal government and forty-nine states enacting rape shield laws limiting the admissibility of evidence concerning the complainant’s sexual history in rape prosecution. This article analyzes the admissibility of evidence of a rape complainant’s prior sexual conduct from its common law origins concentrating on the …

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An Empirical Study Of Kent Style Juvenile Transfers To Criminal Court., Robert O. Dawson Jan 1992

An Empirical Study Of Kent Style Juvenile Transfers To Criminal Court., Robert O. Dawson

St. Mary's Law Journal

Kent v. United States was the first in a series of majority decisions by the United States Supreme Court which fixed constitutional minimum requirements for the juvenile justice system. This decision follows case law establishing the adjudication phase of the process: a right to notice of charges, to confrontation and cross-examination of witnesses, not to be compelled to incriminate oneself, and to counsel. Shortly afterwards, the Court established the constitutional requirement the government must prove its charges in juvenile court beyond a reasonable doubt. Finally, the Court determined the Double Jeopardy Clause of the Constitution applies in the juvenile process. …

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Legal Malpractice Committed While Working On Cases Which Result In Litigation Tolls The Statute Of Limitations For The Malpractice Claim Until All Appeals For The Underlying Causes Of Action Are Exhausted., Dina Bernstein Jan 1992

Legal Malpractice Committed While Working On Cases Which Result In Litigation Tolls The Statute Of Limitations For The Malpractice Claim Until All Appeals For The Underlying Causes Of Action Are Exhausted., Dina Bernstein

St. Mary's Law Journal

Abstract Forthcoming.

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Reasonable Double Definitional Instruction Results In Abolishing Exclusion Of Outstanding Reasonable Hypothesis As Standard Of Review In Circumstantial Evidence Cases., John J. Lapham Jan 1992

Reasonable Double Definitional Instruction Results In Abolishing Exclusion Of Outstanding Reasonable Hypothesis As Standard Of Review In Circumstantial Evidence Cases., John J. Lapham

St. Mary's Law Journal

Abstract Forthcoming.

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Living In Limbo: Single Asset Reorganizations Within The Financially Distressed Fifth Circuit., Thomas J. Meaney Jan 1992

Living In Limbo: Single Asset Reorganizations Within The Financially Distressed Fifth Circuit., Thomas J. Meaney

St. Mary's Law Journal

Abstract Forthcoming.

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