Legal Remedies Commons^™

Victim V. Victim Restitution: The Commingling Fictions, Andrew Kull

St. Mary's Law Journal

Abstract forthcoming.

Strict Liability Upon Gunowners (Slug): A Proposed Balanced Approach, David Louis

St. Mary's Law Journal

Careless or apathetic gunowners, whose lost or stolen firearms are used in the commission of a violent crime, should be held strictly liable. Current tort law leaves victims of gun violence and their families without a mode of redress against an irresponsible gun owner whose actions played a pivotal role in the victim’s ultimate injury. Without effective liability principles to regulate gun ownership, gunowners are provided de facto immunity regardless of whether the harm suffered by the victim is intertwined with the gunowners careless behavior. This comment examines the efficacy of existing tort liability principles as provided in the Restatement …

Borrowing American Ideas To Improve Chinese Tort Law, Yongxia Wang

St. Mary's Law Journal

As China develops its modern jurisprudence it faces a choice between emulating the legal frameworks of civil law countries or common law countries. Thus far, the civil law path has allowed for a rapid expansion of Chinese tort law, but jurists have found difficulty in applying such generalized statutory schemes with the absence of supporting judicial interpretation. Cognizant of the differences between the public policy of common law countries and China, Vincent Johnson’s Mastering Torts (Měiguó Qīnquán Fǎ) provides this guidance through the lens of American tort law. The hornbook takes care to simplify the role of judicial …

Back To The Future: Marriage And Divorce Under The 2017 Tax Act, Mark Cochran

St. Mary's Law Journal

Abstract forthcoming

Superseding Money Judgments In Texas: Four Proposed Reforms To Help The Business Litigant And To Further Improve The Texas Civil Justice System, James Holmes

St. Mary's Law Journal

Abstract forthcoming.

Saving America’S Privacy Rights: Why Carpenter V. United States Was Wrongly Decided And Why Courts Should Be Promoting Legislative Reform Rather Than Extending Existing Privacy Jurisprudence, David Stone

St. Mary's Law Journal

Privacy rights are under assault, but the Supreme Court’s judicial intervention into the issue, starting with Katz v. United States and leading to the Carpenter v. United States decision has created an inconsistent, piecemeal common law of privacy that forestalls a systematic public policy resolution by Congress and the states. In order to reach a satisfactory and longlasting resolution of the problem consistent with separation of powers principles, the states should consider a constitutional amendment that reduces the danger of pervasive technologyaided surveillance and monitoring, together with a series of statutes addressing each new issue posed by technological change as …

The Importance Of Doctor Liability In Medical Malpractice Law: China Versus The United States, Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

Medical malpractice law in China does not work. Disappointed patients and their families, or the gangs they hire, frequently resort to physical violence, beating up doctors and disrupting hospital activities in order to extort settlements. This happens because Chinese law has failed to provide viable remedies to many victims of medical malpractice.

This dysfunctional situation (medical chaos or yinao) has persisted for more than two decades. Today, parents in China discourage their children from attending medical school because practicing medicine is too dangerous.

Reforming Chinese medical malpractice law will be difficult. Many factors contribute to the public’s lack of confidence …

Texas Landfills: The Need For Administrative Reform Of The Texas Commission On Environmental Quality’S Permitting Process, William Todd Keller Jr.

St. Mary's Law Journal

Abstract forthcoming

Ethical Considerations For Prosecutors: How Recent Advancements Have Changed The Face Of Prosecution, Joshua L. Sandoval

St. Mary's Journal on Legal Malpractice & Ethics

The prosecutor acts as a minister of justice with sweeping discretion to charge an individual with a crime, plea a case in a manner supported by the strength of the evidence, proceed to trial on a case, and even dismiss a case. He must balance the interest of the victim, the community, and the constitutional rights of the accused in every decision he makes.

This article will explore the role of the American prosecutor and discuss various ethical issues encountered on a daily basis. After a brief introduction, the author will succinctly discuss the history of the prosecutor and will …

Ethical Limitations On Lawyer-To-Lawyer Online Consultations Regarding Pending Cases, Robert Derner

St. Mary's Journal on Legal Malpractice & Ethics

This comment explains how and when lawyer-to-lawyer consultations are permitted in the online world. In all lawyer-to-lawyer consultations, but especially with the online variety, a lawyer must avoid violating the principle of confidentiality when consulting other lawyers about client matters. While in-person lawyer-to-lawyer consultations have been commonplace in the legal profession for decades, the rise of listservs and social media networks has caused many lawyers to seek advice from colleagues on the Internet.

In considering online lawyer-to-lawyer consultations, there are two major issues. Firstly, a lawyer must determine whether the jurisdiction in which he or she practices permits online lawyer-to-lawyer …

Securing Technological Privacy: Modernizing The Texas Disciplinary Rules Of Professional Conduct To Protect Electronic Data, Ashley "Nikki" Vega

St. Mary's Journal on Legal Malpractice & Ethics

This comment explains how and why the Texas Disciplinary Rules of Professional Conduct (the “Texas Disciplinary Rules”) should be updated to reflect the modernization of technology. Lawyers must keep abreast of changes in the law and its practices; including those which are technological in nature. The American Bar Association (the “ABA”) recently amended the “technology provisions” of its Model Rules of Professional Conduct (the “Model Rules”); namely Rule 1.1 “Competence” and Rule 1.6 “Confidentiality of Information” in order to keep up with the benefits and risks associated with technology in the legal profession. Additionally, over half of all jurisdictions have …

Autonomous Doctrine: Operationalizing The Law Of Armed Conflict In The Employment Of Lethal Autonomous Weapons Systems, Peter C. Combe Ii

St. Mary's Law Journal

Abstract forthcoming

Building A Lifeline: A Proposed Global Platform And Responsibility Sharing Model For The Global Compact On Refugees, Sarnata Reynolds, Juan Pablo Vacatello

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

In 2016, the leaders of 193 governments committed to more equitable and predictable sharing of responsibility for refugees as part of the New York Declaration, to be realized in the Global Compact on Refugees. To encourage debate, this paper presents the first global model to measure the capacity of governments to physically protect and financially support refugees and host communities. The model is based on a new database of indicators covering 193 countries, which assigns a fair share to each country and measures current government contributions to the protection of refugees. The model also proposes a new government-led global platform …

Dignity Takings In Leviathanic Immigration Proceedings, Christopher Mendez

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

Current immigration law in the United States is rife with racially motivated biases necessitating immediate correction. Among the many problems with current law, constitutional rights are withheld from a large populace. This article reflects upon the history of immigration law in the United States, noting key decisions which have formed the status quo. This article also proposes remedies such as the cessation of infringement by government agents on the property rights that affected immigrants have on their own bodies and a modern-day amnesty reflective of the Immigration Reform and Control Act of 1986. This article also introduces Bernadette Atuahene’s concept …

The Taxation Without Representation Of Undocumented Immigrants: Counting Unlawfully Earned Tax Dollars While Intentionally Ignoring Unlawful Presence, María Fernanda Alfaro

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

Federal law mandates that wage earning undocumented immigrants pay taxes. Like all U.S. citizens and legal permanent residents, undocumented immigrants are not exempt from tax obligations solely because of their immigration status in the country. It seems like federal immigration laws are punishing undocumented immigrants for their unlawful presence in the United States, while federal tax laws praise and encourage their continued tax reporting. The Supreme Court’s opinion in Department of Commerce v. New York effectively ended the attempt to get a citizenship question on the 2020 Census, but it by no means closed the door on future attempts. Even …

Combatting The Opioid Epidemic In Texas By Holding Big Pharma Manufacturers Liable, Katherine Spiser

St. Mary's Law Journal

Abstract forthcoming

Standards Of Review In Texas, W. Wendell Hall, Ryan G. Anderson

St. Mary's Law Journal

Abstract forthcoming

Unlimited Liability For Banks: Deposits As Fraudulent Transfers, Katherine Zampas

St. Mary's Law Journal

One of a trustee’s most valuable resources in bankruptcy proceedings is his avoidance powers. A trustee is charged with the duty to recover and recapture any property wrongfully removed from the estate by way of fraudulent transfer or preference. In some cases, a trustee has attempted to treat a debtor’s deposit into a bank account as a transfer, rendering it subject to his avoidance powers. Such a result will leave banks collaterally responsible as a transferee for a debtor’s conduct despite their lack of culpability and control over the funds.

The definition of transfer within the Bankruptcy Code is comprehensive …

Latino Education In Texas: A History Of Systematic Recycling Discrimination, Albert H. Kauffman

St. Mary's Law Journal

Abstract forthcoming

Article Iii Courts V. Military Commissions: A Comparison Of Protection Of Classified Information And Admissibility Of Evidence In Terrorism Prosecutions, Mohamed Al-Hendy

St. Mary's Law Journal

Abstract forthcoming

Population Law And Policy: From Control And Contraception To Equity And Equality, Victoria Mather

St. Mary's Law Journal

Abstract forthcoming

Texas, The Death Penalty, And Intellectual Disability, Megan Green

St. Mary's Law Journal

Abstract forthcoming

Regulating Retirement: Understanding The Impact Of New Best Interest And Fiduciary Standards On Retail Investors, Michael Lichtmacher

St. Mary's Law Journal

Abstract forthcoming

Challenging Voting Rights And Political Participation In State Courts, Irving Joyner

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

Abstract forthcoming

Still Writing At The Master’S Table: Decolonizing Rhetoric In Legal Writing For A “Woke” Legal Academy, Teri A. Mcmurtry-Chubb

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

When the author wrote Writing At the Master’s Table: Reflections on Theft, Criminality, and Otherness in the Legal Writing Profession almost 10 years ago, her aim was to bring a Critical Race Theory/Feminism (CRTF) analysis to scholarship about the marginalization of White women law professors of legal writing. She focused on the convergence of race, gender, and status to highlight the distinct inequities women of color face in entering their ranks. The author's concern was that barriers to entry for women of color made it less likely that the existing legal writing professorate, predominantly White and female, would problematize the …

Not Everybody Loves Raymond: How The Case Of Raymond V. Raymond Made A Shambles Of Interspousal Gift Presumptions And The Parol Evidence Rule In Matters Of Texas Community Property, Pamela E. George

St. Mary's Law Journal

Abstract forthcoming

Handcuffing The Vote: Diluting Minority Voting Power Through Prison Gerrymandering And Felon Disenfranchisement, Rebecca Harrison Stevens, Meagan Taylor Harding, Joaquin Gonzalez, Emily Eby

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

For the purposes of legislative redistricting, Texas counts prison populations at the address of the prison in which they are incarcerated at the time of the census, rather than their home prior to incarceration—regardless of whether the prisoners themselves maintain a residence in their home communities and intend to return home after incarceration. This deprives those home communities of full representation in the redistricting process. Combined with Texas’s felon disenfranchisement laws, this also results in arbitrarily bolstering the representational power of some Texans on the backs of other Texans who themselves are unable to vote. All of this takes place …

Making Democracy Count: The Seemingly Technical Procedures That Can Make Or Break A Census, Charlotte Schwartz, Jeffrey Zalesin, Rachel Brown

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

Abstract forthcoming

Federal Jurisdiction For Above-Ground Oil Storage Tanks: A Practical Analysis For Navigating Federal Regulations, Kathryn Hussong

St. Mary's Law Journal

Clear, consistent, and concise jurisdictional boundaries will aid pipeline operators to determine which regulations apply to their operations and associated facilities. This will help alleviate legal and financial risk to pipeline operators, who may be liable for noncompliance regardless of whether the pipeline operator or the associated refinery commits the violation. Overlapping state and federal regulations of pipelines and refineries has created confusion amongst operators regarding what regulations apply to their facilities. Three federal agencies—the Pipeline and Hazardous Safety Administration (PHMSA), the Occupational Safety and Health Administration, and the Environmental Protection Agency (EPA) respectively—and a myriad of state agencies simultaneously …

Peña-Rodriguez V. Colorado: Carving Out A Racial-Bias Exception To The No-Impeachment Rule, John Austin Morales

St. Mary's Law Journal

The Sixth Amendment safeguards an accused in criminal proceedings and affords them “the right to a speedy and public trial, by an impartial jury.” Consistent with this right, the no-impeachment rule prohibits a juror from testifying after a verdict has been handed down about the jurors’ deliberations. While there are limited exceptions to the no-impeachment rule, juror expressed racial bias is not one of them. When presented with the dilemma of a juror using racial bias in deliberations, courts must weigh two competing doctrines that serve as the foundation to our judicial system: (1) affording a defendant his or her …