Legal Remedies Commons^™

Lawyers As Caregivers, Paula Schaefer

St. Mary's Journal on Legal Malpractice & Ethics

This Article argues that clients—much like patients in a healthcare setting—need their lawyers to be caregivers. The Article opens by developing a definition of caregiving in medicine and law. It then turns to five key components of caregiving in medicine, explaining the substantial research that this care is crucial for patient satisfaction, trust, and healing. Medical educators have drawn on this research to better prepare medical professionals to be excellent caregivers. The Article then explores the evidence that an attorney’s clients have the same needs and suffer similar harm when attorneys fail to meet these needs. Next, the Article turns …

Patients, Corporate Attorneys, And Moral Obligations, Ioan-Radu Motoarcă

St. Mary's Journal on Legal Malpractice & Ethics

There are two main questions that any account of corporate lawyers’ moral obligations needs to answer: (1) Do corporate lawyers have moral obligations to third parties? and (2) In cases of conflict between obligations to the corporation and obligations to third parties, which should prevail? This Article offers answers to these questions in the context of lawyers working in medical corporations. I argue that lawyers do have moral obligations to third parties, and that in cases where patients’ rights are being violated by a medical company, patients’ rights should prevail. Consequently, attorney–client confidentiality rules should be relaxed to allow for …

The Sale Of Law Practice In Texas: The Need For A Rule, Ryan Hagens

St. Mary's Journal on Legal Malpractice & Ethics

Abstract forthcoming.

Disposable Immigrants: The Reality Of Sexual Assault In Immigration Detention Centers, Valerie Gisel Zarate

St. Mary's Law Journal

Abstract forthcoming.

Everything Is Bigger In Texas: Including The Horrendously Inadequate Attempts At Providing Special Education And Related Services To All Children With Disabilities, Alexandria R. Booterbaugh

The Scholar: St. Mary's Law Review on Race and Social Justice

Without immediate action, the “corrections” made by the Texas legislature to meet the appropriateness requirement for special education will result in imminent peril for students with an autism spectrum disorder (ASD) as well as their parents. Tens of thousands of children fall between the cracks as a result of Texas’ illegalities and the lack of responsibility Texas’ lawmakers and Texas Education Agency (TEA) have for special education. If Texas does not fully devote itself to a significant overhaul of its special education practices, students will continue to be left behind.

Congress enacted the Individuals with Disabilities Education Act (IDEA) because …

Small Business Cybersecurity: A Loophole To Consumer Data, Matthew R. Espinosa

The Scholar: St. Mary's Law Review on Race and Social Justice

Small businesses and small minority owned businesses are vital to our nation’s economy; therefore legislation, regulation, and policy has been created in order to assist them in overcoming their economic stability issues and ensure they continue to serve the communities that rely on them. However, there is not a focus on regulating nor assisting small businesses to ensure their cybersecurity standards are up to par despite them increasingly becoming a victim of cyberattacks that yield high consequences. The external oversight and assistance is necessary for small businesses due to their lack of knowledge in implementing effective cybersecurity policies, the fiscal …

America: The World’S Police—How The Defund The Police Movement Frames An Analysis For Defunding The Military, Anya Kreider

The Scholar: St. Mary's Law Review on Race and Social Justice

In this article, the author examines the tenets of the Defund the Police movement and applies them to the American military to make the argument that not only should the police be defunded, but so should the American military. The purpose of this piece is to push the conversation regarding policing beyond American borders to examine American influence internationally. The article incorporates various Critical Race Theories to explore the intersection of policing and the military. The Defund the Police Movement also provides a framework for critiquing the American military because the American police and military are inextricably connected. Part I …

Identity Documents For Transgender Texans: A Proposal For A Uniform System For Correcting Gender Markers In Texas, Lydia R. Harris

The Scholar: St. Mary's Law Review on Race and Social Justice

Texas’s lack of a codified gender correction process is unjust, illegal, and against public policy. This comment highlights the injustice faced by transgender Texans without gender concordant identity documents. These injustices include discrimination based on gender stereotypes, violation of the transgender individual’s right to privacy, and violations of public policy. This comment explores possible solutions to the injustices faced by transgender Texans due to the lack of a codified uniform way to correct gender markers in Texas modeled on other jurisdictions’ approaches to this problem.

First, this comment traces the history of the recognition of transgender people and transgender rights …

The Mother Of Exiles Is Abandoning Her Children: The Systemic Failure To Protect Unaccompanied Minors Arriving At Our Borders, Rosa M. Peterson

The Scholar: St. Mary's Law Review on Race and Social Justice

Unaccompanied minors arrive at the United States border every day. Many brought by the hope of finding a life lived without fear, a luxury many United States citizens take for granted. Their truths become the barriers and shackles which keep them in detention centers and unaccompanied minor facilities throughout the United States; children find their very words wielded as weapons against them in immigration court. Words often spoken to therapists in perceived confidence, during counseling sessions. This practice is a systemic failure to protect unaccompanied minors arriving at our borders who are seeking protection and help. The United States …

Sexual Profiling & Blaqueer Furtivity: Blaqueers On The Run, T. Anansi Wilson

The Scholar: St. Mary's Law Review on Race and Social Justice

This article has taken some time to recollect. I have been struggling to find the grammar to communicate a phenomenon that is both central to BlaQueer life and beyond BlaQueer living. This difficulty, the silences, the gaps, the nonsensical and agrammatical nature of this phenomena—that of BlaQueer furtivity, the strict scrutiny of Black life and sexual profiling—are central features not only of this project but of the legal, extralegal and social logics and powers that mark, make and remake BlaQueer folks as always, already furtive, subject to strict scrutiny and necessarily sexual profiling. I have been struggling with whether to …

Will The Real Mens Rea Please Stand Up: Assessing The Fifth Circuit’S Kickback Jurisprudence After United States V. Nora, John J. Locurto

St. Mary's Law Journal

Many criminal statutes require willful misconduct, yet willfulness remains an elusive concept. Its meaning and application depend as much on the outcome a court desires as the definition or legal standard a court claims to apply. Ambiguity in the required mens rea is an age-old problem with a venerable pedigree in the circuits and Supreme Court. This article considers anew the struggle to define “willfully” as that term is used in the Anti-Kickback Statute (AKS), 42 U.S.C. § 1320a-7b, one of the federal government’s key weapons against health care fraud.

When it decided United States v. Nora and reversed the …

The Aoc In The Age Of Covid—Pandemic Preparedness Planning In The Federal Courts, Zoe Niesel

St. Mary's Law Journal

The 2020 COVID-19 pandemic created a crisis for American society—and the federal courts were not exempt. Court facilities came to a grinding halt, cases were postponed, and judiciary employees adopted work-from-home practices. Having court operations impacted by a pandemic was not a new phenomenon, but the size, scope, and technological lift of the COVID-19 pandemic was certainly unique.

Against this background, this Article examines the history and future of pandemic preparedness planning in the federal court system and seeks to capture some of the lessons learned from initial federal court transitions to pandemic operations in 2020. The Article begins by …

Misreading Menetti: The Case Does Not Help You Avoid Liability For Your Own Fraud, Val D. Ricks

St. Mary's Law Journal

Several decades ago, an incorrect legal idea surfaced in Texas jurisprudence: that business entity actors are immune from liability for fraud that they themselves commit, as if the entity is solely responsible. Though the Supreme Court of Texas has rejected that result several times, it keeps coming back. The most recent manifestation is as a construction of Texas’s unique veil-piercing statute. Many lawyers have suggested that this view of the veil-piercing statute originated in Menetti v. Chavers, a San Antonio Court of Appeals case decided in 1998. Menetti has in fact played a prominent role in the movement to …

Answering The Call: A History Of The Emergency Power Doctrine In Texas And The United States, P. Elise Mclaren

St. Mary's Law Journal

During times of emergency, national and local government may be allowed to take otherwise impermissible action in the interest of health, safety, or national security. The prerequisites and limits to this power, however, are altogether unknown. Like the crises they aim to deflect, courts’ modern emergency power doctrines range from outright denial of any power of constitutional circumvention to their flagrant use. Concededly, courts’ approval of emergency powers has provided national and local government opportunities to quickly respond to emergency without pause for constituency approval, but how can one be sure the availability of autocratic power will not be abused? …

Ethical Limits On Promising To Pay An Adverse Award Of Attorney’S Fees Against One’S Client, Chase C. Parsons

St. Mary's Journal on Legal Malpractice & Ethics

Abstract forthcoming.

Resolving The Anders Dilemmas: How & Why Texas Should Abandon The Anders Procedure, Michael J. Ritter

St. Mary's Journal on Legal Malpractice & Ethics

When an indigent defendant has a right to counsel for an appeal, and counsel believes the appeal is wholly frivolous, Texas has adopted the Anders v. California procedure that permits counsel to withdraw from representation and argue to the appellate court why their client’s appeal is wholly frivolous. This Article argues that, either by a change to the disciplinary rules or by judicial decision, Texas should abandon the Anders procedure as other states have. Doing so will promote the integrity of the right to counsel, avoid numerous conflicts and dilemmas created by the Anders procedure, and advance judicial efficiency and …

The Thirteenth Amendment And One Hundred And Fifty Years Of Struggle To Criminalize Slavery: A First Amendment Challenge To The Forced Labor Act (18 U.S.C. § 1589), Niles Stefan Illich

St. Mary's Law Journal

Abstract forthcoming.

Municipal Optimization Of Short-Term Rental Regulations: The Reality Of Airbnb In South Texas Communities, Kenneth M. Culbreth Iii

St. Mary's Law Journal

Abstract forthcoming.

Bolstering Juliana: Enforceability Of Environmental Claims Through International Treaty Obligations In U.S. Courts, Lindsey Laielli

St. Mary's Law Journal

Abstract forthcoming.

Testing Privilege: Coaching Bar Takers Towards “Minimum Competency” During The 2020 Pandemic, Benjamin Afton Cavanaugh

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Justice For Venezuela: The Human Rights Violations That Are Isolating An Entire Country, Andrea Matos

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Alexa Hears With Her Little Ears—But Does She Have The Privilege?, Lauren Chlouber Howell

St. Mary's Law Journal

Abstract forthcoming.

Judicial Deference Of The Board Of Immigration Appeals’ Regulatory Interpretations In Light Of Kisor V. Wilkie, Melissa Fullmer

St. Mary's Law Journal

Abstract forthcoming.

The Dangers Of Doxing And Swatting: Why Texas Should Criminalize These Malicious Forms Of Cyberharassment, Hannah Mery

St. Mary's Law Journal

Abstract forthcoming.

The Ratio Method: Addressing Complex Tort Liability In The Fourth Industrial Revolution, Harrison C. Margolin, Grant H. Frazier

St. Mary's Law Journal

Emerging technologies of the Fourth Industrial Revolution show fundamental promise for improving productivity and quality of life, though their misuse may also cause significant social disruption. For example, while artificial intelligence will be used to accelerate society’s processes, it may also displace millions of workers and arm cybercriminals with increasingly powerful hacking capabilities. Similarly, human gene editing shows promise for curing numerous diseases, but also raises significant concerns about adverse health consequences related to the corruption of human and pathogenic genomes.

In most instances, only specialists understand the growing intricacies of these novel technologies. As the complexity and speed of …

Ethical Duty To Investigate Your Client?, Peter A. Joy

St. Mary's Journal on Legal Malpractice & Ethics

Lawyers have been implicated in corporate scandals and other client crimes or frauds all too often, and the complicity of some lawyers is troubling both to the public and to members of the legal profession. This is especially true when the crime involved is money laundering. As a response to attorney involvement in crimes or frauds, some legal commentators have called for changes to the ethics rules to require lawyers to investigate their clients and client transactions under some circumstances rather than remaining “consciously” or “willfully” blind to what may be illegal or fraudulent conduct. The commentators argue that such …

Maternity Rights: A Comparative View Of Mexico And The United States, Roberto Rosas

The Scholar: St. Mary's Law Review on Race and Social Justice

Women play a large role in the workplace and require additional protection during pregnancy, childbirth, and while raising children. This article compares how Mexico and the United States have approached the issue of maternity rights and benefits. First, Mexico provides eighty-four days of paid leave to mothers, while the United States provides unpaid leave for up to twelve weeks. Second, Mexico allows two thirty-minute breaks a day for breastfeeding, while the United States allows a reasonable amount of time per day to breastfeed. Third, Mexico provides childcare to most federal employees, while the United States provides daycares to a small …

Model Rule 8.4(G) And The Profession’S Core Values Problem, Michael Ariens

St. Mary's Journal on Legal Malpractice & Ethics

Model Rule 8.4(g) declares it misconduct for a lawyer to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” The American Bar Association (ABA) adopted the rule in 2016 in large part to effectuate the third of its four mission goals: Eliminate Bias and Enhance Diversity. The ABA adopted these goals in 2008, and they continue to serve as ABA’s statement of its mission.

A …

A Human Rights Crisis Under Our Roof, Aglae Eufracio

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Police Use Of Force Laws In Texas, Gerald S. Reamey

St. Mary's Law Journal

Abstract forthcoming.