Legal Ethics and Professional Responsibility Commons^™

Texas Disciplinary Rules Of Professional Conduct: Additional Liability For Texas Lawyers., Xavier G. Medina, Virginia Coyle

St. Mary's Law Journal

As a result of the enactment of the Texas Disciplinary Rules of Professional Conduct (“Rules”), Texas lawyer no longer practice under guidelines which include aspirational goals and discretionary moral choices. The Rules are mandatory in nature and depict a minimum standard of professional conduct which, if violated, could subject the offending lawyer to disciplinary action. Although the Rules provide a disclaimer stating that they “do not undertake to define standards of civil liability of lawyers for professional conduct,” Texas lawyers fear the Rules will be utilized as an independent basis for liability, or a standard of care for malpractice. The …

Dedication., Ernest A. Raba

St. Mary's Law Journal

Abstract Forthcoming.

Dedication., Orville C. Walker

St. Mary's Law Journal

Abstract Forthcoming.

Dedication., Jack Pope

St. Mary's Law Journal

Abstract Forthcoming.

Dedication., Editorial Board St. Mary's School Of Law

St. Mary's Law Journal

Abstract Forthcoming.

Raborn V. Davis - Paycheck In Employee's Possession: A Limitation Of The Current Wage Exemption In Texas., Richard E. Flint

St. Mary's Law Journal

Extensions of credit generally help both the debtor and creditor. However, a result of our credit-based economy is that individuals are free to make poor economic decisions, and that they should suffer the consequences of these poor decisions. Although legal rules have had a role in ensuring that debtors are protected from overzealous creditors, commercial transactions can only exist if obligations of debtors are legally enforceable. The role of government, therefore, is to set parameters for procedures to enforce these obligations, while also setting a floor of protected or exempt assets so that debtors will not become wards of the …

The Whole Truth Or Nothing But The Truth - Should Attorneys Who Advertise Be Required To Disclose Prior Disciplinary Actions Taken Against Them., Sara Murray

St. Mary's Law Journal

A state should not require attorneys who advertise to disclose all prior disciplinary actions in their advertisements. Attorney advertising, like other forms of commercial speech, is not immune to state regulation. The American public deserves access to accurate information about legal services, and lawyers have a duty to provide such information. However, attorneys and all other citizens have a constitutional right not to speak. A state must balance the competing interests carefully when the public’s right to know clashes with an individual’s right not to speak. There are several arguments against requiring attorneys to disclose all prior disciplinary actions in …

Texas' New Trademark Antidilution Statute - Useful Or Useless New Protection For Texas Trademarks., Richard Taylor

St. Mary's Law Journal

Texas courts must set forth clear and concise guidelines for trademark antidilution enforcement. The adoption of a trademark antidilution statute substantially alters Texas trademark law. The statute allows a trademark owner to enjoin acts which dilute a registered or common law trademark’s distinctive quality. It applies whether competition exists between the parties or a likelihood of confusion exists as to the owner of the mark. The statute adds a new dimension to trademark protection in Texas because it creates a property interest in the trademark. As promising as these protections sound, the new antidilution statute may prove ineffective due to …

Texas Adopts The Outstanding Balance Method Of Determining Whether Monies Bid At A Foreclosure Sale Involving Wraparound Mortgages Generate Excess Proceeds Or Constitute A Deficiency., Cynthia K. Brotman

St. Mary's Law Journal

Abstract Forthcoming.

Employer's Burden Of Rebutting Prima Facie Case Under Disparate Impact Theory Is One Of Production While Ultimate Burden Of Persuasion Remains With Complainant., Erik R. Sunde

St. Mary's Law Journal

Abstract Forthcoming.

Justice Franklin Spears Dedication., Thomas R. Phillips

St. Mary's Law Journal

No abstract provided.

Applying Edgewood V. Kirby To Analysis Of Fundamental Rights Under The Texas Constitution., Albert H. Kauffman, Carmen Maria Rumbaut

St. Mary's Law Journal

State constitutions are affirmative grants of power under which both stated and implied fundamental rights can be sought. A proposed test for fundamental rights under the Texas Constitution looks at three factors: the history of the topic within the Texas Constitution and case law; the actual language used in the controlling provision; and the importance of that value to the people of Texas. The declaration of a constitutional right as fundamental certainly has implications for future relationships between the people and the government.

The Edgewood v. Kirby case has the potential to change much in Texas. The case stands for …

What Price Innocence - A Realistic View Of The Innocent Landowner Defense Under Cercla., Debra L. Baker, Theodore G. Baroody

St. Mary's Law Journal

Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) to provide the federal government and the states with authority to clean up hazardous waste sites. This article discusses the significance of the so-called “innocent landowner defense” under CERCLA. This Act imposed liability on landowners regardless of the landowner’s contribution to, or awareness of, the presence of hazardous substances on their acquired property. The exceedingly, and apparently unintentionally, harsh impact of CERCLA liability soon became apparent. This article addresses a brief summary of the statute and the manner in which the innocent landowner defense came into existence. …

Is Lemon A Lemon - Crosscurrents In Contemporary Establishment Clause Jurisprudence., Stuart W. Bowen Jr.

St. Mary's Law Journal

No abstract provided.

An Employer Cannot Avoid Its Obligation To Contribute To An Employee-At-Will's Pension Plan By Terminating The Employee., Carol Jendrzey

St. Mary's Law Journal

In McClendon v. Ingersoll-Rand Co., the Texas Supreme Court held an employer cannot avoid its obligation to contribute to an employee-at-will’s pension plan by terminating the employee. A minority of jurisdictions recognize an implied contract exception to the employment-at-will doctrine allowing termination only with cause. In these jurisdictions, employers who raise the defense of statute of frauds because there is no written employment contract may be defeated by the terms of employment articulated in employee handbooks and manuals. Though both the legislatures and the courts recognize a public policy interest in protecting employee pension plans, the United States Supreme Court …

A Practical Guide To The Admissibility Of Novel Expert Evidence In Criminal Trials Under Federal Rule 702., Cathleen C. Herasimchuk

St. Mary's Law Journal

No abstract provided.

Digital Audio Recording Technology: Challenges To American Copyright Law., Douglas Reid Weimer

St. Mary's Law Journal

This Article discusses the objectives of American copyright law, its development and its current day codification. The inception of digital audio recording technology (“DAT”) raises new challenges for American copyright law. American copyright is a constitutionally sanctioned and legislatively accorded form of protection for authors against the unauthorized copyright of their “original works of authorship.” A significant copyright issue is the ability of DAT to reproduce nearly perfect copies of copyrighted musical works. This Article further discusses certain aspects of copyright law, such as the fair use defense and the concept of “home” for the purposes of copyright protection. The …

The Stagnation Of Texas Ground Water Law: A Political V. Environmental Stalemate., Karen H. Norris

St. Mary's Law Journal

The rapidly increasing Texas population coupled with the scarcity of water resources has created an urgent need for regulation of ground water pumpage. The extraction of ground water in Texas remains largely unregulated. Texas landowners, by virtue of their surface ownership, have property rights in all underlying ground water. As such, Texas landowners have the right to unlimited pumpage of the ground water beneath their land. Texas landowners have jealously guarded this right at the expense of our environment and future water resources. The Texas legislature created conservative underground water districts to help preserve water resources. However, the limited scope …

A Comment On "Hegel's Legal Plenum", Agnes Heller

Cardozo Law Review

No abstract provided.

How An Errorless Judgment Can Become Erroneous., Robert W. Calvert

St. Mary's Law Journal

Abstract Forthcoming.

Hazardous Chemicals In The Workplace: The Employer's Obligation To Inform Employees And The Community., Nelson A. Clare

St. Mary's Law Journal

Significant changes have recently occurred in reporting requirements for employers who have hazardous chemicals in their workplaces. The amended Federal Hazard Communication Standard requires private employers, engaged in a business using hazardous chemicals, to communicate to employees the potential hazards. The Standard requires employers to use: 1) a Hazard Communication Program, 2) labels and other forms of warning, 3) material safety data sheets, and 4) information and training about hazardous chemicals. Local and state governments must compare and reconcile the various and complex provisions relating to the Standard to ensure compliance with all requirements of the respective laws. The Texas …

Private Retirement Benefits Earned During Marriage Characterized As Community Property And Do Not Automatically Remain Property Of Surviving Spouse., Darryl J. Silvera

St. Mary's Law Journal

Abstract Forthcoming.

Should Your Spouse Be Compensated For Putting You Through School - Texas Says No; Is That Just And Right., Darryl J. Silvera

St. Mary's Law Journal

No abstract provided.

A Proposal To Protect Injured Workers From Employers' Shield Of Immunity., Catherine A. Hale

St. Mary's Law Journal

The current workers’ compensation system shields negligent employers from liability and fails to encourage compliance with safety standards. A practical solution is to broaden the judicial definition of intentional conduct and reinstate a common-law negligence action in workers’ compensation statutes. The Texas Workers’ Compensation Act awards compensation to employees for accidental injuries sustained in the course of employment. The Act bars an employee who accepts these benefits from bringing a common-law suit for damages against the employer. The exclusive nature of the workers’ compensation remedy thus leaves employers immune from common-law negligence actions by employees who accept the plan. An …

Judicial Rulemakers Held To Have Produced Federal Sentencing Guidelines Within Permissible Twilight Area In Which Branches Of Government Merge., Janis Hillman

St. Mary's Law Journal

No abstract provided.

Asserting And Defending Claims Involving An Fslic Relationship., Joe Phillips

St. Mary's Law Journal

No abstract provided.

Fundamental Error When Rule Against Misjoinder Violated By Charging More Than One Non-Property Offense In Same Indictment Resulting In Multiple Convictions., Virginia Coyle

St. Mary's Law Journal

Abstract Forthcoming.

Statutory Claims For Unfair Insurance Settlement Practices - Vail V. Texas Farm Bureau Mutual Insurance Company., Joseph G. Chumlea

St. Mary's Law Journal

No abstract provided.

Warranties, Disclaimers, Limitation Of Remedies, And The Texas Deceptive Trade Practices Act., Thomas Black

St. Mary's Law Journal

No abstract provided.

Private Cause Of Action For Unfair Insurance Claim Settlement Practices Exists Under Texas Deceptive Trade Practices Act And Insurance Code., Gloria F. Christmas

St. Mary's Law Journal

In Vail v. Texas Farm Bureau Mutual Insurance Company, the Texas Supreme Court held a private cause of action for unfair insurance claim settlement practices exists under the Texas Deceptive Trade Practices Act and Insurance Code (DTPA). The DTPA and Insurance Code have repeatedly been used against the insurance industry in the areas of first and third-party claims, particularly in cases involving sales misrepresentations and post-loss claims misconduct. The goal of DTPA is to provide adequate safeguards to aggrieved consumers and, therefore, a broad interpretation of the act allows the courts to provide consumers a remedy and deter the continuance …