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2007

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Articles 241 - 270 of 344

Full-Text Articles in Law and Society

Afterword: The Race Question In Latcrit Theory And Asian American Jurisprudence, Robert S. Chang, Neil Gotanda Jan 2007

Afterword: The Race Question In Latcrit Theory And Asian American Jurisprudence, Robert S. Chang, Neil Gotanda

Faculty Articles

In the tradition of LatCrit Afterwords, Professors Chang and Gotanda take the liberty of raising questions that extend beyond the particular themes of this LatCrit Conference and the papers published in this Symposium. They return to two questions - ethnicity versus race and black exceptionalism - that were raised in early LatCrit Conferences but which have since been moved to the background. They ask what LatCrit Theory and Asian American Jurisprudence might teach us about minority on minority conflict and other ethno-racial fault lines. They present an analytic model to help understand commentaries on racial conflict and coalition. This model …

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Comparative Responsibility In Nonsubscriber Litigation Revisited After Kroger Co. V. Keng., Trek C. Doyle, Jarrett R. Andrews Jan 2007

Comparative Responsibility In Nonsubscriber Litigation Revisited After Kroger Co. V. Keng., Trek C. Doyle, Jarrett R. Andrews

St. Mary's Law Journal

The Texas Supreme Court’s decision in Kroger Co. v. Keng appears to resolve the question of whether an employer who does not subscribe to worker’s compensation can avail itself of the proportionate responsibility scheme in Chapter 33 of the Texas Civil Practice and Remedies Code. The question left unresolved is whether proportionate responsibility is available in nonsubscriber cases involving additional independently liable defendants. In Keng, the Court premised its holding on Texas Labor Code § 406.033, concluding nonsubscribing employers are prohibited from proving its employees were negligent. The Keng Court declined to decide whether proportionate responsibility was unavailable per se. …

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Current Trends In Texas Charge Practice: Preservation Of Error And Broad-Form Use., William G. Arnot Iii, David Fowler Johnson Jan 2007

Current Trends In Texas Charge Practice: Preservation Of Error And Broad-Form Use., William G. Arnot Iii, David Fowler Johnson

St. Mary's Law Journal

Over the years Texas appellate courts have been wrestling with two overwhelming charge issues—charge preservation of error and broad-form use. Since the charge is the controlling document the jury uses to decide the factual issues of the case, it is of extreme importance. Before a party can complain on appeal about charge errors, the error must be preserved at trial. The Texas Rules of Civil Procedure (TRCP) have a certain set of procedures for preservation of charge error. The Texas Supreme Court amended charge preservation of error practice in State Department of Highways & Public Transportation v. Payne. In the …

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The Path Of Least Resistance: The Effects Of Groundwater Law's Failure To Evolve With Changing Times Comment., Bruce E. Toppin Iii Jan 2007

The Path Of Least Resistance: The Effects Of Groundwater Law's Failure To Evolve With Changing Times Comment., Bruce E. Toppin Iii

St. Mary's Law Journal

Groundwater is a type of freshwater stored in the earth’s crust which does not flow through underground channels. In Texas, groundwater is becoming highly sought-after, and development of proper management and conservation models is crucial to preserve the resource for future generations. In Texas, ownership of groundwater is governed by the common law doctrine of absolute ownership, commonly mislabeled as the rule of capture. The absolute ownership doctrine still governs groundwater ownership, but its application has been judicially altered to limit the rights of landowners who wish to pump water from beneath their lands. Texas lawmakers also contributed to the …

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Spam (Supremacy Clause, Public Forums, And Mailings): The Fifth Circuit's Interpretation Of The Can-Span Act In White Buffalo V. University Of Texas Comment., Jason A. Smith Jan 2007

Spam (Supremacy Clause, Public Forums, And Mailings): The Fifth Circuit's Interpretation Of The Can-Span Act In White Buffalo V. University Of Texas Comment., Jason A. Smith

St. Mary's Law Journal

Unsolicited email advertisement, spam, has been a problem of the internet since its inception. In the face of this onslaught, users have fought back with a variety of methods, involving filtering software. Users have also resorted to the courts, suing spammers under the “trespass to chattels” theory. Not all courts have agreed with this theory, as there is often little evidence of the owner’s use of their servers being adversely affected by a digital trespass. While the states were the first to address overwhelming amount of spam, Congress address the issue with the first nationwide anti-spam legislation, the CAN-SPAM Act. …

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Refocusing Light: Alex Sheshunoff Management Services, L.P. V. Johnson Moves Back To The Basics Of Covenants Not To Compete., Michael D. Paul, Ian C. Crawford Jan 2007

Refocusing Light: Alex Sheshunoff Management Services, L.P. V. Johnson Moves Back To The Basics Of Covenants Not To Compete., Michael D. Paul, Ian C. Crawford

St. Mary's Law Journal

The law regarding covenants not to compete is a product of the tension between competing rights, including the right of companies to protect trade secrets, market share, and corporate goodwill. Companies use non-compete covenants to deter competition from former employees and discourage employees from job hopping. A covenant not to compete is generally defined as a contractual provision in which one party agrees to refrain from conducting business similar to that of the other party. Courts generally enforce covenants concerning activities after the termination of employment if such covenants are “reasonable in scope, time, and territory.” The promise cannot be …

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Why Legal Ethics Rules Are Relevant To Lawyer Liability The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility., Douglas R. Richmond Jan 2007

Why Legal Ethics Rules Are Relevant To Lawyer Liability The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility., Douglas R. Richmond

St. Mary's Law Journal

The last two decades have witnessed the creation of a perilous liability environment for lawyers and law firms. Most discussions of lawyer liability begin with “legal malpractice,” a term which typically describes professional negligence. In a malpractice case, the plaintiff must prove the lawyer owed them a duty, the duty was breached, and the breach was the proximate cause of actual damages. The lawyer’s duty flows from the attorney-client relationship. But, the attorney-client relationship is also a fiduciary one, and lawyers may be sued for breach of the fiduciary duty. While these two causes of action are usually alleged simultaneously, …

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Ethical Considerations Concerning Contacts By Counsel Or Investigators With Present And Former Employees Of An Opposing Party The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility., James L. Burt, Jeremy J. Cook Jan 2007

Ethical Considerations Concerning Contacts By Counsel Or Investigators With Present And Former Employees Of An Opposing Party The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility., James L. Burt, Jeremy J. Cook

St. Mary's Law Journal

Present and former employees of an opposing party are often the best source of information concerning that party’s activities. Contact with these employees or their representatives may be considered ethical or unethical depending on the circumstances. Unfortunately, the rules governing such contacts are neither clear nor consistent. The first issue lawyers must resolve is whether the present and former employees are considered “represented” under Rule 4.2 of the Model Rules of Professional Conduct. If they are “unrepresented” for purposes of Rule 4.2, the issue then becomes whether Rule 4.3 applies. Of grave importance are the potential sanctions, which include the …

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Recent Developments In Texas Legal Malpractice Law The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility., Kellie M. Hinson, Elizabeth A. Snyder Jan 2007

Recent Developments In Texas Legal Malpractice Law The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility., Kellie M. Hinson, Elizabeth A. Snyder

St. Mary's Law Journal

Abstract Forthcoming.

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International Legal Malpractice: Not Only Will The Dog Eventually Bark, It Will Also Bite The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility: Essay., Ethan S. Burger Jan 2007

International Legal Malpractice: Not Only Will The Dog Eventually Bark, It Will Also Bite The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility: Essay., Ethan S. Burger

St. Mary's Law Journal

The internationalization of legal practice presents numerous issues for lawyers, such as obtaining qualifications to practice law in foreign jurisdictions and developing the necessary knowledge. Different and possibly conflicting notions of standards of care and professional responsibility will arise. Globalization is widely regarded as the principal driving force in international economic and political relations. From the standpoint of business activity there are myriad ways to assess the impact of globalization. These include tracking rates of exchange, observing altered methods, or examining how attitudes and information has changed. Globalization has increased the demand for specialized accounting and legal services connected with …

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Dean Robert William Piatt Dedication., N/A N/A Jan 2007

Dean Robert William Piatt Dedication., N/A N/A

St. Mary's Law Journal

Abstract Forthcoming.

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Driving Down The Wrong Road: The Fifth Circuit's Definition Of Unauthorized Use Of A Motor Vehicle As A Crime Of Violence In The Immigration Context., Heather Harrison Volik Jan 2007

Driving Down The Wrong Road: The Fifth Circuit's Definition Of Unauthorized Use Of A Motor Vehicle As A Crime Of Violence In The Immigration Context., Heather Harrison Volik

St. Mary's Law Journal

Individuals who are not United States citizens and participate in violent or severe criminal activity are likely to be deported and become inadmissible for life. But noncitizens can also be deported for minor criminal activity which does not cause harm or serious damage. In such cases, deportation is an extreme punishment out of proportion to the offense. Unauthorized use of a motor vehicle (UUMV) is an example of a crime which can be committed without serious harm or damage. The Fifth Circuit regularly sustains decisions of lifetime reentry ban for noncitizens convicted of UUMV. Under immigration law, “aliens” who are …

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Automatic Tolling Of The Voluntary Departure Period - A Circuit Split Recent Development., Katherine A. Tapley Jan 2007

Automatic Tolling Of The Voluntary Departure Period - A Circuit Split Recent Development., Katherine A. Tapley

St. Mary's Law Journal

Abstract Forthcoming.

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What We Owe The World Are Thoughtful War-Crimes Trials That Do Justice Without Unduly Jeopardizing Innocent Lives By Compromising Vital Intelligence Comment., Sherry M. Barnash Jan 2007

What We Owe The World Are Thoughtful War-Crimes Trials That Do Justice Without Unduly Jeopardizing Innocent Lives By Compromising Vital Intelligence Comment., Sherry M. Barnash

St. Mary's Law Journal

In Hamdan v. Rumsfeld, the United States Supreme Court held the military commission convened to try accused terrorist Salim Ahmen Hamdan was unlawful. The Court concluded the Government could not lawfully proceed using established commission rules because the commission differed from courts-martial and did not follow certain aspects of the Geneva Convention. One procedure the Court found troubling was a provision in the Military Commission Order No. 1 which allowed the exclusion of the defendant and his civilian counsel from certain proceedings. Yet, denial of access was nothing new, as three decades prior Congress enacted the Classified Information Procedures Act …

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The Evolving Standard For Granting Mandamus Relief In The Texas Supreme Court: One More Mile Market Down The Road Of No Return., Richard E. Flint Jan 2007

The Evolving Standard For Granting Mandamus Relief In The Texas Supreme Court: One More Mile Market Down The Road Of No Return., Richard E. Flint

St. Mary's Law Journal

The Prudential balancing test should be of concern for anyone interested in the rule of law. This test is the current binding precedent for determining when an appellate court should exercise its mandamus authority upon a finding of a clear abuse of discretion. This test has substantially altered one of the most time honored principles of mandamus jurisprudence, and replaced it with a newly articulated standard that leads to nothing short of ad hoc decision making. In the area of mandamus jurisprudence, the Texas Supreme Court has, from time to time, developed different ways to circumvent the common law history …

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An Inclusive, Progressive National Savings And Financial Services Policy, Michael S. Barr Jan 2007

An Inclusive, Progressive National Savings And Financial Services Policy, Michael S. Barr

Articles

How many of us walk by the signs for "Checks Cashed Here," "Money Orders for Sale," and "Payday Loans: Get Cash Quick" without thinking about the implications of those signs for the daily lives of lower-income households? Most of us can take for granted getting our paychecks directly deposited into our bank accounts, writing a check, or storing our money in an account. We often struggle to save for longer-term goals, such as our children's education, or retirement, but most of us, most of the time, do not worry whether our savings or insurance will be enough to get us …

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Does Stare Decisis Apply In The Eighth Amendment Death Penalty Context, Meghan J. Ryan Jan 2007

Does Stare Decisis Apply In The Eighth Amendment Death Penalty Context, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

Throughout the past few decades, the Supreme Court has steadily chipped away at the death penalty. It was only recently, however, that courts have confronted what role precedent plays in the Eighth Amendment death penalty context. Surprisingly, few scholars have yet explored this important and complicated issue. Precedent in this area is unique because the law of the Eighth Amendment is always changing and the Eighth Amendment has been interpreted to be applied more broadly in the death penalty context. This Article argues that precedent in the Eighth Amendment death penalty context does not apply in the typical fashion. Instead …

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Reading, Writing, And Citing: In Praise Of Law Reviews, Cameron Stracher Jan 2007

Reading, Writing, And Citing: In Praise Of Law Reviews, Cameron Stracher

NYLS Law Review

No abstract provided.

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Disney Examined: A Case Study In Corporate Governance And Ceo Succession, Lawrence Lederman Jan 2007

Disney Examined: A Case Study In Corporate Governance And Ceo Succession, Lawrence Lederman

NYLS Law Review

No abstract provided.

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Judicial Selection As It Relates To Gender Equality On The Bench, Adam Goldstein Jan 2007

Judicial Selection As It Relates To Gender Equality On The Bench, Adam Goldstein

Cardozo Journal of Equal Rights & Social Justice

The note examines the relationship between judicial selection methods and gender equality on the bench, arguing that merit selection does not necessarily lead to greater gender diversity compared to other methods like appointments or elections. Despite claims that merit-based systems promote diversity, empirical evidence suggests that elected judges may achieve comparable or greater gender representation.

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Subverting The Marriage-Amendment Crusade With Law And Policy Reform, Anita Bernstein Jan 2007

Subverting The Marriage-Amendment Crusade With Law And Policy Reform, Anita Bernstein

Faculty Scholarship

No abstract provided.

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The Gift Of Milner Ball, Thomas L. Shaffer Jan 2007

The Gift Of Milner Ball, Thomas L. Shaffer

Georgia Law Review

My friend and teacher Milner Ball speaks of the law as "systemic injustice." I find that a bit harsh and tend instead toward a way of looking at injustice that comes from the equally melancholy reflections of Robert E. Rodes, Jr., also my friend-my colleague, too-and also my teacher (in two senses, including the I-once-paid- tuition sense). Bob Rodes has noticed injustice as much as Milner has, but Bob, who tends to be an Erastian, would say it is not the law that is the source of injustice; it is not even the "system"; it is lawyers who are the …

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Representing Saddam Hussein: The Importance Of Being Ramsey Clark, Lonnie T. Brown, Jr. Jan 2007

Representing Saddam Hussein: The Importance Of Being Ramsey Clark, Lonnie T. Brown, Jr.

Georgia Law Review

This Article examines the professional life of former U.S. Attorney General Ramsey Clark in an effort to understand the many controversial representations and causes that he has undertaken during his post-government career. Professor Brown does so through the vehicle of perhaps Ramsey Clark's most perplexing client choice-deposed Iraqi President Saddam Hussein. Although Hussein had other competent attorneys prepared and willing to represent him, Ramsey Clark nevertheless felt compelled to volunteer his services to the defense team. Why would he do so, and was his decision an ethically proper one under the circumstances? These are the specific questions that this Article …

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Judicial Review Of Arbitration Awards In The Fifth Circuit., Christopher D. Kratovil Jan 2007

Judicial Review Of Arbitration Awards In The Fifth Circuit., Christopher D. Kratovil

St. Mary's Law Journal

In the wake of a defeat in arbitration, trial lawyers seek appellate counsel looking for some method to escape the arbitrator’s decision. Most leave such offices disappointed after having been informed arbitration awards will be set aside by the courts “only in very unusual circumstances.” The Federal Arbitration Act (FAA) fully endorses arbitration and liberally encourages its use as an alternative to traditional litigation. Consistent with Congress’ focus on speed, efficiency, and cost reduction, a critical goal of arbitration is to establish “finality” at the earliest possible point. Unfortunately, early finality is antithetical to robust appellate proceedings. Yet, the FAA …

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The Storm Between The Quiet: Tumult In The Texas Supreme Court, 1911-21., Michael S. Ariens Jan 2007

The Storm Between The Quiet: Tumult In The Texas Supreme Court, 1911-21., Michael S. Ariens

St. Mary's Law Journal

The Texas Supreme Court from 1911–1921 is best known not for the law it made or the opinions it wrote, but for its failure to decide cases. Although the supreme court’s difficulty in clearing its docket existed before 1911, the number of outstanding cases exploded during the second decade of the twentieth century. Arguably, the issue of statewide prohibition and the divergent views held on that issue by members of the Texas Supreme Court was the driving force behind the disharmony and dysfunctionality of the court during this decade. Statewide prohibition explains why elections of candidates to the court were …

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Setting The Limits In Texas Construction Law: A Look At The Surety's Limitations Under Indemnity Agreements And Equitable Subrogation Comment., John C. Warren Jan 2007

Setting The Limits In Texas Construction Law: A Look At The Surety's Limitations Under Indemnity Agreements And Equitable Subrogation Comment., John C. Warren

St. Mary's Law Journal

To clarify divergent case law, Texas courts should adopt good faith as the necessary standard governing indemnity agreements. Texas court decisions limiting settlement of bond claims by sureties can be split into three categories: (1) those cases where indemnity agreements fail to vest authority in the indemnitee to settle claims or require a good faith standard; (2) those expressly stating indemnitees have authority to settle claims in good faith; and (2) those expressly vesting a surety with exclusive rights to determine which bonded claims should be settled. Under the first line of cases courts apply common law indemnity principles requiring …

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Back To The Future: Is Form-Based Code An Efficacious Tool For Shaping Modern Civic Life?, Lolita Buckner Inniss Jan 2007

Back To The Future: Is Form-Based Code An Efficacious Tool For Shaping Modern Civic Life?, Lolita Buckner Inniss

Publications

This Essay serves as a critique of the New Urbanism in general and of form-based code in particular as a tool of the New Urbanism. It may be true that form-based code offers more flexibility than traditional zoning schemes and thus may offer some respite from acknowledged ills such as social and racial divisions created by exclusionary zoning and other tools, and from the relative inutility of single or limited use districts. However, I will argue that these benefits are eclipsed by some of the problems of form-based code. Form-based code is frequently hailed as a back to the future …

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Reflecting On The Dream Of The Marathon Man: Black Dean Longevity And Its Impact On Opportunity And Diversity, Leroy Pernell Jan 2007

Reflecting On The Dream Of The Marathon Man: Black Dean Longevity And Its Impact On Opportunity And Diversity, Leroy Pernell

Journal Publications

At the beginning of the 2005-2006 academic year there was, what many viewed, as a comparatively bounteous crop of African-American deans of ABA-approved law schools. However, several changes during that year caused the crop to diminish rapidly. At the time of this writing, there are eighteen deans of color at American Bar Association approved law schools within the United States. Of these, fifteen are African-American and two are Latino. Of this number, five African-American deans are deans of law schools associated with historically black universities. These comments address, not necessarily the absolute number of African-American or Latino deans at any …

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Suing Islam: Tort, Terrorism, And The House Of Saud, Don Garner, Robert L. Mcfarland Jan 2007

Suing Islam: Tort, Terrorism, And The House Of Saud, Don Garner, Robert L. Mcfarland

Oklahoma Law Review

No abstract provided.

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Appalachian Stereotypes And Mountain Top Removal, Jill M. Fraley Jan 2007

Appalachian Stereotypes And Mountain Top Removal, Jill M. Fraley

Scholarly Articles

The fight to save Appalachia from absolute devastation by mining companies has, thus far, been a losing battle. As the photographs recently published in Vanity Fair and Audubon so vividly proclaim, Appalachia—the great hidden forest of the United States—is still being laid to waste, mile by mile, despite the work of valiant activists. Although there have been numerous obstacles, the primary reason for failure is wrapped up in the image of Appalachia in the public consciousness. This single hurdle—the image of Appalachia—stands behind, buttressing numerous obstacles to ending mountain top removal mining.

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