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Full-Text Articles in Legal Ethics and Professional Responsibility

The Spanish Predominant Language Ordinance: Is Spanish On The Way In And English On The Way Out., Adriana Resendez Jan 2001

The Spanish Predominant Language Ordinance: Is Spanish On The Way In And English On The Way Out., Adriana Resendez

St. Mary's Law Journal

El Cenizo's Spanish language ordinance is likely to survive a constitutional challenge. The City Council of El Cenizo’s Spanish language ordinance, however, has generated a significant amount of controversy in the United States. The ordinance stipulates that all city council meetings will be made in the city’s predominant language—Spanish. Critics argue that the ordinance has made Spanish the official language. Critics also argue that the ordinance is discriminatory toward English speakers. English only advocacy groups, such as English First and U.S. English, argue that the ordinance will create a trend across the United States of immigrants refusing to embrace an …

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Heci V. Neel: Application Of The Discovery Rule To Damages Arising Out Of Oil And Gas Leases., L. Melanie Martin Jan 2001

Heci V. Neel: Application Of The Discovery Rule To Damages Arising Out Of Oil And Gas Leases., L. Melanie Martin

St. Mary's Law Journal

Texas landowners face a heavy burden in bringing claims for damages arising out of inherently undiscoverable damages to mineral estates because the statute of limitations starts at the time of injury rather than the time of discovery. Previously, courts adopted the discovery rule as an exception to the statute of limitations, effectively stalling the starting point of the statute of limitations. A two-pronged threshold inquiry is held before the application of the discovery rule. First, the court must determine if the injury is inherently undiscoverable or not detected despite the use of due diligence. Secondly, there must be objectively verifiable …

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Whither The Texas Tort Claims Act: What Remains After Official Immunity., J. Bonner Dorsey Jan 2001

Whither The Texas Tort Claims Act: What Remains After Official Immunity., J. Bonner Dorsey

St. Mary's Law Journal

Abstract Forthcoming.

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Has The Fog Cleared - Attorney Work Product And The Attorney-Client Privilege: Texas's Complete Transition Into Full Protection Of Attorney Work In The Corporate Context., Fred A. Simpson Jan 2001

Has The Fog Cleared - Attorney Work Product And The Attorney-Client Privilege: Texas's Complete Transition Into Full Protection Of Attorney Work In The Corporate Context., Fred A. Simpson

St. Mary's Law Journal

The following discussion in this Article fills the gaps in the substantive rules surrounding the attorney work product doctrine and the attorney-client privilege, thereby encouraging practitioners to utilize these tools more freely. Initially, the attorney-client privilege contemplated application only to individuals. As the rule developed in the United States, however, the scope of the privilege broadened until it included corporations. Since 1982, Texas has provided for the attorney-client privilege in Texas Rule of Civil Evidence 503.149. Notably, the Rule defined client in such a way as to include a corporation. Unlike the attorney-client privilege, the work product doctrine developed much …

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No Taxation Without Realization: Srivastava V. Commissioner, The Fifth Circuit's Answer To Tax Treatment Of Attorney's Fees Under A Contingency Fee Agreement., Bernard J. Grant Iii Jan 2001

No Taxation Without Realization: Srivastava V. Commissioner, The Fifth Circuit's Answer To Tax Treatment Of Attorney's Fees Under A Contingency Fee Agreement., Bernard J. Grant Iii

St. Mary's Law Journal

Abstract Forthcoming.

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Jury Erosion: The Effects Of Robinson, Havner, & (And) Gammill On The Role Of Texas Juries., Ricky J. Poole, Kimberly S. Keller Jan 2001

Jury Erosion: The Effects Of Robinson, Havner, & (And) Gammill On The Role Of Texas Juries., Ricky J. Poole, Kimberly S. Keller

St. Mary's Law Journal

Abstract Forthcoming.

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Attorney Referral For Medical Treatment: A Wolf In Disguise., Martin J. Phipps Jan 2001

Attorney Referral For Medical Treatment: A Wolf In Disguise., Martin J. Phipps

St. Mary's Law Journal

Texas attorneys should be obligated to disclose whether they referred their client to a pre-selected physician. Plaintiff attorneys, however, have been allowed to withhold this information from the court arguing the information is privileged. The practice of using a pre-selected physician is unethical and unfairly prejudicial. If the attorney and physician have an agreement, the attorney is likely to send numerous clients to that specific physician in order to receive a discount. The physician in turn is likely to recommend medically unnecessary procedures in order to inflate money damages. Therefore, in order to prevent potential abuse between the attorney-physician relationship, …

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Getting It Right From The Beginning: A Critical Examination Of Current Criminal Defense In Texas And Proposal For A Statewide Public Defender System., Rebecca Copeland Jan 2001

Getting It Right From The Beginning: A Critical Examination Of Current Criminal Defense In Texas And Proposal For A Statewide Public Defender System., Rebecca Copeland

St. Mary's Law Journal

Abstract Forthcoming.

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Religion In Public Schools: Let Us Pray - Or Not., Carolyn Hanahan, David M. Feldman Jan 2001

Religion In Public Schools: Let Us Pray - Or Not., Carolyn Hanahan, David M. Feldman

St. Mary's Law Journal

This Essay addresses judicial interpretation and application of the religious protections of students in public schools. Part II addresses the evolution of the law governing prayer in public schools, including the creation of judicial tests utilized in determining whether a school district has impeded the rights of students in the area of religion. Part III examines the application of these tests to various activities, including a discussion of the disparity in judicial interpretation with respect to the permissibility of prayer at public school functions. This Essay concludes with a discussion analyzing the effect of the recent United States Supreme Court …

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Those Dangerous Student Prayers., Kelly J. Coghlan Jan 2001

Those Dangerous Student Prayers., Kelly J. Coghlan

St. Mary's Law Journal

Abstract Forthcoming.

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Parental Rights In The Twenty-First Century: Parents As Full Partners In Education., Linda L. Schlueter Jan 2001

Parental Rights In The Twenty-First Century: Parents As Full Partners In Education., Linda L. Schlueter

St. Mary's Law Journal

Abstract Forthcoming.

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Interpreting Mineral And Royalty Deeds: The Legacy Of The One-Eighth Royalty And Other Stories., Laura H. Burney Jan 2001

Interpreting Mineral And Royalty Deeds: The Legacy Of The One-Eighth Royalty And Other Stories., Laura H. Burney

St. Mary's Law Journal

Mineral and royalty deeds are notoriously difficult to interpret. Courts complicate the interpretive process in at least two ways. First, they produce opinions that fail to appreciate and explain unique oil and gas concepts. Second, they render deed records unreliable. A variety of title problems flow from this instability. However, a common trait is frequently encountered: the influence of the one-eighth royalty provision typically used for decades in oil and gas leases. Unfortunately, courts have failed to acknowledge this influence. For this reason, title litigation will continue to loom under the legacy of the one-eighth royalty, and title examiners will …

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Internet Property Rights: E-Trespass., John D. Saba Jr. Jan 2001

Internet Property Rights: E-Trespass., John D. Saba Jr.

St. Mary's Law Journal

Plaintiffs whose Internet property rights were violated have depended on the common law tort of trespass to chattels. Plaintiffs in Thrifty-Tel, Inc. v. Bezenek and CompuServe Inc. v. Cyber Promotions, Inc. successfully argued defendants trespassed their chattels. In Thrifty-Tel, defendants hacked into plaintiff’s system to obtain long-distance access codes. The court reasoned that electronic signals were tangible and indirect interference in the form of electronic trespass could support a claim for trespass to chattels. In CompuServe Inc., defendants used plaintiff's internet server to send out mass emails to plaintiff’s clients. The court upheld a permanent injunction holding that electronic signals …

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Much Ado About Spam: Unsolicited Advertising, The Internet, And You., Scot M. Graydon Jan 2000

Much Ado About Spam: Unsolicited Advertising, The Internet, And You., Scot M. Graydon

St. Mary's Law Journal

Internet users need protection from unsolicited commercial emails (UCEs), and this protection should come from federal legislation. Despite seventeen states having passed some sort of legislation regulating UCEs, this is insufficient to protect Internet users from UCEs. State laws are not uniformed and UCEs frequently cross state lines. Internet advertisers prefer commercial emails because of the ability to market to millions of consumers at a low cost. Consumers, however, suffer delays to their Internet access because of the amount of data UCEs accumulate, and in some cases may have to pay additional fees if they exceed the data limits of …

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A Holy Mess: School Prayer, The Religious Freedom Restoration Act Of Texas, And The First Amendment., David S. Stolle Jan 2000

A Holy Mess: School Prayer, The Religious Freedom Restoration Act Of Texas, And The First Amendment., David S. Stolle

St. Mary's Law Journal

In Employment Division, Department of Human Resources of Oregon v. Smith, the U.S. Supreme Court held the traditional compelling state interest standard for Free Exercise Clause jurisprudence should be replaced by a new test requiring a statute or government action to be facially neutral and generally applicable. In response to Smith, Congress, relying on its Enforcement Clause powers under the Fourteenth Amendment, attempted to resurrect the compelling state interest standard by passing the Religious Freedom of Restoration Act (RFRA). In June 1999, the Texas legislature passed the Texas Religious Freedom Restoration Act (TRFRA). This Comment argues the TRFRA is unnecessary …

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Adr: An Eclectic Array Of Processes, Rather Than One Eclectic Process, Lela P. Love, Kimberlee K. Kovach Jan 2000

Adr: An Eclectic Array Of Processes, Rather Than One Eclectic Process, Lela P. Love, Kimberlee K. Kovach

Articles

When mediators try to resolve a controversy by providing their analysis of the legal – or other – merits, they are providing the service that judges, arbitrators and neutral experts provide. In essence, such endeavors use the neutral’s judgment, award or opinion to determine or jump-start a resolution. This article urges that this add-on activity to mediation should be called by its proper name. The essay highlights the advantages of calling "mediation plus evaluation" a mixed process and discusses the advantages of having an eclectic and diverse mix of processes from which parties and counsel can choose to promote party …

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Texas Workers' Compensation: A Ten-Year Survey - Strengths, Weaknesses, And Recommendations., Phil Hardberger Jan 2000

Texas Workers' Compensation: A Ten-Year Survey - Strengths, Weaknesses, And Recommendations., Phil Hardberger

St. Mary's Law Journal

The present Texas Workers’ Compensation system began development in January of 1989 and has been in effect since 1991. Texas is the only state in which workers’ compensation coverage is optional. Alternative benefits plans are provided in some cases; however, many injured workers receive less than they would under the Texas Workers’ Compensation system. The current system uses supplemental income benefits (SIBs), meaning injured workers can be cut off from benefits if they are less than 15% impaired, and the maximum time to appeal each case is ninety days (Rule 130.5(e)). The 71st Texas Legislature focused on decreasing attorney involvement …

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Creative Sanctions For Discovery Abuse In Texas., Travis C. Headley Jan 2000

Creative Sanctions For Discovery Abuse In Texas., Travis C. Headley

St. Mary's Law Journal

Creative sanctions are necessary to deter litigants from abusing the discovery process. Under both the Federal Rules of Civil Procedure and the Texas Rules of Civil Procedure, creative sanctions are allowed and within a judge’s discretion. Federal Rule of Civil Procedure 37 and Texas Rule of Civil Procedure 215 provide judges a non-exhaustive list of available sanctions to deter abusive discovery practices. Nonetheless, discovery abuse has continued to escalate, and limited precedence exists in the field despite the increased use of sanctions. An unprecedented creative sanction was imposed by Judge Brotman of the District Court for the Virgin Islands. On …

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Apparently Substantial, Oddly Hollow: The Enigmatic Practice Of Justice, Heidi Li Feldman Jan 1999

Apparently Substantial, Oddly Hollow: The Enigmatic Practice Of Justice, Heidi Li Feldman

Michigan Law Review

The Practice of Justice: A Theory of Lawyers' Ethics, by William H. Simon, is one of the most thoughtful and important books in legal theory - not just legal ethics - published in the past ten years. Like David Luban's seminal contribution to legal ethics, Lawyers and Justice: An Ethical Study, published a decade ago, Simon's book is a deliberate rival to accounts of lawyers' professional responsibility that begin with a command to zealous advocacy, end with a prohibition on outright illegal conduct, and offer nothing in between. Authors and commentators have grown increasingly dissatisfied with this as the basic …

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Loss Of Earning Capcity Benefits In The Community Property Jurisdiction - How Do You Figure., Aloysius A. Leopold Jan 1999

Loss Of Earning Capcity Benefits In The Community Property Jurisdiction - How Do You Figure., Aloysius A. Leopold

St. Mary's Law Journal

In the interest of uniformity, benefits for the loss of earning capacity should be subject to the same legal principle when determining marital property rights, regardless of the context in which those rights arise. However, courts throughout the United States have relied upon four different methods to determine title to loss of earning capacity benefits upon divorce. These approaches include the unitary approach, the analytic approach, the mechanistic approach, and the case-by-case approach. Because the determination of title to benefits varies tremendously, the need for certainty in this area of the law is necessary particularly in light of the Texas …

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Texas Rule Of Evidence 503: Defining Scope Of Employment For Corporations Comment., Craig W. Saunders Jan 1999

Texas Rule Of Evidence 503: Defining Scope Of Employment For Corporations Comment., Craig W. Saunders

St. Mary's Law Journal

The attorney-corporate client privilege should be regarded as encompassing only communications made to the corporation’s counsel by employees in the scope of their employment. The Supreme Court of Texas and the Texas Court of Criminal Appeals ordered the merger of the Civil and Criminal Rules of Evidence. The merger became effective on March 1, 1998 and is now known as the Texas Rules of Evidence. Although the civil and criminal rules often mirror each other, one monumental change is in the new version of Rule 503. This new version significantly alters the analysis used in a corporate context and determines …

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The Constitution And Reconstitution Of The Standing Doctrine Comment., Laveta Casdorph Jan 1999

The Constitution And Reconstitution Of The Standing Doctrine Comment., Laveta Casdorph

St. Mary's Law Journal

The most effective response to the U.S. Supreme Court’s construction of Article III standards will be to revise citizen suit statutes to reaffirm its important role in giving the injured citizen a voice against the administrative state. With the rise of the administrative state in the late 1930s and 40s, the Court developed a conservative doctrine of standing to protect New Deal legislation from court-based attacks. As individual constitutional rights expanded, standing rules were liberalized, allowing litigants to challenge the actions and decisions of administrative agencies more easily. Congress passed numerous environmental statutes containing “citizen suit” provisions in the 1960s …

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Should A Christian Lawyer Sign Up For Simon's Practice Of Justice?, Thomas L. Shaffer Jan 1999

Should A Christian Lawyer Sign Up For Simon's Practice Of Justice?, Thomas L. Shaffer

Journal Articles

In The Practice of Justice, Professor William H. Simon describes justice in a way that differs from the way the Bible describes justice. The big difference is not so much what justice requires (although there is some difference there) as (i) how people decide what justice requires, and (ii) who the "people" are who decide what justice requires. Some of us Christians claim to understand "justice" as the Bible understands it. It may make a difference that, for biblical people, "justice" is righteousness, and righteousness, the Torah teaches, and Rabbi Hillel teaches, and Rabbi Jesus teaches, is practice following upon …

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Dead Man Talking: Competing Narratives And Effective Representation In Capital Cases Essay., Jeffrey J. Pokorak Jan 1999

Dead Man Talking: Competing Narratives And Effective Representation In Capital Cases Essay., Jeffrey J. Pokorak

St. Mary's Law Journal

As Karl Hammond’s case indicates, to serve justice, balance between the Kill Story and Human Story is necessary in a capital trial. This Essay seeks, through deconstruction of Karl Hammond’s case, to identify and illustrate the values of telling these combating stories. Part III describes the Kill Story and the Human Story in Karl’s case from the record of his trial, appeals, and petitions. Part III also demonstrates how the failure to tell one side of the story in either the guilt-innocence phase or the punishment phase can have a prejudicial effect on the jury’s decision. Part IV then discusses …

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The Lautenberg Amendment: Congress Hit The Mark By Banning Firearms From Domestic Violence Offenders Comment., Polly Mccann Pruneda Jan 1999

The Lautenberg Amendment: Congress Hit The Mark By Banning Firearms From Domestic Violence Offenders Comment., Polly Mccann Pruneda

St. Mary's Law Journal

Immediate action is critical to preserve the goals of the Lautenberg Amendment to protect victims of domestic violence from future abuse and their abusers. Incidents of gun-related domestic violence are not uncommon in the United States. Statistics show that domestic violence takes one life every three days and the combination of guns and domestic violence cause more deaths than incidents which are not associated with guns. In 1996, Congress attempted to find a solution to this problem. The Lautenberg Amendment, enacted pursuant to Congress’ Commerce Clause power, seeks to protect individuals from gun related injury or death occurring within domestic …

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Beyond Black And White: Selected Writings By Asian Americans Within The Critical Race Theory Movement Perspective., Harvey Gee Jan 1999

Beyond Black And White: Selected Writings By Asian Americans Within The Critical Race Theory Movement Perspective., Harvey Gee

St. Mary's Law Journal

A new generation of progressive intellectuals has evolved, attempting to transform the manner in which law, race, and racial power are understood and discussed in America. The latter half of the twentieth century proved to be a time of profound demographic changes. Racial and political reform policies of the post-modern Civil Rights Movement failed to fully respond to these dramatic social changes. A theory was created to address social racism because the “color-blind” model posited by the Supreme Court of the United States perpetuated racism by supporting the existing hierarchy. Critical Race Theory attempts to tackle these dramatic social changes …

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Splitting The Atom Or Splitting Hairs - The Hate Crimes Prevention Act Of 1999 Note., Andrew M. Gilbert, Eric D. Marchand Jan 1999

Splitting The Atom Or Splitting Hairs - The Hate Crimes Prevention Act Of 1999 Note., Andrew M. Gilbert, Eric D. Marchand

St. Mary's Law Journal

Problems of bias-motivated violence plague our nation and threaten to erase the progress made during the civil rights era. Recent statistical surveys conducted by the Federal Bureau of Investigation (FBI) indicate the number of hate crimes has generally increased over the past few years. In 1996, over 11,000 individuals were victims of hate crimes—five percent more than reported the previous year. Hate crimes are not only injurious to the individual victim, but also fracture surrounding communities and create disharmony among citizens. As a result, some states implemented legislation in the 1980s to deter hate-motived crimes and a few states have …

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America's Preoccupation With Ethics In Government Essay., Vincent R. Johnson Jan 1999

America's Preoccupation With Ethics In Government Essay., Vincent R. Johnson

St. Mary's Law Journal

Many Americans today expect that the law can, should, and will be used to ensure a level playing field in public life. Americans expect the law to eliminate, insofar as possible, any unfair advantage that might be gained through the use of special connections to those who exercise the power of government. There are numerous rules applicable to judges, lawyers, and public officials that each seek to promote equal treatment for all persons by limiting the ability of persons to use special connections and privileged relationships to gain an advantage in public affairs. There were two threads of development in …

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Resolving The Mult-Fractional Deed Dilemma - Conc.Ord Oil Co. V. Pennzoil Exploration & (And) Production Co. Recent Development, Noelle C. Letteri Jan 1999

Resolving The Mult-Fractional Deed Dilemma - Conc.Ord Oil Co. V. Pennzoil Exploration & (And) Production Co. Recent Development, Noelle C. Letteri

St. Mary's Law Journal

Abstract Forthcoming.

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From Little Acorns Great Oaks Grow: The Constitutionality Of Protecting Minors From Harmful Internet Material In Public Libraries Comment., Kimberly S. Keller Jan 1999

From Little Acorns Great Oaks Grow: The Constitutionality Of Protecting Minors From Harmful Internet Material In Public Libraries Comment., Kimberly S. Keller

St. Mary's Law Journal

Congress should focus on the receiver's end of Internet transmissions to overcome the anonymity and transmogrification elements of the Internet to protect minors from harmful material. Throughout the years, librarians have struggled with monitoring minors’ access to the accumulating number of controversial texts in the library. The Internet’s unique infrastructure affords librarians virtually no opportunity for the pre-shelf review available with books and videos. Congress enacted the Communications Decency Act (CDA) in 1996 in an attempt to protect minors from the underbelly of the internet. The United States Supreme Court, in Reno v. ACLU, struck down the CDA ruling that …

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