Law and Society Commons^™

The Toxic Mold Terrifying Texas: Mold's Hold On The Insurance Industry., Sylvia Pena-Alfaro

St. Mary's Law Journal

It is imperative that more scientific research concerning the effects of mold be conducted to better understand the consequences of long-term exposure to mold. Because of home and building modifications to conserve energy, mold has been able to thrive. Reports of illnesses allegedly caused by mold exposure have increased. No scientific evidence, however, exists that conclusively links the illnesses to the effects of mold. Only a limited number of scientific studies exist showing just how harmful toxic mold can be, but there is disagreement as to whether the harmful effects of toxic mold can compromise the immune system to such …

In Re V.L.K. V. Troxel: Is The Best Interest Standard In A Motion To Modify The Sole Managing Conservator Subject To A Due Process Or Course Challenge., David F. Johnson

St. Mary's Law Journal

Texas Family Code section 156.101 is unconstitutional. In In re V.L.K, the Texas Supreme Court held that the Texas Legislature removed the injurious retention element from section 156.101 and no longer required a finding that the natural parent be injurious to the welfare of the child. The Texas Supreme Court’s ruling is contradictory to the United States Supreme Court’s ruling in Troxel v. Granville. In Troxel, the Supreme Court struck down a state statute that effectively permitted any third party to file a motion to challenge custody. Under Texas law, any affected party, not limited to parties named in the …

Telemedicine In Texas: Solving The Problems Of Licensure, Privacy, And Reimbursement., Gilbert Eric Deleon

St. Mary's Law Journal

Abstract Forthcoming.

Introduction To The Second Annual Symposium On Legal Malpractice & (And) Professional Responsibility The Second Annual Symposium On Legal Malpractice & Professional Responsibility., Adam Boland

St. Mary's Law Journal

Abstract Forthcoming.

Absolute And Perfect Candor To Clients The Second Annual Symposium On Legal Malpractice & Professional Responsibility., Vincent R. Johnson

St. Mary's Law Journal

The fiduciary duty owed to clients by attorneys is defined by the reasonable-care standard of negligence as opposed to the all-encompassing “absolute and perfect candor” rhetoric frequently used to describe the duty owed. Words have meanings and, though the use of “absolute and perfect candor” serves a beneficial purpose, reminding attorneys of the special duty owed to their clients, the fiduciary duty owed to clients is not so all encompassing and impractical. Modern case law fails to establish that a broadly applicable duty of “absolute and perfect” candor applies to the attorney-client relationship, except in a limited number of situations. …

The Legal Profession At The Crossroads: Who Will Write The Future Rules Governing The Conduct Of Lawyers Representing Public Corporations The Second Annual Symposium On Legal Malpractice & Professional Responsibility., David J. Beck

St. Mary's Law Journal

Abstract Forthcoming.

The Liability Of Lawyers For Fraud Under The Federal And State Securities Laws The Second Annual Symposium On Legal Malpractice & Professional Responsibility., Kathy Patrick

St. Mary's Law Journal

Abstract Forthcoming.

The Cost Of Humanitarian Assistance: Ethical Rules And The First Amendment The Second Annual Symposium On Legal Malpractice & Professional Responsibility., Jack P. Sahl

St. Mary's Law Journal

Abstract Forthcoming.

Tactical Considerations In Defending Assigned Legal Malpractice Claims Essay., William D. Cobb Jr.

St. Mary's Law Journal

Every Texas lawyer with a legal malpractice defense docket should be aware of the Zuniga rule and its possible exceptions. Although the general rule in Texas is that causes of action are freely assignable, because of the ruling in Zuniga v. Groce, Locke & Hebdon, legal malpractice causes of action are unassignable. The Texas Supreme Court declined to hear the case with the notation “writ refused” essentially adopting the lower court’s opinion as its own. Nonetheless, the decision in Zuniga did not resolve the problem of the insolvent judgment debtor, nor did Zuniga purport to invalidate all agreements that dispose …

Insurance Companies Use Of Captive Or In-House Counsel To Represent Insured Constitutes The Unauthorized Practice Of Law: Is American Home The Right Decision For Texas Comment., Daniel M. Martinez

St. Mary's Law Journal

Insurance companies should not be allowed to continue the practice of hiring in-house or captive counsel to defend against a claim covered by their insurance policy. Under a typical liability insurance policy, the insurer has a duty to defend. When legal counsel is retained, the insurer pays for the representation and has a contractual right to control the defense. This places defense counsel in a precarious situation because he or she has to balance the contractual obligations to the insurer against his or her ethical responsibilities to the insured. The defense counsel may be exposed to a malpractice claim by …

Jury Patriotism: The Jury System Should Be Improved For Texans Called To Serve., K. B. Battaglini, Mark A. Behrens, Cary Silverman

St. Mary's Law Journal

Many citizens seem to embrace the jury system, so long as they do not have to participate. The reason for this is not that most citizens are “un-American” but rather the burden jury duty imposes on potential jurors. Texans, in general, continue to overwhelmingly support the jury system. Yet, many citizens fail to appear for jury duty when summoned or strive to get out of jury duty after entering the courthouse. Most of these individuals do not lack a sense of civic duty. Rather, they are discouraged from jury service due to the hardship and headache imposed by an antiquated …

Punitive Damages In Texas: Examining The Need For A Split-Recovery Statute., Meredith Matheson Thoms

St. Mary's Law Journal

As a result of the increasing number and amounts of punitive damage awards, a call for reform is much warranted. Reformers and legislators continue to seek out measures to effectively limit excessive punitive damage awards and deter unnecessary and frivolous litigation. But they must consider not only the effects of the statutes but also the purposes they will serve. Split-recovery statutes can become valuable reform tool which will continue to serve the goals of punishment and retribution attached to punitive damages as well as deterrence. Split-recovery statutes arguably enlarge government, but they also serve a valuable purpose in furthering the …

Iolta In The Balance: The Battle Of Legality And Morality Between Robin Hood And The Miser Recent Development., Katherine L. Smith

St. Mary's Law Journal

Interest on Lawyers Trust Account (IOLTA) programs recently survived a constitutional challenge. IOLTA programs require interest earned from trust accounts deposited with client money to fund legal services for the poor. Many states, including Texas, maintain a mandatory IOLTA program, requiring all lawyers who handle client funds to participate. Proponents of IOLTA argue it benefits civil justice. Opponents argue it is an unconstitutional taking in violation of the Fifth Amendment. The Fifth Circuit held IOLTA accounts to be an unconstitutional taking of client property. The Ninth Circuit, however, found IOLTA accounts constitutional, holding that IOLTA accounts are not a taking …

Accountants' Accountability To Nonclients In Texas., Jessica P. Gomez

St. Mary's Law Journal

This Comment proposes that accountants be held liable to any foreseeable user of their work product to ensure the deterrence of negligence on their part. Currently, the three main common law theories concerning whether nonclients can sue accountants for negligence are: (1) the privity rule; (2) the Restatement (Second) of Torts § 552; and (3) the foreseeability standard. Many states follow the Restatement approach entitled “Information Negligently Supplied for the Guidance of Others.” Texas imposes liability on accountants but fails to extend protections to third parties who rely upon the accuracy of financial statements. Further, Texas liability does not expose …

Marbury V. Madison And Modern Judicial Review, Robert F. Nagel

Publications

This Article compares the realist critique of Marbury with several revisionist defenses of that decision. Realists claim to see Marbury as essentially political and thus as the fountainhead of modern judicial review. Revisionists claim to see the decision as legalistically justified and thus inconsistent with current practices. Close examination, however, indicates that, despite sharp rhetorical differences, these two accounts are largely complementary rather than inconsistent. Each envisions Marbury as embodying elements of both political realism and legal formalism. Once the false argument about whether Marbury was either political or legal is put aside, it is possible to trace the influence …

Constitutional Legitimacy, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The problem of constitutional legitimacy is to establish why anyone should obey the command of a constitutionally-valid law. A lawmaking system is legitimate if there is a prima facie duty to obey the laws it makes. Neither "consent of the governed" nor "benefits received" justifies obedience. Rather, a prima facie duty of obedience exists either (a) if there is actual unanimous consent to the jurisdiction of the lawmaker or, in the absence of consent, (b) f laws are made by procedures which assure that they are not unjust. In the absence of unanimous consent, a written constitution should be assessed …

Putting Health Care Providers At A Loss And Consumers At Risk: Why Hmos Should Be Held Accountable For The Financial Instability Of Their Delegated Networks., Anish P. Michael

St. Mary's Law Journal

This Comment explores why health maintenance organizations (HMOs) such as PacifiCare should be held accountable for the financial instabilities of their delegated networks. Part II discusses the organization of the managed care system and the assessment of Texas laws currently enforcing managed care in the state. Incorporated in this discussion is a look at the risks delegated networks bear when contracting with HMOs to provide payment for individualized care. Part III analyzes the increasing trend of financial instability by presenting the views of the HMOs, the delegated networks, the health care providers, and the consumers enrolled in the health plan. …

Privacy Lost: Comparing The Attenuation Of Texas's Article 1, Section 9 And The Fourth Amendment., Kimberly S. Keller

St. Mary's Law Journal

The Fourth Amendment to the United States Constitution requires that all searches and seizures be reasonable. Article I, Section 9 of the Texas Constitution mirrors its federal counterpart, requiring reasonableness in regard to intrusive governmental action. In examining these texts, both the federal and state provisions are comprised of two independent clauses: (1) the Reasonableness Clause, which prohibits unreasonable searches and seizures; and (2) the warrant clause, which provides that warrants may issue only upon a showing of probable cause. Both the federal and Texas constitutions include explicit language regulating the government’s right to intrude on a person’s privacy. This …

Re-Imagining Justice, Robin West

Georgetown Law Faculty Publications and Other Works

What do we mean by legal justice, as opposed to distributive, or social, or political justice; what is the justice, that is, we hope law promotes? What is the justice that lawyers and judges, peculiarly, are professionally committed to pursue? What is the virtue around which, arguably, this profession, and the individuals within it, have defined their public lives?

Justice -- and more particularly legal justice -- is a badly under-theorized topic in jurisprudence; perhaps surprisingly, there is little written on it. The paucity of writing of course has a history. It can be traced to the turn of the …

Nietzsche Between Jews And Jurists: A Note On The Christian Filiation Of The Anti-Christ, Anton Schütz

Cardozo Law Review

No abstract provided.

A Subversive Strand Of The Warren Court, Gary Peller

Washington and Lee Law Review

No abstract provided.

Irreparability Resurrected?: Does A Recalibrated Irreparable Injury Rule Threaten The Warren Court's Establishment Clause Legacy?, Doug Rendleman

Washington and Lee Law Review

No abstract provided.

Hegel's Theory Of Quantity, David Gray Carlson

Cardozo Law Review

No abstract provided.

Taking Its Toll: Partisan Judging And Judicial Review, Jeff Broadwater

The Journal of Appellate Practice and Process

No abstract provided.

Religion, The Rule Of Law, And The Good Of The Whole: A View From The Clergy, Marci A. Hamilton

Articles

No abstract provided.

Our Supermajoritarian Constitution, John O. Mcginnis, Michael B. Rappaport

Articles

No abstract provided.

Effectuating Censorship: Civic Republicanism And The Secondary Effects Doctrine, 35 J. Marshall L. Rev. 189 (2002), Brandon K. Lemley

UIC Law Review

No abstract provided.

Recognition And Enforcement Of Foreign Judgments In The United States: The Need For Federal Legislation, 37 J. Marshall L. Rev. 229 (2003), Violeta I. Balan

UIC Law Review

No abstract provided.

Fortifying A Law Firm's Ethical Infrastructure: Avoiding Legal Malpractice Claims Based On Conflicts Of Interest Symposium: Legal Malpractice And Professional Responsibility., Susan Saab Fortney, Jett Hanna

St. Mary's Law Journal

This article addresses the prevailing problem of malpractice claims based on conflicts of interest. Part I of this article introduces the topic by underscoring the seriousness of all conflicts of interest and recommending preventative action. Part II describes measures that law firms can take to detect and manage conflicts and analyzes the effect of the firm’s ability to avoid conflicts claims on a firm’s ethical infrastructure. Part III focuses on some of the most common conflicts situations that result in malpractice claims and sanctions. The discussion includes selected conflicts cases that illustrate problems and patterns. Part IV concludes by urging …

Browning Oil Co. V. Luecke: Has Texas Illuminated A Dark Distinction Between Vertical And Horizontal Drilling., Stephen Taylor Dennis

St. Mary's Law Journal

Horizontal drilling technology continues to revitalize the oil and gas industry, however, many of the legal concepts governing oil and gas law have failed to keep pace. Recently, in Browning Oil Co. v. Luecke, the Third Court of Appeals of Texas dealt with the issue of whether an antidilution clause applied to both horizontal and vertical wells. The agreement between the parties did not contemplate the use of horizontal technology, however, the express language did not exclude horizontal technology. Because the agreement did not expressly exclude horizontal drilling, the court looked at the intent of the parties and ruled that …