Law and Society Commons^™

Prescribed Child Abuse? Using The Americans With Disabilities Act To Deconstruct Discrimination Against Medication For Opioid Use Disorder In Child Abuse & Neglect Proceedings, Makenzie Stuard

The Scholar: St. Mary's Law Review on Race and Social Justice

The opioid crisis has disrupted parent-child relationships across the United States. While states actively seek to remove children from households with current drug use in order to protect the children, state entities often fail to protect the parent-child relationship itself by imposing counterproductive policies and stereotypes on parents who are in treatment for their drug use, which makes maintaining "recovery" and parental rights an uphill battle. This note argues that the Americans with Disabilities Act (ADA) provides a novel path to root out discrimination in child abuse and neglect proceedings against parents who either take prescribed buprenorphine or are interested …

Robbing Peter To Pay Paul: In The Absence Of School Finance Equity, Texas School Districts Forced To Choose Between Funding Academics Or Safety Reform, Emily Mann

The Scholar: St. Mary's Law Review on Race and Social Justice

This comment addresses the intersection between two discussions frequenting the Texas legislative floor – school safety and school finance. Following the deadliest school shooting in Texas history, Texas public schools are under political pressure to “harden” campuses rapidly and at great expense. Unsurprising, however, the high costs accompanying safety investment, coupled with the lack of financial backing from the state, puts districts in a challenging position. Any discussion of investment in Texas public schools also triggers questions of equity.

Debate over lack of equity across Texas public schools is no stranger to the Texas Supreme Court. Nonetheless, inequity persists in …

Legally Sanctioned Takings Of Black Children: How Slavery Reverberates In The Modern Child Welfare System, Abigail Mitchell

The Scholar: St. Mary's Law Review on Race and Social Justice

This article explores the link between the taking of Black children from their families perpetrated as part of American slavery and modern takings in the modern family policing system. This article posits that underpinning both systems is a pervasive paternalism that purports to be benevolent but has been weaponized to systematically traumatize Black children and villainize Black parents. This article takes a sweeping historical perspective and connects the same discourse used to justify slavery to that which has permeated the modern family policing system.

Bad Therapy: Conceptualizing The Teaching Of “Thinking Like A Lawyer” As Cognitive Behavioral Therapy, Chelsea Baldwin

St. Mary's Law Journal

Law students and lawyers experience mental illness and substance abuse at higher rates than the general population and other learned professions. This is bad for an individual’s wellbeing as well as their clients and society because mental illness and substance abuse increases stress which in turn decreases effective decision-making and judgment, and in worst case scenarios leads to attrition as individuals choose death by suicide which has cascading social and economic impacts. This Article identifies practices in legal education that likely combine in a causal mechanism, although not a sole cause, to the higher rates of mental illness and substance …

Rawls, Game Theory, And The Multiple Meanings Of Equality, David Crump

St. Mary's Law Journal

No abstract provided.

To Essa And Beyond: Arc Of Education Policy Bends Toward Local Authorities & Holistic Approaches, Adam Tanielian

St. Mary's Law Journal

This Article presents a mixed-methods, interdisciplinary study on educational policy and practice to offer solutions to fossilized problems extant across the United States’ elementary and secondary schools. Analysis of historic Supreme Court decisions and statutes unveil compelling trends that have shaped the legal landscape over the latter half of the twentieth century. Linguistic comparisons of two milestone revisions of the 1965 Elementary and Secondary Education Act—No Child Left Behind (NCLB) and Every Student Succeeds Act (ESSA)—show Congress granted more flexibility and authority to local districts and states under ESSA, which reflected trends in Supreme Court opinions over several decades.

A …

The Politics And Consequences Of State Secession, Olawale Olumodimu

St. Mary's Law Journal

This Article argues that the non-express prohibition of state secession in the Nigerian Constitution does not automatically allow component states to break away unilaterally. It appears the framers of the Constitution wanted to ensure political continuity and national unity rather than allow for Nigeria’s disintegration. Beyond Nigeria, international law only allows unilateral secession in the context of decolonization and the people’s right to self-determination.

Nigeria has a responsibility to provide self-determination to its citizens; however, secession is not a legal channel to seek self-determination in the absence of targeted, widespread, or systemic criminal acts committed by or on behalf of …

Foiled Foia: The Excessive Exemption, Edward L. Wilkinson Jr.

St. Mary's Law Journal

The Freedom of Information Act permits requestors access to government information unless an exemption applies. Exemption (b)(3)(B) permits the government to protect information if there is a specific reference to a FOIA exemption in the withholding statute. Congress created this new requirement in 2009 in order to remove decision making power from administrative agencies and courts and reserve the power to disclose or withhold information with the legislative branch. This exemption poses problems to courts when there is a clear intent to protect information in the withholding statute without a clear reference to Exemption (b)(3)(B). As a result, courts have …

Defiance, Lackland H. Bloom Jr

St. Mary's Law Journal

No abstract provided.

The Mosaic Theory In Fourth Amendment Jurisprudence: The Last Bastion Of Privacy In A Camera-Surveilled World, Auggie Alvarado

St. Mary's Law Journal

No abstract provided.

The Americans With Disabilities Act: Website Accessibility And A Foreign Solution To A Domestic Problem, James Toye

St. Mary's Law Journal

No abstract provided.

Existing Challenges And Possible Pathways For Case Success In Climate Litigation With Human Rights Claims, Daniel Ziebarth

St. Mary's Law Journal

No abstract provided.

Shots Fired, Shots Refused: Scientific, Ethical & Legal Challenges Surrounding The U.S. Military's Covid-19 Vaccine Mandate, Shawn Mckelvy, L. William Uhl, Armand Balboni

St. Mary's Law Journal

The COVID-19 pandemic provided uncertain and challenging circumstances under which to lead a nation and the military that protects it. Those in charge and in command faced unique challenges—scientific, ethical, and legal—at our various levels of government to both keep people safe while keeping government and society functioning. While there were many successes to celebrate, there are also many criticisms for how this “whole-of-government approach” may have degraded some of our most cherished liberties along the way. The authors focus on the U.S. military’s vaccine mandate and propose military leaders may have failed to fully consider the evolving science, weigh …

Mass Incarceration, Violent Crimes, And Lengthy Sentences: Using The Race-Class Narrative As A Messaging Framework For Shortening Prison Sentences, Eric Petterson

St. Mary's Law Journal

No abstract provided.

Translating A Cbdc Dollar Into A Constitutional Dollar, Christopher P. Guzelian

St. Mary's Law Journal

The constitutional Dollar was a silver coin. Federal and state paper moneys were

unconstitutional, and gold and copper coins were not Dollars. Consequently, notable

constitutional originalists claim any Dollar not constructed from silver—including the

current widely circulating paper Federal Reserve note—is unconstitutional. But the Dollar

soon may undergo an unprecedented technological metamorphosis: in 2022, the White

House and the Federal Reserve Bank Board of Governors advocated the possible adoption

of a U.S. Central Bank Digital Currency (“CBDC” Dollars). Private commercial

electronic bank credits have been issued for some time, but a CBDC Dollar would be

America’s first electronic government currency. …

The Right To Procreate By Nontraditional Methods, Elizabeth Kreager

St. Mary's Law Journal

No abstract provided.

Cyber Security: A Lawyer’S Ethical Duty, Meagan Folmar

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

Rumpole And The Dissatisfied Client: Lessons On Justice From Four Case Studies In Client Objectives V. Lawyer Means, Thomas N. Bulleit, Esq.

St. Mary's Journal on Legal Malpractice & Ethics

Fictional barrister-at-law Horace Rumpole is a skillful, tenacious, and even fearsome courtroom advocate for his criminal defense clients. He cares deeply about winning. But Rumpole departs from the stereotypical heroes and antiheroes of fictional courtroom drama in that he typically complies fully with the ethical constraints on advocacy and the truth-finding process. When Rumpole does occasionally stumble, it is in the other direction: by losing track of his client, and presenting often unwanted truths to elevate victory above other needs or interests that the client considers just as, or sometimes much more, important than a favorable verdict.

Using several of …

“Zealous” Professional Ethics: The Transcendence Of Natural Law, Legal Positivism, And The Ethical Stage In The U.S. Legal Ethics System And The Moral Dilemma That Surround Zealous Representation, Sudarsanan Sivakumar, Marshall Maina

St. Mary's Journal on Legal Malpractice & Ethics

The zealous pursuit of law has its own ideals and dogma that sets it apart from the other rules in the Model Rules of Professional Conduct. Decades after many enactments and amendments, there still exists many debates considering its operation as to whether an attorney owes a duty toward society over the representation of the client. This is a Delphi method that has made even the best seasoned ‘Justiciar’ and ‘Legislator’ unable to find the proper guidelines to implement upon the Legal Superstructure. The Model Rules of Professional Conduct attempt to clear the fog around the existing principle of Zealous …

The Ethical Lawyer: Beyond The Rules, Nick Badgerow

St. Mary's Journal on Legal Malpractice & Ethics

Does being a lawyer mean more than the mere pursuit of a client’s cause and resulting (hoped for) financial success and professional standing, while avoiding discipline? This article invites a consideration of what it means to be a true “professional” in the practice of law. First, the article explores the definition of the term “professional,” and proceeds to examine the obligations undertaken by lawyers (a) in their oath of admission, and (b) in codes of professional conduct. However, the author posits, should not the true professional aspire to more than the mere compliance with these minimum standards? In answer, the …

Artificial Intelligence And Legal Malpractice Liability, Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

Balancing Interests: Ai, Business & Human Rights, And The Legal Landscape In An Era Of Disruption, Jena Martin, Ritu Narula

Faculty Articles

On October 30, 2023, the Biden Administration issued a sweeping executive order espousing a policy to advance the development and use of artificial intelligence ("Al") while also establishing safeguards across the federal government. The Executive Order marked the U.S. government's largest move forward related to the regulation of Al. The Order also represents the government's latest effort to advance equity, privacy, and national security in the use of AI systems. Moreover, the Order comes at a time when governments around the world are wrestling with the impact of AI and its disruptive effect, not just on markets, but on society …

The United States Supreme Court’S Interpretation Of The “Establishment Clause” And How It Has Impacted Texas Politics Today, Rebecca Hailie Castro

Honors Program Theses and Research Projects

The Establishment Clause, since its creation in 1787, has worked towards creating a separation of church and state rooted in religious liberty after colonists fled England and the Church of England. In the centuries that have passed, the judiciary branch of the United States has been creating lasting precedents for how the Establishment Clause should be illustrated in the National Government and in the states. However, the long-lasting division between church and state has been decreasing, especially following a recent Supreme Court decision: Kennedy v. Bremerton School District (2022). The ramifications of entangling church and the state include, but are …

Why The Dobbs Draft Release Makes It Tougher To Teach Legal Ethics, Lynne Marie Kohm

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

Legal Ethics, Code Of Conduct For Barristers And The Overriding Objective In Criminal Trials, Zia Akhtar

St. Mary's Journal on Legal Malpractice & Ethics

The criminal lawyer has a duty to his client, to the court, and to the administration of justice. This must be accomplished within a framework of ethics comprised from codes of conduct regulating the legal profession. There are difficult ethical problems arising from conflicts between a lawyer’s responsibilities to clients, the legal system, and the disciplinary codes of the profession. In England, the barrister’s conduct is governed by the Bar Standard Board, and legal professionals must abide by the regulations that are imposed upon them when acting for their clients. The new Criminal Procedure Rules and …

The Disclosure Of Third-Party Litigation Funding Agreements Is Necessary To Resolve Ethical Dilemmas Created By The Third-Party Lender Industry, Gareth Purnell

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.

To Write Or Not To Write: The Ethics Of Judicial Writings And Publishing, Nick Badgerow, Michael Hoeflich, Sarah Schmitz

St. Mary's Journal on Legal Malpractice & Ethics

Judges are bound by the Model Code of Judicial Conduct promulgated by the American Bar Association and adopted most states, including the federal judiciary. Within these rules governing judicial conduct, Judges owe duties to the public and to their calling, to be (and appear to be) objective, fair, judicious, and independent. When judges venture into the realm of extrajudicial writing—in the form of fiction novels, short stories, legal books, children’s books, and the like—they must consider the ethical bounds of that expression. The Model Code of Judicial Conduct imposes five main constraints upon extrajudicial writings: (a) a judge may not …

Conduct Relating To The Practice Of Law: Aba Model Rule 8.4(G) And Its History In Light Of The Constitution, Nathan Moelker

St. Mary's Journal on Legal Malpractice & Ethics

The ABA adopted a revision to the Model Rules in 2016, prohibiting harassment and discrimination against a list of protected classes. The Rule, while well-intentioned and targeted at a serious problem, was broadly phrased to include a large category of protected speech and behavior. The Rule has already faced extensive and well-crafted challenges from the perspective of the Free Speech Clause. This article argues that two additional provisions of the First Amendment—the Free Exercise Clause and Freedom of Association—further illustrate the failure of the Rule and the alarmingly wide-ranging effects of such a prohibition on attorney conduct.

Unauthorized Practice Or Untenable Prohibitions: Refining And Redefining Upl, Jan L. Jacobowitz, Peter R. Jarvis

St. Mary's Journal on Legal Malpractice & Ethics

An extraordinarily number of Americans either cannot afford or cannot find lawyers to assist them on civil legal matters. And an increasing number of Americans turn either to on-line apps or to nonlawyer professionals whose practices may overlap in whole or in part with what lawyers do. Although individuals receive much needed assistance, these alternative providers often confront allegations of committing the unauthorized practice of law. Unfortunately, the rules regarding the unauthorized practice of law (“UPL”) are both outdated and extraordinarily ambiguous. Moreover, UPL issues regarding alternative providers are distinct from questions concerning whether nonlawyers should be entitled to be …

Ethical Lawyering: The Role Of Honor, Conscience, And Codes, Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

No abstract provided.