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Articles 121 - 150 of 436
Full-Text Articles in Law and Society
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 …
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 …
American Legal Ethics In An Age Of Anxiety., Michael Ariens
American Legal Ethics In An Age Of Anxiety., Michael Ariens
St. Mary's Law Journal
The thesis of my article, “American Legal Ethics in an Age of Anxiety,” is that the historical development of American legal ethics was regularly accompanied by an anxiety within the profession. In general, I suggest the legal profession’s understanding of its ethical precepts has been molded and reshaped during periods of professional anxiety. The profession’s understanding of legal ethics changed dramatically during various crises in the 19th century, exemplified by the different approaches taken by David Hoffman in the mid-1830s, George Sharswood in the mid-1850s, and David Dudley Field in the early 1870s. In each case, however, the triggering event …
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 …
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 …
Enforceability Of General Advance Waivers Of Conflicts Of Interest The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility., Nathan M. Crystal
Enforceability Of General Advance Waivers Of Conflicts Of Interest The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility., Nathan M. Crystal
St. Mary's Law Journal
Conflicts of interest among clients present some of the most pervasive ethical problems lawyers face. In many instances the affected clients may consent to a conflict. Under the ABA Model Rules of Professional Conduct, for consent to be effective, it must be “informed” and must be “confirmed in writing.” Informed consent to such conflict is often referred to as a “waiver” of the conflict. Many law firms have begun seeking “general advance waivers” of conflicts of interest. The ethical rules did not deal with the issue of advance waiver until 2002. Both Model Rules and the Restatement of the Law …
The Changing Face Of Vested Rights In Texas Land Development: A New Hat For An Old Law., Rebecca A. Copeland
The Changing Face Of Vested Rights In Texas Land Development: A New Hat For An Old Law., Rebecca A. Copeland
St. Mary's Law Journal
The Texas Legislature has recently made changes to Chapter 245 of the Local Government Code giving vested rights greater protection than ever before. Owners and developers now have greater protections, however, there are many circumstances under which the application of the law is unclear. Chapter 245 governs the issuance of permits for local development. The greater protections provided by the amendments include: defining the filing date upon which rights vest as the date “fair notice” is given to the regulatory agency, establishing a certified mail date as prima facie proof of the application’s filing date, and providing substantive rules governing …
Parties' Defenses To Binding Arbitration Agreements In The Health Care Field & The Operation Of The Mccarran-Ferguson Act Comment., Elizabeth K. Stanley
Parties' Defenses To Binding Arbitration Agreements In The Health Care Field & The Operation Of The Mccarran-Ferguson Act Comment., Elizabeth K. Stanley
St. Mary's Law Journal
Arbitration is a process which allows parties voluntarily to refer their disputes to an impartial third person, an arbiter, selected by them to determine the parties’ rights and liabilities. Initially, arbitration was encouraged between corporate entities with equal bargaining power. But, due to federal policy favoring arbitration, the use of predispute arbitration agreements have increased dramatically, and such clauses can now be found in many noncommercial consumer contracts, especially those in the health care industry. The strong federal policy favoring arbitration originated with Congress’ passing of the Federal Arbitration Act (FAA). Under the FAA, an arbitration agreement is enforceable if …
Microsoft Windows Vista: The Beginning Or The End Of End-User License Agreements As We Know Them Recent Development., Rebecca K. Lively
Microsoft Windows Vista: The Beginning Or The End Of End-User License Agreements As We Know Them Recent Development., Rebecca K. Lively
St. Mary's Law Journal
Microsoft Windows Vista’s widespread use and influence on the market represents an ideal case study on the enforceability, pitfalls, and future of the End-User License Agreement (EULA). Since the release of the Windows Vista operating system in early 2007, Microsoft consumers often do not realize they are entering into a contract with Microsoft when they install Windows Vista onto their computer. Microsoft consumers probably do not realize that they may be clicking away valuable rights. In analyzing the enforceability of the specific terms of the Windows Vista EULA, Washington law will be the primary source because the Windows Vista EULA …
Comparative Responsibility In Nonsubscriber Litigation Revisited After Kroger Co. V. Keng., Trek C. Doyle, Jarrett R. Andrews
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. …
Current Trends In Texas Charge Practice: Preservation Of Error And Broad-Form Use., William G. Arnot Iii, David Fowler Johnson
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 …
The Path Of Least Resistance: The Effects Of Groundwater Law's Failure To Evolve With Changing Times Comment., Bruce E. Toppin Iii
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 …
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. …
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
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 …
Why Legal Ethics Rules Are Relevant To Lawyer Liability The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility., Douglas R. Richmond
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, …
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
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 …
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 …
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
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 …
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
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 …
Judicial Review Of Arbitration Awards In The Fifth Circuit., Christopher D. Kratovil
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 …