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Articles 61 - 90 of 401
Full-Text Articles in Law and Society
Ethical Issues Associated With Multidisciplinary Practices In Texas., Michael Kelly
Ethical Issues Associated With Multidisciplinary Practices In Texas., Michael Kelly
St. Mary's Law Journal
In 2000, the American Bar Association House of Delegates voted to uphold the ban on multidisciplinary practices (MDPs) set out in Rule 5.4 of the Model Rules of Professional Conduct (Model Rules). In 2009, the ABA announced the creation of the Ethics 20/20 Commission to review the Model Rules in the context of globalization. The Commission announced it was looking into alternative business structures, including MDPs. In an MDP a client can seek the advice of several professionals with experience in different disciplines working in a single business. Under Rule 5.4, a lawyer is prohibited from sharing legal fees with …
Capteton V. A.T. Massey Coal Co.: The Texas Implications., Catherine Stone, Wendy Martinez
Capteton V. A.T. Massey Coal Co.: The Texas Implications., Catherine Stone, Wendy Martinez
St. Mary's Law Journal
In Caperton v. A.T. Massey Coal Co., the United States Supreme Court addressed whether the Due Process Clause of the United States Constitution was violated by the denial of a motion to recuse. The motion sought to recuse a Supreme Court of Appeals Justice from West Virginia. The justice received an extraordinary campaign contribution from the chief officer of a corporate party to a case pending before the court. Several Texas courts addressed whether recusal was necessary based on campaign contributions prior to the decision in Caperton. Texas courts have universally held that recusal was not required. The United States …
The Power To End War: The Extent And Limits Of Congressional Power., Adam Heder
The Power To End War: The Extent And Limits Of Congressional Power., Adam Heder
St. Mary's Law Journal
Congress has several options in limiting the execution of war, however, Congress has no implied constitutional authority to terminate a war. Congress may limit the scope at the outset of the war, dissolve the army, or use its appropriation power. Congress may also impeach the President. Domestic statutes, the Court’s strong protection of essential liberties, and the democratic process further check the President’s power. Short of these, however, neither the Constitution nor subsequent case law gives Congress any definitive power to end or effectively limit the President’s ability to conduct a war. Congress gets its “bite at the apple” at …
Danger Or Resort To Underwear: The Safford Unified School District No. 1 V. Redding Standard For Strip Searching Public School Students., Joseph O. Oluwole
Danger Or Resort To Underwear: The Safford Unified School District No. 1 V. Redding Standard For Strip Searching Public School Students., Joseph O. Oluwole
St. Mary's Law Journal
Safford Unified Sch. Dist. No. 1 v. Redding (Redding III) represents a pivotal decision in school search and seizure jurisprudence, specifically regarding strip searches of students. Redding III establishes constraints specific to strip searches on the search and seizure authority of school officials. Redding III is intended to provide a uniform test for the judiciary and school officials when evaluating the reasonableness of strip searches of students. The Court explicitly interposed a “reliable knowledge” element requiring: (1) the degree to which known facts imply prohibited conduct; (2) the specificity of the information received; and (3) the reliability of its source. …
Civil Jury Trials R.I.P. - Can It Actually Happen In America Essay., Royal Furgeson
Civil Jury Trials R.I.P. - Can It Actually Happen In America Essay., Royal Furgeson
St. Mary's Law Journal
Civil jury trials in America have been declining at a steady rate for the last thirty years. This is a well-documented trend. If the trend continues, within the foreseeable future, civil jury trials in American may eventually become extinct. Jury trials have been central to justice in America and its states since their inception. Their importance has been stated as bringing accountability to the law and to society. As all persons, even the powerful and wealthy ones, are accountable under the law. Yet, as important as juries and jury trials are to the health of justice in America, the civil …
Ten Years After Burrow V. Arce: The Current State Of Attorney Fee Forfeiture., Jeffrey A. Webb, Blake W. Stribling
Ten Years After Burrow V. Arce: The Current State Of Attorney Fee Forfeiture., Jeffrey A. Webb, Blake W. Stribling
St. Mary's Law Journal
“Extreme [attorney] misconduct may warrant an extreme remedy.” Fee forfeiture certainly constitutes an extreme remedy, at least compared to the ordinary remedy for violation of a legal duty. But neither the degree to which the remedy is extreme nor how extreme the misconduct must first be before the forfeiture becomes appropriate is apparent in light of the Texas Supreme Court’s decision in Burrow v. Arce. Understanding the confusion which has arisen with regard to Burrow’s impact depends in large measure on a thorough evaluation of (1) the basis for the court’s determinations relating to forfeiture, (2) the sources from which …
Patent-Holding Patent Attorneys: Conflicts Of Interests, Confidentiality, And Employment Issues Comment., Ashley R. Presson
Patent-Holding Patent Attorneys: Conflicts Of Interests, Confidentiality, And Employment Issues Comment., Ashley R. Presson
St. Mary's Law Journal
Patents are grants issued by the United States Patent and Trademark Office (USPTO) which confer upon the holder, the patentee, patent rights to such intellectual property as inventions, technologies, and processes. Patent rights include the right to exclude others from “making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States.” Once the USTPO has granted a patent, the inventor may market the product. Patentees who do not have the funds or time to market the product may profit by conveying the legal rights conferred by the patent to other …
Should Texas's Former Ban On Obscene-Device Promotion Pass Constitutional Muster Under A Murky Lawrence Comment., Laura M. Clark
Should Texas's Former Ban On Obscene-Device Promotion Pass Constitutional Muster Under A Murky Lawrence Comment., Laura M. Clark
St. Mary's Law Journal
When the Fifth Circuit freed Texans to promote and distribute sexual devices without criminal penalties, it created a split with the Eleventh Circuit’s decision to uphold Alabama’s ban. Both courts based their rulings on the U.S. Supreme Court’s decision in Lawrence v. Texas, which invalidated Texas’s statute banning homosexual sodomy. In upholding Alabama’s sex-toy statute in 2007, the Eleventh Circuit found no fundamental right to sexual privacy under Lawrence and held public morality was a sufficiently rational basis for the statute. The court distinguished Lawrence, which dealt with prohibition of private conduct, rather than public commercial activity. The Fifth Circuit …
Texas Law's Life Or Death Rule In Capital Sentencing: Scrutinizing Eight Amendment Violations And The Case Of Juan Guerrero, Jr., John Niland, Riddhi Dasgupta
Texas Law's Life Or Death Rule In Capital Sentencing: Scrutinizing Eight Amendment Violations And The Case Of Juan Guerrero, Jr., John Niland, Riddhi Dasgupta
St. Mary's Law Journal
The United States Supreme Court has never explained the Eighth Amendment’s impact in noncapital cases involving a mentally retarded or brain-injured defendant. The Court has not provided guidance to legislatures or lower courts concerning the acceptable balancing of aggravating and mitigating factors and the role that mitigating factors must play in the sentencing decision. A definitive gap exists between the protections afforded to a criminal defendant facing a life sentence as opposed to those confronted with the death penalty. The Court requires sentencing procedures to consider aggravating and mitigating factors, including mental retardation and brain damage, when imposing a death …
Practitioners Beware: Under Amended Trap 47, Unpublished Memorandum Opinions In Civil Cases Are Binding And Research On Westlaw And Lexis Is A Necessity., Andrew T. Solomon
Practitioners Beware: Under Amended Trap 47, Unpublished Memorandum Opinions In Civil Cases Are Binding And Research On Westlaw And Lexis Is A Necessity., Andrew T. Solomon
St. Mary's Law Journal
In 2003 and 2008, the Texas Rule of Appellate Procedure (TRAP) 47 was amended. TRAP 47 is the rule which governs the issuance, citation, and precedential value of unpublished and memorandum opinions. The 2003 amendment was designed to make the law more readily available by prohibiting the issuance of unpublished opinions in civil cases and authorizing memorandum opinions in place of unpublished opinions. Despite its intention, the 2003 amendment failed to make civil case law more readily available. This is because such new opinions are only available via electronic repository, such as Westlaw or Lexis. As a result, to completely …
Professional Malpractice In A World Of Amateurs., Thomas D. Morgan
Professional Malpractice In A World Of Amateurs., Thomas D. Morgan
St. Mary's Law Journal
Clients experience the speed at which the world changes, both technologically and socially. They expect lawyers to keep pace. The technology which permits lawyers to deliver legal services faster also chains lawyers to their electronic devices. This technology has also led to a growing market of those who promise to do the same work faster, better, and cheaper. Such developments will ultimately affect how lawyers view professional malpractice or the way the industry understands “competence and diligence normally exercised by lawyers.” The malpractice question becomes: to what standard of care and competence should such “amateur” lawyers be held? The legal …
Could Government Speech Endorsing A Higher Law Resolve The Establishment Clause Crisis., Bruce Ledewitz
Could Government Speech Endorsing A Higher Law Resolve The Establishment Clause Crisis., Bruce Ledewitz
St. Mary's Law Journal
The Establishment Clause crisis exists due to the Supreme Court’s promise that America would have a secular government—meaning one which was neutral between religion and irreligion, as well as being neutral to all religions. This promise evolved pursuant to the Supreme Court’s interpretation of the Establishment Clause. Nevertheless, the commitment to neutrality was never carried to fulfillment by the Court. The crisis may be illustrated by Congress’ addition of the words “under God” to the Pledge of Allegiance in 1954. This addition seemed to violate the promise of neutrality made by the Supreme Court in Everson v. Board of Education …
Of Lies And Disclaimers - Contracting Around Fraud Under Texas Law., Robert K. Wise, Andrew J. Szygenda, Thomas F. Lillard
Of Lies And Disclaimers - Contracting Around Fraud Under Texas Law., Robert K. Wise, Andrew J. Szygenda, Thomas F. Lillard
St. Mary's Law Journal
The Texas Supreme Court has failed to provide a bright-line test in determining whether reliance disclaimers are enforceable. A reliance disclaimer is a provision in a contract that disclaims all extra-contractual representations and provides that the contracting parties are not relying on any such representations. By including a reliance disclaimer, a contracting party may be attempting to immunize itself from liability for false statements made during negotiations. Even if a contracting party’s misrepresentations or non-disclosures were made with fraudulent intent, Texas law gives contracting parties broad freedom to contract around misrepresentation claims. In Forest Oil Corp. v. McAllen, the Texas …
The Yearning For Zion Raid And Its Impact On Texas Child Welfare Cases: How A Botched Rescue Effort Exposed A Need To Refocus Efforts On Effective Service Plans Comment., Shannon K. Dunn
St. Mary's Law Journal
The raid of the Yearning for Zion ranch exposed fundamental flaws in the operation of the Texas Department of Children and Family Services (the Department). In the raid, the Department took custody of 468 children without a court order and removed them from their homes. This is one of the most glaring examples of the Department’s disregard for the Texas Family Code. Subchapter B of section 263 of the Texas Family Code mandates for the creation and implementation of a comprehensive service plan whenever the Department removes a child from his home. The Department, however, failed to create service plans …
Plea To The Jurisdiction: Defining The Undefined., Rebecca Simmons, Suzette Kinder Patton
Plea To The Jurisdiction: Defining The Undefined., Rebecca Simmons, Suzette Kinder Patton
St. Mary's Law Journal
Pleas to the jurisdiction have been part of Texas jurisprudence since shortly after Texas became a state. The resulting confusion over the procedure and standards to be employed in resolving a plea was partially alleviated by the Texas Supreme Court’s decision in Texas Department of Parks and Wildlife v. Miranda. From a number of reports from Texas’s reviewing courts, however, it is evident the courts continue to struggle with the plea. Currently there are no established procedural rules to assist with the resolution of a plea to the jurisdiction. Thus, procedures vary from court to court and case to case. …
Loyalty In Limbo: The Peculiar Case Of Attorneys' Loyalty To Clients., Eli Wald
Loyalty In Limbo: The Peculiar Case Of Attorneys' Loyalty To Clients., Eli Wald
St. Mary's Law Journal
Attorney loyalty to clients is considered a cornerstone of the attorney-client relationship. Yet, loyalty is underexplored, misunderstood, and the subject of heated discord. Advocates of client-centered loyalty and their opponents both fail to provide a compelling accounting of loyalty to clients and its consequences. Leaving loyalty in limbo is an unacceptable state of affairs. The legal profession bears the continuous burden of accounting for its own practices. Because the Bar cannot assert broad client-centered loyalty as self-explanatory, the burden of disproving loyalty shifts to the critics. Critics of broad loyalty to clients are not helping advance the discourse by advocating …
Procedural And Judicial Limitations On Voir Dire - Constitutional Implications And Preservation Of Error In Civil Cases., R. Brent Cooper, Diana L. Faust
Procedural And Judicial Limitations On Voir Dire - Constitutional Implications And Preservation Of Error In Civil Cases., R. Brent Cooper, Diana L. Faust
St. Mary's Law Journal
The right to a trial by jury is meaningless without an effective voir dire. Recurring tort reform, rapid technological advancements, immediate access to media coverage of incidents that give rise to litigation have greatly expanded. Consequentially, courts are faced with the prospect that potential jurors’ opinions and attitudes have been tainted. In addition to these issues, trial courts display significant interest in promptly expediting the advancement of their dockets. Voir dire is an essential element of trial strategy. Voir dire allows counsel to establish rapport with potential jurors, introduce them to the issues and facts of the case, and identify …
The Texas Supreme Court's Erroneous Doctrine Of Implied Appellate Jurisdiction., Charles R. Flores
The Texas Supreme Court's Erroneous Doctrine Of Implied Appellate Jurisdiction., Charles R. Flores
St. Mary's Law Journal
A Texas statute gave final appellate jurisdiction over cases not to the state supreme court but to the intermediate courts of appeals. After losing at the appellate level, one of the parties in Eichelberger v. Eichelberger appealed to the state supreme court despite the statute. But because the court of appeals decision conflicted with a United States Supreme Court decision, the Texas Supreme Court held its jurisdiction should be implied. Though legal commentators declared the decision an abrupt departure from standards for judicial decisions, they postulated it would be invoked so infrequently to do no lasting harm to Texas jurisprudence. …
The Castle Doctrine: An Expanding Right To Stand Your Ground Comment., Denise M. Drake
The Castle Doctrine: An Expanding Right To Stand Your Ground Comment., Denise M. Drake
St. Mary's Law Journal
Recently, the Texas Legislature passed Senate Bill 378 effectively terminating a person’s “duty to retreat” when confronted with a criminal attack of either great bodily injury or death. Complicated issues of innocence and guilt arise when one employs deadly force as a means of self-defense. Furthermore, tragic mistakes occur when people preemptively resort to deadly force before the realization of such a threat. Societal questions still exist concerning the possibility that self-defense will turn into self-justice. Critics argue the law encourages a vigilante society, substituting law enforcement help with self-justice. Conversely, supporters believe the bill serves as a deterrent from …
Loose Lips Sink Attorney-Client Ships: Unintended Technological Disclosure Of Confidential Communications Essay., Bill Piatt, Paula Dewitte
Loose Lips Sink Attorney-Client Ships: Unintended Technological Disclosure Of Confidential Communications Essay., Bill Piatt, Paula Dewitte
St. Mary's Law Journal
In general, attorneys must not reveal confidential information relating to the representation of their clients. Attorneys must make reasonable efforts to ensure the attorneys they supervise, as well as their nonlawyer employees, maintain client confidences. In modern days, technology virtually guarantees attorneys and clients will communicate electronically. While most attorneys would not knowingly disclose client confidences, there is a growing problem of unintended disclosure through electronic means. On a practical level, maintaining confidence is of utmost importance to both attorneys and clients. Attorneys may believe they are using good faith and competent, reasonable actions to protect their clients’ information from …
A Meaningless Relationship: The Fifth Circuit's Use Of Dismissed And Uncharged Conduct Under The Federal Sentencing Guidelines Recent Development., Erin A. Higginbotham
A Meaningless Relationship: The Fifth Circuit's Use Of Dismissed And Uncharged Conduct Under The Federal Sentencing Guidelines Recent Development., Erin A. Higginbotham
St. Mary's Law Journal
The Fifth Circuit’s failure to require the uncharged conduct to have a meaningful relationship with the conduct of conviction is flawed. An amendment of section 5K2.21 specifically approved the consideration of uncharged or dismissed offenses to serve as a basis for an upward departure to reflect the actual seriousness of the offense. Confusion amongst federal circuit courts of appeal arose as to whether such conduct included uncharged or dismissed criminal offenses. Interpreting the amendment’s language has caused a circuit split. The Fifth Circuit erroneously interpreted section 5K2.21 as to require nothing more than a “remote connection” between the uncharged crime …
In The Wake Of Low V. Henry: Is Pre-Suit Discovery Now A Reality In Texas., John G. Lione Jr., Ryan W. Lione
In The Wake Of Low V. Henry: Is Pre-Suit Discovery Now A Reality In Texas., John G. Lione Jr., Ryan W. Lione
St. Mary's Law Journal
Following the Texas Supreme Court decision in Low v. Henry, the issue of whether an attorney may be liable for filing a “groundless pleading” has come to the forefront of Texas jurisprudence. This recent decision ought to pique Texas attorneys’ attention. In reprimanding egregious attorney conduct, did the Texas Supreme Court’s tightening of the Texas Rules of Civil Procedure increase the duties and responsibilities of all Texas attorneys by establishing what may amount to pre-suit discovery? Yet, courts presume pleadings and motions are filed in good faith, and the party seeking sanctions bears the burden of rebutting this presumption. The …
Assault Upon The Citadel Of Privity: The Coexistence Of Strict, Privity And Belt V. Oppenheimer, Blend, Harrison & (And) Tate, Inc. Comment., C. John Muller Iv
Assault Upon The Citadel Of Privity: The Coexistence Of Strict, Privity And Belt V. Oppenheimer, Blend, Harrison & (And) Tate, Inc. Comment., C. John Muller Iv
St. Mary's Law Journal
The practicing attorney must have a complete understanding of legal malpractice liability. Managing this risk can be a precarious responsibility when the law is not clearly defined. This is compounded by the steady erosion of attorney-client privity barriers making it easier for third party non-clients to sue lawyers for legal malpractice. This is the current state of matters in Texas since the Texas Supreme Court decided Belt v. Oppenheimer, Blend, Harrison & Tate, Inc. on May 5, 2006. The Belt court determined personal representatives of an estate may bring a malpractice claim against the decedent’s attorneys. The Belt court was …
The Competency Of The Sham Affidavit As Summary Judgment Proof In Texas., David F. Johnson, Joseph P. Regan
The Competency Of The Sham Affidavit As Summary Judgment Proof In Texas., David F. Johnson, Joseph P. Regan
St. Mary's Law Journal
The United States Court of Appeals for the Fifth Circuit first addressed the sham affidavit theory in Kennett-Murray Corp. v. Bone. This is the doctrine regarding assertions made by affidavit in order to prove summary judgment which are contrary to prior statements given, usually during a deposition. More recently, the Fifth Circuit has used the theory to strike affidavits where it found a sufficient inconsistency existed. This Court has also applied the sham affidavit theory to any prior sworn testimony, not just deposition testimony. The adoption of this theory overturned the precedent which stated a factual issue existed where a …
The All-Woman Texas Supreme Court: The History Behind A Brief Moment On The Bench., Alice G. Mcafee
The All-Woman Texas Supreme Court: The History Behind A Brief Moment On The Bench., Alice G. Mcafee
St. Mary's Law Journal
On the surface, there is nothing particularly noteworthy about the case of Johnson v. Darr, and, in fact it was not the merits of the case that made the headlines. It was the makeup of the tribunal. Long before women in Texas were even granted the right to serve on juries and before any woman ever served as a judge on any of the lower Texas courts, the judges appointed to hear the case of Johnson v. Darr were all women. This was the first time a woman was appointed in any capacity to serve on the Texas judiciary and …
A Marginal Tax: The New Franchise Tax In Texas Comment., David A. Vanderhider
A Marginal Tax: The New Franchise Tax In Texas Comment., David A. Vanderhider
St. Mary's Law Journal
Taxation has long been a point of contention for both individuals and businesses. Primarily, taxation serves as a convenient and calculated method of allocating precious resources to areas in need. Although many states use property and income taxes as the preferred methods for funding these programs, Texas has a constitutional restriction on state taxation of individuals’ incomes. This means Texas has largely relied on property and business taxes to fund these programs. In 1991, while trying to avoid unconstitutional taxes on individuals’ incomes, the Texas Legislature adopted a franchise tax which taxed Texas businesses according to their capital. In 2006, …
Surreptitious Recording By Attorneys: Is It Ethical., Carol M. Bast
Surreptitious Recording By Attorneys: Is It Ethical., Carol M. Bast
St. Mary's Law Journal
Ethical rules generally set forth commonly held ethics principles in broad terms which usually generate little debate. What has generated a great deal of debate is whether it is ethical for an attorney to record a conversation. The American Bar Association’s (ABA) view of the issue has shifted over the years. Originally, the practice was held to be unethical except for certain well-defined exceptions involving government attorneys. The 2001 ABA opinion officially withdrew the original opinion allowing attorneys to secretly record a conversation with a non-client where it is not illegal. States’ opinions as to whether conversation recording is ethical …
It's About Time: The Need For A Uniform Approach To Using A Prior Conviction To Impact A Witness., Robert F. Holland
It's About Time: The Need For A Uniform Approach To Using A Prior Conviction To Impact A Witness., Robert F. Holland
St. Mary's Law Journal
In Texas, no uniform approach exists in determining whether to admit evidence of a prior conviction as a technique to impeach a witness. This lack of uniformity leads to significant consequences for the parties and poses a potential prejudicial effect on the truthful character of a witness. Furthermore, there is currently no bright-line judicial standard when evaluating the admissibility of certain prior convictions. Although the Texas Court of Criminal Appeals in Theus v. State provided a non-exhaustive set of factors for trial judges to consider, the court has yet to clarify particular aspects of how to properly apply Texas Rule …
Ethical Plea Bargaining Under The Texas Disciplinary Rules Of Professional Conduct., Edward L. Wilkinson
Ethical Plea Bargaining Under The Texas Disciplinary Rules Of Professional Conduct., Edward L. Wilkinson
St. Mary's Law Journal
Plea bargaining is such an essential component of the administration of justice that disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons. Even though 95% of felony criminal cases nationwide are resolved through plea bargaining, there are no specific ethical rules governing the practice. The exhortation in article 2.01 of the Texas Code of Criminal Procedure states it is the primary duty of all prosecuting attorneys to see that justice is done, rather than merely convicting. In order to determine the ethical boundaries of plea bargaining, …
A Pragmatic Look At Mediation And Collaborative Law As Alternatives To Family Law Litigation Comment., Elizabeth F. Beyer
A Pragmatic Look At Mediation And Collaborative Law As Alternatives To Family Law Litigation Comment., Elizabeth F. Beyer
St. Mary's Law Journal
Since close to half the country’s marriages end in divorce, marriage dissolution is quite a lucrative business for attorneys. Also, fewer people are entering marriage in the first place. Fewer marriages combined with more children born out of wedlock create multitudinous legal problems and family disputes centering around those children. In addition to initial divorce filings and suits affecting the parent-child relationship, dissolution of marriage cases often creates additional litigation down the road. As a solution to the problems caused by the expense and toil of this litigation, alternative dispute resolution (ADR) offers several options for family disputants. Two popular …