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Legal Ethics and Professional Responsibility Commons™
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Articles 271 - 300 of 402
Full-Text Articles in Legal Ethics and Professional Responsibility
Appellate Review Of Criminal Cases In Texas., Ellen Bloomer Mitchell
Appellate Review Of Criminal Cases In Texas., Ellen Bloomer Mitchell
St. Mary's Law Journal
This Article guides Texas practitioners in effectively preparing and presenting criminal cases on appeal. Its primary focus concerns the standards of review appellate courts use in determining the merits of the issues raised before them and, equally important, proper preservation and presentation of those issues. This Article does not exhaust the matters which may be raised on appeal in a criminal case. Rather, it covers a variety of issues and errors commonly raised in the “ordinary” criminal appeal. Understanding and utilizing this information in the presentation of issues on appeal will help the practitioner direct the appellate court to find …
Cutting Costs - Cutting Care: Can Texas Managed Health Care Systems And Hmos Be Liable For The Medical Malpractice Of Physicians., Jim M. Perdue, Stephen R. Baxley
Cutting Costs - Cutting Care: Can Texas Managed Health Care Systems And Hmos Be Liable For The Medical Malpractice Of Physicians., Jim M. Perdue, Stephen R. Baxley
St. Mary's Law Journal
One of the most common forms of managed health care is the health maintenance organization (HMO). An HMO is a quasi-insurance arrangement which provides health care to subscribers for a prepaid monthly fee. These have been attractive as they offer health care at lower cost to consumers. Health care brokers have developed four standard models of HMOs— “staff model,” “group model,” “network model,” and “independent practice association” (IPA) model. Given the degree of control HMOs exercise over member-physicians under any of the above models, Texas courts should hold HMOs liable for their member-physicians’ malpractice under the doctrine of vicarious liability, …
Beauty And The Beast: Physical Appearance Discrimination In American Criminal Trials Comment., David L. Wiley
Beauty And The Beast: Physical Appearance Discrimination In American Criminal Trials Comment., David L. Wiley
St. Mary's Law Journal
This Comment considers physical appearance discrimination by jurors in criminal trials. It proposes remedial measures to eliminate discrimination and effectuate the underlying purposes of jury trials. Part II of this Comment examines the psychological process of corporeal attribution and discusses the underlying philosophic dichotomy of image and substance. It surveys the role modern American culture plays in discrimination in the American criminal law system and discusses parallel relationships between race, sex, and physical appearance discrimination. Part IV explores constitutional ramifications of fostering and promoting physical appearance discrimination in criminal trials. Finally, Part V presents remedies designed to ensure criminal defendants …
Can A Twenty-First Century Texas Tolerate Its Nineteenth Century Judicial Selection Process Commentary., Charles Bleil
Can A Twenty-First Century Texas Tolerate Its Nineteenth Century Judicial Selection Process Commentary., Charles Bleil
St. Mary's Law Journal
Judicial selection by popular election is no longer practical in Texas. Texans must question the adequacy of the Texas judicial selection process for the next century. The history of Texas has seen the implementation of various methods for selecting the judiciary. Initially, the creation of courts by the Republic of Texas’s Constitution required joint ballot of both houses of the Texas Congress to select judges. However, in 1876, Texas began holding elections for jurists by popular vote. This enactment was in response to the drafters’ desire to limit government intervention during the Reconstruction era. Although the suitability of popular election …
Would You Like More Salt With That Wound - Post-Sentence Victim Allocution In Texas Comment., Keith D. Nicholson
Would You Like More Salt With That Wound - Post-Sentence Victim Allocution In Texas Comment., Keith D. Nicholson
St. Mary's Law Journal
A majority of states permit victim allocution of some sort, with victim impact statements made during the pre-sentencing stage, but Texas is currently the only state which permits victim allocution after sentencing. Since 1991, no one has seriously challenged the Texas practice of allowing such victim statements. Yet, scenes of violence between families of the defendants and the victims following such statements has ignited a movement to reassess the utility of allowing victims to address defendants who have already received their sentences. Originally, Texas Code of Criminal Procedure Article 42.03 provided victims the chance to present a statement after the …
Federalism Revisited: The Supreme Court Resurrects The Notion Of Enumerated Powers By Limiting Congress's Attempt To Federalize Crime Comment., Larry E. Gee
St. Mary's Law Journal
This Comment argues the federal system must be preserved and the Supreme Court should build upon the interpretation of the Commerce Clause in United States v. Lopez to reinstate the Framers’ vision of federalism. The social justifications for the Court’s expansive construction of the Commerce Clause during the past sixty years no longer existed to justify the Gun-Free School Zones Act of 1990. Part II of this Comment traces the background of Commerce Clause jurisprudence, focusing on social justifications for traditional rubber stamping of Congress’s broad exercises of power. Part III reviews the Fifth Circuit’s reasoning in deeming the Gun-Free …
The Texas Homestead: The Last Bulwark Of Liberty Forum., Henry B. Gonzalez
The Texas Homestead: The Last Bulwark Of Liberty Forum., Henry B. Gonzalez
St. Mary's Law Journal
For more than 155 years Texans have adamantly supported the principle that the fundamental need for shelter justifies strict constitutional protection of homes from creditors in all but a few situations. This Article discusses where homestead protection came from and why it should not be lightly discarded. The Texas Constitution contains many rights and liberties for the protection and benefit of the state’s citizens. Unique among these treasured liberties is the protection of a person’s homestead from forced sale or foreclosure by creditors. A group of bankers and other financiers—for whom a homestead is nothing more than collateral and a …
Trying To Make Ends Meet: Reconciling The Law And Practice Of Human Rights Amnesties Symposium - Human Rights In The Americas - Commentary., Robert O. Weiner
Trying To Make Ends Meet: Reconciling The Law And Practice Of Human Rights Amnesties Symposium - Human Rights In The Americas - Commentary., Robert O. Weiner
St. Mary's Law Journal
The problem of amnesty for widespread human rights violations in the Americas illustrates the credibility gap in public international law. This Commentary reviews applicable standards and attempts to identify a minimum state response to past human rights violations. It also examines the question of amnesties, offers certain legal interpretations, and presents some criteria for an amnesty framework which might be reconcilable with the state’s international obligations. This Commentary’s aim is not to suggest amnesties are a proper response to the problem of past human rights abuses, however, it does acknowledge amnesties have so far been the most common response. It …
The Size Of A Government Body Is Not Subject To A Vote Dilution Challenge Under Section 2 Of The Voting Rights Act Of 1965., Peter J. Beverage
The Size Of A Government Body Is Not Subject To A Vote Dilution Challenge Under Section 2 Of The Voting Rights Act Of 1965., Peter J. Beverage
St. Mary's Law Journal
In Holder v. Hall, the Court held the size of a government body is not subject to a vote dilution challenge under Section 2 of the Voting Rights Act of 1965. The Act consists of two primary components, Sections 2 and 5, designed to eliminate and prevent subtle voting practices and procedures utilized to obstruct minority voter participation. Section 5 requires states with a history of discriminatory voting practices to obtain federal preclearance before changing a voting standard, practice, or procedure. Section 2 addresses the existing methods utilized to deny or abridge a citizen’s right to vote. In Holder, the …
Flow Control Ordinances That Require Disposal Of Trash At A Designated Facility Violate The Dormant Commerce Clause., Laura Gabrysch
Flow Control Ordinances That Require Disposal Of Trash At A Designated Facility Violate The Dormant Commerce Clause., Laura Gabrysch
St. Mary's Law Journal
In C & A Carbone, Inc. v. Town of Clarkstown, the Court held flow control ordinances that require disposal of trash at a designated facility violate the Dormant Commerce Clause. In the absence of congressional action, the Court has recognized—the Dormant Commerce Clause—restrictions on states’ ability to regulate interstate commerce. The Dormant Commerce Clause doctrine does not emanate directly from the Constitution, but instead flows from the body of Commerce Clause jurisprudence that has gained legitimacy throughout the years. In Carbone, the Court elevated the economic interests of one local waste processor over Clarkstown’s environmental and public protection. This type …
In Re Oluloro: Risk Of Female Genital Mutilation As Extreme Hardship In Immigration Proceedings Symposium - Human Rights In The Americas - Recent Development., Patricia Dysart Rudloff
In Re Oluloro: Risk Of Female Genital Mutilation As Extreme Hardship In Immigration Proceedings Symposium - Human Rights In The Americas - Recent Development., Patricia Dysart Rudloff
St. Mary's Law Journal
On March 23, 1994, in In re Oluloro, Immigration Judge Kendall Warren’s decision indicated the United States Immigration and Naturalization Service (INS) should consider human rights abuses directed at women. The overriding concern was the possibility that two young U.S. girls would suffer female genital mutilation (FGM) if the INS deported their mother to Nigeria. In reaching the decision to suspend the mother’s deportation, Judge Warren condemned FGM as “cruel and serv[ing] no known medical purpose.” Judge Warren ruled the practice presented an extreme hardship for the girls. Unfortunately, the court’s ruling has no precedential value because the INS did …
Oil And Gas Issues Involved In Cercla Reauthorization., Joseph R. Dancy, Victoria A. Dancy
Oil And Gas Issues Involved In Cercla Reauthorization., Joseph R. Dancy, Victoria A. Dancy
St. Mary's Law Journal
After several decades of environmental legislation, the regulated community faces an extremely complex and costly matrix of obligations and responsibilities. For industry in general, the most expensive environmental statute enacted has been the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). CERCLA created the Hazardous Substances Superfund (Superfund) and established retroactive liability for remediation of hazardous substance contamination. President Clinton admitted CERCLA does not work and even labelled the Superfund a “disaster.” Even though public and private entities have already spent twenty billion dollars on the CERCLA program since its inception, only around ten or twenty percent of …
Capital Punishment: The Humanistic And Moral Issues Address., Helen Prejean
Capital Punishment: The Humanistic And Moral Issues Address., Helen Prejean
St. Mary's Law Journal
Death row reminds us that justice is not equal. Death sentences, opposed to being reserved for only the most heinous crimes, are generally related to the profile of the victim and identity of those most outraged by the crime. The majority of people on death row killed a white person, even though one-half of homicide victims in the United States are people of color. Because of this, and the fact that the law almost always sides with people of wealth and power, the death penalty works to compound societal trauma instead of healing or solving anything. The skewed and harmful …
Use Of A Pen Register May Be A Search Within The Purview Of Article I, Section 9 Of The Texas Constitution., Angie Patrick
Use Of A Pen Register May Be A Search Within The Purview Of Article I, Section 9 Of The Texas Constitution., Angie Patrick
St. Mary's Law Journal
In Richardson v. State, the Texas Court of Criminal Appeals granted Richardson’s second petition for discretionary review to determine whether law enforcement’s use of a pen register constitutes a search. The use of a pen register may be a search within the purview of Article I, Section 9 of the Texas Constitution. Courts use the reasonable-expectation-of-privacy test, from Katz v. United States, to determine whether a search has occurred under the Fourth Amendment. In Richardson, the Texas Court of Criminal Appeals reviewed whether the use of a pen register equates to a search despite the U.S. Supreme Court’s determination in …
Foreigners On Texas's Death Row And The Right Of Access To A Consul Symposium - Human Rights In The Americas., S. Adele Shank, John Quigley
Foreigners On Texas's Death Row And The Right Of Access To A Consul Symposium - Human Rights In The Americas., S. Adele Shank, John Quigley
St. Mary's Law Journal
Foreign nationals arrested in the United States confront the disadvantage of mounting a criminal defense in several ways. In most cases, they are unfamiliar with U.S. customs, police policies, and criminal proceedings. Although U.S. courts strive to prevent bias against accused based on alienage, discrimination does occur. To minimize the disadvantages experienced by accused foreigners, international law guarantees the right of consular access. Under internationally accepted norms applicable in the United States, an accused foreigner is entitled to contact his home-state consult office for assistance. Furthermore, mere involvement of a consul may encourage local government to follow procedural norms and …
The Subjection Of Women . . . Still: Unfulfilled Promises Of Protection For Women Victims Of Domestic Violence Comment., James Martin Truss
The Subjection Of Women . . . Still: Unfulfilled Promises Of Protection For Women Victims Of Domestic Violence Comment., James Martin Truss
St. Mary's Law Journal
Throughout American history, women have fought to realize a full and independent legal identity, equal to men. Nonetheless, issues such as domestic violence have often remained obscured due partly to the judicial system’s reluctance to intrude into “family matters.” Although courts have long-since renounced the common-law rule which allowed a husband to discipline his wife, the plight of the battered woman remained largely ignored by courts and legislatures. The pervasiveness and severity of domestic violence are widely documented. On June 1, 1991, the Texas Supreme Court created the Gender Bias Task Force of Texas (Task Force) to consider whether gender …
International Law Of Trade Preferences: Emanations From The European Union And The United States., Kele Onyejekwe
International Law Of Trade Preferences: Emanations From The European Union And The United States., Kele Onyejekwe
St. Mary's Law Journal
This Article posits that the increase of tariff arrangements, like the Generalized System of Preferences (GSP), is evidence of the “hardening” of a body of international trade-preference law. It contends that the law of trade preferences is widely practiced in international affairs and the developed nations which terminate all trade preferences for developing countries most likely engage in illegal conduct under international law. Classical international law principally consisted of the law between nations and an international law of trade preferences in any form was unthinkable. Thus, neither international cooperation nor a duty for developed countries to assist developing countries is …
Self-Publication: Defamation Within The Employment Context., Howard J. Siegel
Self-Publication: Defamation Within The Employment Context., Howard J. Siegel
St. Mary's Law Journal
This Article reviews the rules and reasoning various jurisdictions have maintained in defamation actions supported by self-publication. This type of defamation action is commonly known as self-defamation. Before the law will hold the originator of a defamatory statement liable for defamation, publication of the defamatory comments must occur. Generally, defamatory communications are those communications which tend to injure one’s reputation. Publication normally occurs when one communicates the defamatory matter to “one other than the person defamed.” Originally, courts considered defamation actions valid only when the defamed person alleged that the originator directly published the statement to a third person. Under …
Time Limitations For Objecting To Claims: The Interplay Between Sections 502(D) And 546(A) Of The Bankruptcy Code., Gregory G. Hesse
Time Limitations For Objecting To Claims: The Interplay Between Sections 502(D) And 546(A) Of The Bankruptcy Code., Gregory G. Hesse
St. Mary's Law Journal
It is common lore among bankruptcy trustees and lawyers that a bankruptcy trustee has an unlimited time period under the Bankruptcy Code (the Code) to file objections to claims. Neither Section 502(a) of the Code nor Federal Rule of Bankruptcy Procedure 3007 contains time limitations within which an objection to a claim must be filed. Yet, creative creditor attorneys have fashioned arguments that the two-year limitations period placed on avoidance actions by Section 546(a) of the Code applies to claim objection proceedings brought under Section 502(d). Because courts have held the limitations period of Section 546(a) applies to claim objection …
U.S. Taxation Of U.S. Persons Doing Business Or Investing In Mexico: An Overview., William H. Hornberger
U.S. Taxation Of U.S. Persons Doing Business Or Investing In Mexico: An Overview., William H. Hornberger
St. Mary's Law Journal
U.S. persons who plan to do business in Mexico or invest in new or existing Mexican business ventures are faced with a myriad of U.S. federal income tax issues. U.S. counsel advising U.S. persons regarding the ownership structure for a contemplated business or investment in Mexico should have a basic understanding of the U.S. system of international taxation. While a working knowledge of Mexico’s tax system is also helpful, Mexican counsel can provide information regarding the Mexican tax implications of doing business or investing in Mexico. A review of the U.S. system of international taxation should begin with a consideration …
Enhanced Punishment Under The Texas Hate Crimes Act: Politics, Panacea, Or Pathway To Hell., David Todd Smith
Enhanced Punishment Under The Texas Hate Crimes Act: Politics, Panacea, Or Pathway To Hell., David Todd Smith
St. Mary's Law Journal
Nearly without exception, modern legislatures have responded to the reprehensible nature and detrimental social effects of hate crime by enacting laws specifically designed to punish the offender’s discriminatory animus. The term “hate crime” describes criminal conduct which is motivated by the offender’s bias or prejudice against another cognizable group. Although the reprehensible nature of a hate crime is often apparent from the facts of any given case, the repercussions of these offenses exceed the ignoble character of any one specific act. Texas has now joined the ranks of these jurisdictions by adopting legal provisions which authorize heightened penalties upon a …
Legislative Redistricting In 1991-1992: The Texas Bill Of Rights V. The Voting Rights Act., James C. Harrington, Judith Sanders-Castro
Legislative Redistricting In 1991-1992: The Texas Bill Of Rights V. The Voting Rights Act., James C. Harrington, Judith Sanders-Castro
St. Mary's Law Journal
Every decade, after the federal government has taken the census, Americans endure the process of redistricting Congress, state legislatures, county commissioner precincts, school boards, city councils, and a host of other elected bodies. Governed by the interplay of federal, state, and local law, the reapportionment process would seem to be a relatively easy task in theory. Yet, overriding forces unique to the political arena and the judiciary’s voice in redistricting questions undermine the implementation of such a simple system. Narrow interpretation of the Voting Rights Act of 1965 by the United State Supreme Court and lower federal courts further intensify …
The Supreme Court Takes A Weapon From The Drug War Arsenal: New Defenses To Civil Drug Forfeiture., Scott Alexander Nelson
The Supreme Court Takes A Weapon From The Drug War Arsenal: New Defenses To Civil Drug Forfeiture., Scott Alexander Nelson
St. Mary's Law Journal
This Comment discusses the history and development of forfeiture law—emphasizing the misnomer of “guilty property”—and addresses the lack of constitutional safeguards in the civil forfeiture statutes. It outlines prospective constitutional defenses announced by the United States Supreme Court, emphasizing the Fifth Amendment guarantee of due process, the Eighth Amendment’s Excessive Fines Clause, and the “innocent owner” defense. The federal statute authorizing civil forfeiture, 21 U.S.C. § 881 (Forfeiture Statute), was initially enacted as part of the Comprehensive Drug Abuse Prevention and Control Act of 1970. The Comprehensive Forfeiture Act of 1984 amended the statute to impose forfeiture on real property …
Consent Decrees Resulting From Institutional-Reform Litigation May Be Modified Upon Showing A Significant Change In Law Or Fact And A Modification Appropriately Tailored To That Change., Christy J. Lindsay
St. Mary's Law Journal
In Rufo v. Inmates of Suffolk County Jail, the Court held that courts may modify consent decrees resulting from institutional reform litigation upon showing a significant change in law or fact and a modification appropriately tailored to that change. The case of Swift v. United States set a strict standard for modification of consent decrees, requiring movants to demonstrate extreme, unexpected hardship and oppression. However, there is a modem trend toward adopting a more flexible standard. The Court deems the “flexible test” as particularly appropriate in the case of the institutional reform consent decree because of its speculative, long-term nature. …
The New Agrarian Law - Mexico's Way Out., Adrianna De Aguinaga
The New Agrarian Law - Mexico's Way Out., Adrianna De Aguinaga
St. Mary's Law Journal
The New Agrarian Law was passed based on a Mexican consensus demanding a better way of life for millions of farmers. Because of low agricultural productivity by the ejido—land common to all the neighbors—and the difficulties for the ejidatarios—members of the ejido—to obtain credit, an armed insurrection resulted. Mexico was forced to find a solution by trying to redistribute the agrarian lands equitably through agrarian reform. Unlike prior amendments which proved inefficient, the New Agrarian Law is applicable to companies and to ejidos. The New Agrarian Law will permit higher productivity in the Mexican agricultural sector and will increase the …
Agricultural Trade Wars: A Threat To The Gatt And Global Free Trade., Thomas J. Schoenbaum
Agricultural Trade Wars: A Threat To The Gatt And Global Free Trade., Thomas J. Schoenbaum
St. Mary's Law Journal
Agriculture, today, is the center of a set of multi-dimensional international controversies and crises. International agricultural strife threatens the future of the global free-trade system. This strife soured relations between the United States and its principal allies and trading partners: Canada, the European Community (EC), and Japan. The agricultural trade controversy is at the heart of the bitter stalemate of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) negotiations. The deadlock over farm trade called into question the very future of the GATT as an international organization. Controversies over agriculture also endanger approval of the recently …
The Texas Employer's Liability In Tort For Injuries To An Employee Occurring In The Course Of The Employment., David W. Robertson
The Texas Employer's Liability In Tort For Injuries To An Employee Occurring In The Course Of The Employment., David W. Robertson
St. Mary's Law Journal
The focus of this Article is tort suits by employees, or their families, based on personal injury or death occurring in the course and scope of the worker’s employment. If an injury does not occur in the course and scope of employment, the defendant’s status as employer becomes irrelevant; the lawsuit is a common-law tort action, and the defendant has all of the common-law defenses. In 1989 the Texas Legislature repealed the former workers’ compensation law and replaced it with the new Texas Workers’ Compensation Act. The new Act took effect on January 1, 1991. The essentially voluntary nature of …
Criminal Trespass And The Exclusionary Rule In Texas., Paul R. Stone, Henry De La Garza
Criminal Trespass And The Exclusionary Rule In Texas., Paul R. Stone, Henry De La Garza
St. Mary's Law Journal
In State v. Hobbs, the Texas Fourth Court of Appeals held a warrantless intrusion by police onto private property to obtain evidence constitutes criminal trespass under Section 30.05 of the Texas Penal Code. The resulting evidence falls within the exclusionary rule and this article considers whether this protection, which goes beyond constitutional guarantees, is necessary or desirable. The first part of this paper reviews existing federal and state constitutional protections against unreasonable searches. Next, the paper analyzes the history and purpose of criminal trespass and the exclusionary rule in Texas. Finally, the paper considers a question the court of appeals …
Expert Witness Fees In Federal Diversity Cases., Wade P. Webster
Expert Witness Fees In Federal Diversity Cases., Wade P. Webster
St. Mary's Law Journal
Even with the increasing complexity of litigation and the increased utilization of expert witnesses to provide expensive evidence on narrow scientific and technical issues, Congress still limits compensation of expert witnesses to only forty dollars per day, the same rate as ordinary fact witnesses. The justification for the low rate is that the witness fee statute was not intended by Congress to compensate witnesses fully for their lost time and income. Presumably this same reasoning also applies to expert witnesses. The problem with this reasoning, unlike law witnesses who may be compelled by subpoena, individual litigants must pay the fees …
Private Property And Russia's Leap Of Faith., Douglas R. Haddock
Private Property And Russia's Leap Of Faith., Douglas R. Haddock
St. Mary's Law Journal
Popular notions of property are enshrined in constitutional protections which seem to make quite clear society’s emphasis on the individual’s preeminence in matters of property. Americans have never been able to accept the “socialist ownership” notions of the Soviet Union and other socialist countries as a viable scheme of property. It is probably irrefutable that the application of socialist ownership principles in the Soviet Union has been less efficient than the American model of private ownership. Yet, it is reactionary to entirely condemn the idea of socialist ownership and conclude the downfall of the Soviet Union proved the “rightness” of …