Law and Society Commons^™

Capital Punishment: A Critique Of The Political And Philosophical Thought Supporting The Justices' Positions., Samuel J.M. Donnelly

St. Mary's Law Journal

Since Gregg v. Georgia, the Supreme Court has developed what could be described as a subparadigm for capital punishment. This subparadigm is now at a point of crisis for two enduring and mutually supporting reasons. The dissents by Justice Brennan and Justice Marshall represent the convergence of the better modern thought in regard to capital punishment. Even with the retirement of both Justices, the criticism found in their dissenting opinions presents a continuing challenge to the plurality’s position. Those using the plurality’s rhetoric are now split into two groups. Justices Blackmun and Stevens regularly vote against capital punishment, while focusing …

Tales Of Two Cities: Aids And The Legal Recognition Of Domestic Partnerships In San Francisco And New York, David L. Chambers

Articles

Here are two stories. They are of the quite different ways that domestic partnerships of lesbian and gay couples have come to be recognized, for some purposes, in San Francisco and New York City. I tell the stories for their own sake, but with a particular focus on the role that AIDS played in the political process in each city.

United States Customs Law Affecting The Movement Of Goods Into And Out Of Mexico., Robert T. Givens, Rayburn Berry

St. Mary's Law Journal

Trade between the United State and Mexico rose dramatically over the past decade. Several factors account for this increase in trade. These factors include the relative weakness of the Mexican currency, growth of the maquiladora industry, and increased Mexican production of exportable products generally. Other factors include Mexico’s 1986 accession to General Agreements Tariff and Trade (GATT), the resultant lowering of Mexican customs duties, and a good long-term working relationship between the two countries. If ongoing negotiations culminate in a North American Free Trade Agreement (NAFTA) the trend will accelerate.

Laws regulating the importation of merchandise into the United States …

The Case For A Texas Compulsory Unitization Statute., Paula C. Murray, Frank B. Cross

St. Mary's Law Journal

Compulsory unitization of oil and natural gas reservoirs would substantially enhance the welfare of the United States and of Texas in particular. The present regulated free market for oil production produces both inefficiencies and inequities. Consequentially, oil exploration is discouraged, oil production is unnecessarily costly and wasteful, and the private distribution of oil revenues can be arbitrarily unfair. Compulsory unitization would remedy many of these shortcomings which result from extant structures. Unitization means the cooperative development of an entire reservoir of oil or gas. Compulsory unitization in most states also contains a variety of substantive and procedural prerequisites to unitization …

Unpublished Opinions Shall Not Be Cited As Authority: The Emerging Contours Of Texas Rule Of Appellate Procedure 90(I)., David M. Gunn

St. Mary's Law Journal

In Texas, worries of judicial overproduction have persisted throughout the twentieth century. Although the Texas Supreme Court began to use per curiam opinions more frequently around 1925, the flood continues. Texas now has more courts and judges than ever before, and history offers no reason to expect retrenchment. The present scheme in Texas creates two classes of judicial opinions, published and unpublished. Unpublished opinions are not supposed to count for purposes of stare decisis, while published opinions do. Texas Appellate Rule 90 regulates the issuance of opinions from the courts of appeals. Part (a) requires intermediate courts to issue written …

Analyzing Scientific Evidence: From Validity To Reliability With A Two-Step Approach., Renee A. Forinash

St. Mary's Law Journal

Throughout legal history, courts have wrestled with scientific evidence. Sometimes the courts admitted invalid evidence disguised as science. In the 1920’s, courts developed a very limited standard of admissibility for scientific evidence. Under the Frye test, a scientific expert’s conclusion was inadmissible unless the conclusion was generally accepted by the scientific community. Although this prevented “junk science” from invading courtrooms, it also protected invalid scientific evidence already present in the system and restricted using new, but valid, scientific techniques. In response, many jurisdictions developed more liberal evidentiary standards. The liberal standards averted the “cultural lag” for which Frye was criticized …

Privitization Of The Mexican Banking System: Quetzalcoatl And The Bankers., John P. Cogan Jr.

St. Mary's Law Journal

Abstract Forthcoming.

Federal Income Tax Issues In The Organization, Financing, And Operation Of Maquiladoras., William R. Leighton, T. Richard Sealy Iii

St. Mary's Law Journal

This Article principally considers various United States federal income tax issues in the formation, financing, and operation of maquiladoras. Mexico’s most successful means of attracting foreign investment is its Maquiladora Program. Mexico created the program to encourage U.S. and other non-Mexican enterprises to establish manufacturing facilities in Mexico. It spawned a domestic industry whose economic output is second only to that of Mexico’s national oil industry. In the 1980s, the maquiladora industry experienced explosive growth from 620 plants in 1980 to more than 2,000 currently. They employ approximately 500,000 workers earning an average wage of five dollars per day plus …

Joint Ventures In Mexico: A Current Perspective., Rona R. Mears

St. Mary's Law Journal

The Article is intended to go beyond legal issues, to address core practical considerations in forging successful U.S.-Mexico joint ventures. Opportunities unmatched in Mexico’s history are now available for foreign investors and traders doing business in Mexico. This Article will begin by presenting a historical perspective on joint venturing in Mexico and then contrast it with an examination of current uses of joint ventures in Mexico. It will also highlight the traditional advantages of strategic business alliances. Following is a detailed review of structuring the Mexican joint venture. Finally, this Article identifies strategies for dealing with practical issues which arise …

Foreign Investment In Mining In Mexico., Rodrigo Sanchez-Mejorada Velasco

St. Mary's Law Journal

The object of this Article is to focus on the current legal provisions which regulate foreign investment in mining in Mexico. Legislation implemented in 1961 reduced foreign participation in mining to a minority position, and legislation implemented in 1975 further developed Mexican control over mining activities. The enactment of new foreign investment regulations in 1989, and new mining regulations in late 1990 allowed wider participation of foreigners in mining. Mining is one of the oldest economic activities in Mexico. Mercantilist economic ideas, in Europe in the seventeenth and eighteenth centuries, stressed accumulation of precious metals by states and saw American …

Peremptory Jury Strike In Texas After Batson And Edmondson., Alan B. Rich

St. Mary's Law Journal

In Batson v. Kentucky, the United States Supreme Court overruled that portion of Swain v. Alabama, which had imposed a “crippling burden of proof” upon a person who wished to vindicate his right of equal protection under the Fourteenth Amendment in the face of a racially motivated peremptory challenge. Under Batson, a defendant can raise an inference of discrimination and prove it using only evidence adduced at his own trial. Two fundamental questions needing resolution prior to involving the Batson procedures are: (A) who has standing to bring a Batson challenge; and (B) who must be challenged before the Batson …

God Is Dead: Killed By Fifty Years Of Establishment Clause Jurisprudence., Raul M. Rodriguez

St. Mary's Law Journal

In 1980, the Supreme Court in Stone v. Graham addressed the issue of whether a statute requiring the display of the Ten Commandments in all public school classrooms was an unconstitutional establishment of religion. Applying the Lemon test the Court found the statute’s purpose to be religious and ruled it unconstitutional. Yet, had the state required the placement of the following “secular commandments” in every classroom, it is unlikely the Court would have found an Establishment Clause violation. Stone illustrates what the Supreme Court’s Establishment Clause jurisprudence has become. The Court has misconstrued the meaning of the “establishment of religion” …

Limiting Punitive Damages: A Placebo For America's Ailing Competitiveness., Jimmie O. Clements Jr.

St. Mary's Law Journal

This Comment will discuss Vice President Dan Quayle’s proposed legislation by reviewing the history of punitive damages and providing an overview of current state legislation. Thereafter, this Comment debunks the theory of an unruly punitive damage system and analyzes the impact of a punitive damages cap on competitiveness, quality, safety and the doctrine’s underlying goals. On August 13, 1991, Vice President Quayle, as head of the President’s Council on Competitiveness (the Council), addressed the American Bar Association’s annual meeting. He announced a fifty-point proposal designed to improve the civil justice system. Vice President Quayle proposed, inter alia, a cap on …

The Evolution Of Government Liability Under Section 1983., Christopher J.M. Pettit

St. Mary's Law Journal

The Fourteenth Amendment of the United States Constitution provides in order to enforce the law, Congress shall have the power to pass enabling legislation. In the exercise of this power, Congress enacted the Civil Rights Act of 1871, to implement the prohibition of slavery as required by the Thirteenth Amendment. Although the Thirteenth Amendment abolished the institution of slavery, discriminatory actions by private citizens remained prevalent. During the period following reconstruction, congressional legislation shifted focus from prohibiting state action to prohibiting the actions of private individuals who violated the civil liberties of others. Through the passage of the Civil Rights …

Heitman V. State: The Question Left Unanswered., Matthew W. Paul, Jeffrey L. Van Horn

St. Mary's Law Journal

In Heitman v. State, the Texas Court of Criminal Appeals appeared to break with the court’s prior holdings to announce it would no longer “automatically adopt and apply” to the search and seizure provisions of the Texas Constitution “the Supreme Court’s interpretations of the Fourth Amendment.” The reaction to Heitman was immediate and striking. Heitman is obviously a significant decision that could impact Texas criminal jurisprudence for decades. Yet, the decision left many questions unanswered, including whether the search and seizure provision should be construed as placing greater restrictions on law enforcement than the Fourth Amendment of the United States …

The Political Philosophy Of Campaign Finance Reform As Articulated In The Dissents In Austin V. Michigan Chamber Of Commerce., John S. Shockley, David A. Schultz

St. Mary's Law Journal

The 1992 presidential candidacy of Jerry Brown, who called for campaign contribution limits, has reignited the issue of campaign finance reform. Indeed, the United States Supreme Court has recognized the importance of campaign finance reform as a judicial issue. The importance of this issue is marked by the Court’s continued willingness to address the regulation of campaign finance since the 1976 landmark case of Buckley v. Valeo. The case of Austin v. Michigan Chamber of Commerce emphasized the somewhat confused nature of the Supreme Court’s campaign finance reform decisions. The Supreme Court and state legislatures will likely continue to address …

Wrongful Adoption: A Guide To Impending Tort Litigation In Texas., Fred S. Wilson

St. Mary's Law Journal

Texas has an opportunity to improve a necessary tool of family law by recognizing and advancing wrongful adoption. There is an underlying lack of recognition for the interests of adoptive parents in adoption law. Those who choose to adopt necessarily rely on the information provided by an adoption agency in making their decision. As such, adoptive parents are particularly vulnerable to misrepresentation about the pertinent history of the adoptee. Recent cases in other states demonstrate the progression of wrongful adoption as a tort, yet many inadequacies remain. The necessary progression of wrongful adoption calls for the imposition of a duty …

The Economics And Politics Of Emergency Health Care For The Poor: The Patient Dumping Dilemma, Maria O'Brien

Faculty Scholarship

As the numbers of uninsured mount⁴ because of job dislocations, exhaustion of benefits, and unaffordably high premiums, the incidence of "dumping" by private hospitals is, predictably, on the rise. Dumping occurs when a hospital, in violation of federal or state law, transfers an emergency patient to another (usually public) hospital or simply refuses any treatment based on the patient's inability to pay.5 In addition to the completely uninsured, favorite dumping targets include Medicare and Medicaid patients, AIDS patients, and cancer patients whose therapy may cost more than the maximum reimbursement under private insurance.

Dumping is merely a part of …

Ouse, Paul M. Shupack

Cardozo Law Review

No abstract provided.

Experimenting With The "Right To Die" In The Laboratory Of The States, Thomas A. Eaton, Edward J. Larson

Scholarly Works

The purposes of this Article are twofold. Our first purpose is to reexamine the legal foundations of a patient's right to refuse treatment. The Court's equivocal handling of the federal constitutional issues in Cruzan v. Director, Missouri Department of Health invites a closer look at state constitutional, statutory and common law. The source of the underlying right will affect state experimentation with substantive and procedural rules in this area. Our second purpose is to describe the current status of the states' experiments with the right to die. That is, we elaborate in more detail on the state constitutional, statutory and …

Social Infrastructure Needs Of The Maquiladora Industry: A Proposal For United States Corporate Contributions., Rodolfo Villalobos, Bruce B. Barshop

St. Mary's Law Journal

Abstract Forthcoming.

Why The United States Should Adopt The First-To-File System For Patents., Bernarr R. Pravel

St. Mary's Law Journal

Abstract Forthcoming.

Alamo Lumber And Texas Usury Law: Playing With Fire In The Usury Forest., Terry W. Wright, W. Alan Wright, Scott G. Night

St. Mary's Law Journal

The effect of Alamo Lumber Co. v. Gold, and later cases interpreting third party assumption of debt as interest can be perilous to lenders. Lenders are in the business of offering loans to make money. Lenders achieve profit maximization by charging as much interest as possible in the market. Although economic and market factors are always considerations in a lender’s business, in Texas, lenders must also consider harsh usury laws that restrain the maximum amount of chargeable loan interest. Texas defines interest broadly. Statutes define interest as the receipt of compensation for the detention, forbearance or use of money. The …

Review Of Honorable Justice: The Life Of Oliver Wendell Holmes By Sheldon Novick., Michael S. Ariens

St. Mary's Law Journal

Abstract Forthcoming.

Operation Rescue And The Necessity Defense: Beginning A Feminist Deconstruction, Susan B. Apel

Washington and Lee Law Review

No abstract provided.

Civil Disobedience And Operation Rescue: A Historical And Theoretical Analysis, John W. Whitehead

Washington and Lee Law Review

No abstract provided.

Testimony Of Ambassador Carla A. Hills, United States Trade Representative, Before The Subcommittee On Trade, Committee On Ways And Means, U.S. House Of Representatives, June 14, 1990., Editorial Board St. Mary's School Of Law

St. Mary's Law Journal

Abstract Forthcoming.

Ethics And Due Diligence: A Lawyer's Perspective On Doing Business With Mexico., Rona R. Mears

St. Mary's Law Journal

The focus of this study is to survey ethical issues faced by legal practitioners in providing legal counsel for international business transactions, with special attention to lawyers counseling clients who are doing business with Mexico. This paper is intended for lawyers who practice in the United States (U.S.), involved in counseling clients outside the U.S. The purpose of this study is to highlight only those issues that raise special difficulties for such a practitioner, and then to provide practical advice on how to avoid ethical problems in U.S.-Mexico transactions. The Model Rules of Professional Conduct (MPRC), the International Code of …

Salinastroika: Recent Developments In Technology Transfer Law In Mexico., Mark O'C. O'Brien, Carlos R.V. Muggenburg

St. Mary's Law Journal

Abstract Forthcoming.

Binding Arbitration: A Preferred Alternative For Resolving Commercial Disputes Between Mexican And U.S. Businessmen., Hope H. Camp Jr.

St. Mary's Law Journal

Abstract Forthcoming.