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Articles 61 - 90 of 134
Full-Text Articles in Military, War, and Peace
Securing One's Fourth Amendment Rights Through Issue Preclusion: Assessing Texas's Application Of Collateral Estoppel To Multiple Suppression Motions Filed In Separate Courts., Garrett T. Reece
St. Mary's Law Journal
This Comment will assess the split in Texas courts over the issue of collateral estoppel’s application in different motion to suppress hearings. By placing collateral estoppel within the confines of the Double Jeopardy Clause, federal law essentially extinguished one form of collateral estoppel and invented another form of the doctrine. Remnants of both forms are still alive, however, and Texas is one state in which both forms of collateral estoppel may be invoked in a criminal proceeding. Part II provides a historical analysis of the exclusionary rule, Double Jeopardy Clause, and collateral estoppel’s rise in criminal court. Part III addresses …
Determining The Indeterminate Defect., J. Gregory Marks
Determining The Indeterminate Defect., J. Gregory Marks
St. Mary's Law Journal
Abstract Forthcoming.
The Ethics Of Empire, Again, Jedediah S. Purdy
The Ethics Of Empire, Again, Jedediah S. Purdy
Faculty Scholarship
Noah Feldman has emerged as one of the most serious and thoughtful contributors to U.S. strategy in the age of terrorism and counterterrorism. Professor Feldman spent a good chunk of 2003 in Baghdad as a constitutional advisor to the Iraqi Governing Council, which was established under the occupation government of Ambassador Paul Bremer. Since then, Feldman has become an important commentator on U.S. policy in Iraq. Many young political operatives cycled through Iraq in 2003 and 2004, but Feldman was unusually well qualified for his position. He holds a degree in Islamic thought, speaks fluent Arabic, and specializes in the …
Legal "Black Hole"? Extraterritorial State Action And International Treaty Law On Civil And Political Rights, Ralph Wilde
Legal "Black Hole"? Extraterritorial State Action And International Treaty Law On Civil And Political Rights, Ralph Wilde
Michigan Journal of International Law
This Article considers the significant role that extraterritorial activity is playing in the post-9/11 foreign policy of some States and the idea that this activity somehow takes place "outside" the law or, at least, outside an arena where legal norms apply as a matter of course rather than only when and to the extent that the State involved decides these norms will apply. It begins in Section II by mapping out the extraterritorial state activities conducted since 9/11, covering activities with a personalized object-such as the military action taken in Afghanistan against Al Qaeda-and activities with a spatial (territorial) object-such …
The Evolving Nature Of The Crime Of Genocide, 38 J. Marshall L. Rev. 1227 (2005), Ralph Ruebner
The Evolving Nature Of The Crime Of Genocide, 38 J. Marshall L. Rev. 1227 (2005), Ralph Ruebner
UIC Law Review
No abstract provided.
The Occupation Of Iraq, Gregory H. Fox
The Occupation Of Iraq, Gregory H. Fox
Law Faculty Research Publications
No abstract provided.
Attorney Disciplinary Procedure In Texas: Competing Interests And Philosophies 1988-2004 The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility: Essay., Dawn Miller, Daniel A. Naranjo
Attorney Disciplinary Procedure In Texas: Competing Interests And Philosophies 1988-2004 The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility: Essay., Dawn Miller, Daniel A. Naranjo
St. Mary's Law Journal
Abstract Forthcoming.
Disguising Empire: Racialized Masculinity And The Civilizing Of Iraq, Nancy Ehrenreich
Disguising Empire: Racialized Masculinity And The Civilizing Of Iraq, Nancy Ehrenreich
Cleveland State Law Review
I will argue here that the rhetoric used by the Bush administration (and the media) to sell U.S. military aggression to the American public has played upon the gender insecurities and racial biases of the population. To be more specific, it has reinforced a racialized national sense of masculinity by playing on the association of maleness with violent domination of people of color - domination seen as laudable because it is undertaken "for their own good." In so doing, it has also reinforced the message that the way for people of color in this country to become true "Americans" is …
Article 9 Of The Constitution Of Japan And The Use Of Procedural And Substantive Heuristics For Consensus, Mark A. Chinen
Article 9 Of The Constitution Of Japan And The Use Of Procedural And Substantive Heuristics For Consensus, Mark A. Chinen
Michigan Journal of International Law
This Article’s purpose is to examine the revision debates through the lens of recent scholarship on constitutional decisionmaking to see what lessons might be drawn about constitutionalism in Japan and elsewhere. In Part I, the author discusses Article 9's text and interpretation and focus on three controversies: first, Japan's ability to use force to defend itself and the related issue of the constitutionality of the Japan Self Defense Force (SDF); second, Japan's ability to engage in collective self-defense, which impacts the state's security relationship with the United States under the U.S.-Japan Mutual Security Agreement; and finally, Japan's ability to participate …
The Moussaoui Case: The Mess From Minnesota, Afsheen John Radsan
The Moussaoui Case: The Mess From Minnesota, Afsheen John Radsan
William Mitchell Law Review
This article, after giving a brief history of the Moussaoui case, identifies the main paradoxes or problems of continuing to deal with him in the criminal system. By no stretch of the imagination does this article provide an exhaustive or comprehensive treatment of the Moussaoui case. Each problem, by itself, could be the subject of a separate law review article. This article suggests that Moussaoui, rather than Yaser Esam Hamdi, or Jose Padilla, or the detainees in Guantanamo Bay, could have served as the true test for determining the minimum process that the American Constitutional system owes to an individual …
What Is War? Reflections On Free Speech In 'Wartime, David Skover, Ronald Collins
What Is War? Reflections On Free Speech In 'Wartime, David Skover, Ronald Collins
Faculty Articles
Written as the lead article for a Symposium issue commemorating the Free Speech in Wartime Conference held in January of 2005 at Rutgers Law School - Camden, this piece analyzes the following questions: What qualifies as war in the 21st Century? Who determines when the country is at war? And what effect, if any, should the existence of a war have on judicial review of First Amendment challenges?
Mind The Gap: Expansion Of Texas Governmental Immunity Between Takings And Tort., Jadd F. Masso
Mind The Gap: Expansion Of Texas Governmental Immunity Between Takings And Tort., Jadd F. Masso
St. Mary's Law Journal
In Jennings v. City of Dallas, the city’s wastewater collection division was dispatched to unstop a clogged sewer main but instead caused sewage to spew into the Jennings’ home with dramatic force, causing extensive damage. The Jennings subsequently filed suit against the city, alleging its actions constituted an unconstitutional taking, damaging, or destruction of their property for public use without adequate compensation in violation of Article I, § 17 of the Texas Constitution. The issue presented from the case was whether an individual citizen should be liable for such losses when the damage—as an incident to governmental action—in effect benefits …
Much Ado About Nothing - Why Desert Palace Neither Murdered Mcdonnell Douglas Nor Transformed All Employment Discrimination Cases To Mixed-Motive Essay., Matthew R. Scott, Russell D. Chapman
Much Ado About Nothing - Why Desert Palace Neither Murdered Mcdonnell Douglas Nor Transformed All Employment Discrimination Cases To Mixed-Motive Essay., Matthew R. Scott, Russell D. Chapman
St. Mary's Law Journal
Abstract Forthcoming.
Unintentional Franchising., Mark H. Miller
Unintentional Franchising., Mark H. Miller
St. Mary's Law Journal
The focus of this Article is on honest businesses that do not realize they may be legally regulated as "franchisors" or "business opportunity sellers" and subject to potentially awful consequences due to noncompliance. This Article first discusses federal and other states' laws, then the Texas Business Opportunity Act (BOA), and finally, practical and litigation consequences.
Good Cause In The Texas Rules Of Civil Procedure., Naomi Mccuistion
Good Cause In The Texas Rules Of Civil Procedure., Naomi Mccuistion
St. Mary's Law Journal
The Texas judiciary should give “good cause” a single meaning. Ambiguity exists concerning the phrase “good cause” amongst Texas courts. Three different standards of “good cause” currently exist in Texas including: the Stelly/Craddock standard, the Alvarado standard, and the Remington Arms standard. Under the Stelly/Craddock standard—if withdrawal of deemed admissions is requested—“good cause” is required showing the failure was unintentional as a result of an accident or mistake. Under the Alvarado standard—if the request is to offer testimony of a witness who was not timely identified—the court requires a more strict showing of “good cause” not satisfied by an attorney’s …
Superseding Attorney's Fees And Pre-Judgment Interest After House Bill 4., Jonathan Yedor, Regina M. Uhl
Superseding Attorney's Fees And Pre-Judgment Interest After House Bill 4., Jonathan Yedor, Regina M. Uhl
St. Mary's Law Journal
Supersedeas is a rule of procedure allowing a judgment debtor to suspend enforcement of a judgment “by posting security set by the trial court” during the pendency of an appeal. The purpose of it is to “protect[ ] the [prevailing] party [following trial and entry of judgment] from the risk of a later uncollectible judgment and [to] compensate[]’” the prevailing party “for delay in the entry of final judgment.” This means the changes are meant to ensure a judgment debtor does not lose the right to appeal simply because the bond on judgment is too expensive so as to be …
Kelo V. City Of New London, Tulare Lake Basin Water Storage District V. United States, And Washoe County V. United States: A Fifth Amendment Takings Primer., Christopher L. Harris, Daniel J. Lowenberg
Kelo V. City Of New London, Tulare Lake Basin Water Storage District V. United States, And Washoe County V. United States: A Fifth Amendment Takings Primer., Christopher L. Harris, Daniel J. Lowenberg
St. Mary's Law Journal
The Takings Clause of the Fifth Amendment is a remedy available to citizens for the government's undue interference with private property rights. It operates similarly to an affirmative defense as it entitles citizens to “just compensation” when the government “takes” private property for “public use.” The Takings Clause thus embodies the idea that society values the protection of private property. The Supreme Court of the United States stated the purpose of the Takings Clause is “to bar Government from forcing citizens from bearing public burdens which, in all fairness, should be borne by the public as a whole.” Kelo v. …
Questionable Summary Judgments, Appearances Of Judicial Bias, And Insurance Defense In Texas Declaratory-Judgment Trials: A Proposal And Arguments For Revising Texas Rules Of Civil Procedure 166a(A), 166a(B), And 166a(L)., Willy E. Rice
St. Mary's Law Journal
Economic necessity, expanding dockets, and judicial bias and unfairness are reasons for removing summary judgement practice from declaratory judgment trials in Texas. The Texas Supreme Court adopted the summary judgment rule primarily to prevent juries from considering arguably groundless causes, to reduce costs, and to increase "the efficient administration of justice." The Texas Supreme Court could prevent summary judgment practice in declaratory judgment cases. Texas's judges have the power to decide questions of fact and law when considering whether to award declaratory relief, negating the perceived need to entertain motions for summary relief. Trial judges must employ those doctrines to …
Utter Excitement About Nothing: Why Domestic Violence Evidence-Based Prosecution Will Survive Crawford V. Washington., Donna D. Bloom
Utter Excitement About Nothing: Why Domestic Violence Evidence-Based Prosecution Will Survive Crawford V. Washington., Donna D. Bloom
St. Mary's Law Journal
In response to domestic violence involving victims who do not wish to cooperate in the prosecution of their abuser, prosecutors endeavor to frame cases around other evidence establishing a defendant’s guilt regardless of the victim’s testimony. Domestic violence cases set for trial are being thrown out of Texas courts because of the recent U.S. Supreme Court ruling that reasserts a defendant’s right to confront his accuser in court. Prosecutors believe that strong legal arguments exist to continue successfully prosecuting abusers without the cooperation of the victim at trial. This is through the continued admission of certain hearsay statements, despite Crawford …
Even Judges Don't Know Everything: A Call For A Presumption Of Admissibility For Expert Witness Testimony In Lawyer Disciplinary Proceedings The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Timothy P. Chinaris
St. Mary's Law Journal
Today's practice environment is full of potential ethical pitfalls for even the most conscientious lawyer. The consequences of being found guilty of misconduct can include suspension or disbarment from practicing as a lawyer. Added to these concerns is the fact that the judge or hearing panel before whom the case is tried may not be intimately familiar with the particular ethics rules or how they are interpreted in different areas of practice. In order to mount an effective defense against the disciplinary charges, an accused lawyer may want to introduce expert testimony on his or her behalf. Unfortunately for the …
Leveling The Legal Malpractice Playing Field: Reverse Bifurcation Of Trials The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Dwayne J. Hermes, Jeffrey W. Kemp, Paul B. Moore
Leveling The Legal Malpractice Playing Field: Reverse Bifurcation Of Trials The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Dwayne J. Hermes, Jeffrey W. Kemp, Paul B. Moore
St. Mary's Law Journal
The growing public demand for perfect results is shifting the time-tested obligation of lawyers to meet the standard of care. The general public no longer deems the advice and performance of professionals as beyond reproach. While this is probably a positive development, it appears that a number of clients (and patients) are raising the bar too high by expecting and demanding a perfect result. The legal malpractice suit is in vogue, and juries are increasingly holding attorneys to be guarantors of a favorable outcome for their clients. A significant portion of legal malpractice suits are merely thinly veiled claims for …
The Business Of Law And Tortious Interference The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Alex B. Long
St. Mary's Law Journal
While few in the legal profession would refer to clients as “property”, it is difficult to think some lawyers do not believe they possess something similar to property rights in their retainer agreements with clients. Not surprisingly, a tortious interference claim is a viable option for an attorney who feels that another attorney has wrongfully “stolen” a client or otherwise interfered with the attorney’s “property.” Courts have traditionally been reluctant to hold attorneys liable for litigation conduct that results in harm to adversaries or their attorneys. Plaintiff-attorneys generally have a better chance of succeeding when they complain that another attorney—while …
Unresolved Problems In Texas Legal Malpractice Law The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Stephen E. Mcconnico, Jennifer Knauth, Robyn Bigelow
Unresolved Problems In Texas Legal Malpractice Law The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility., Stephen E. Mcconnico, Jennifer Knauth, Robyn Bigelow
St. Mary's Law Journal
Legal malpractice jurisprudence is a dynamic and evolving area of Texas law. In its evolution, many issues have arisen regarding potential areas for attorney liability and discipline. The Texas Supreme Court opinion in Alexander v. Turtur & Associates, Inc. discusses the “suit within the suit” requirement for causation in litigation malpractice cases. The case also raised an important question—whether and in what circumstances causation should be treated as a question of law for the trial judge in the malpractice case, rather than as a question of fact for the jury. The Alexander opinion suggests that both the jury submission issues …
The Emperor's New Clothes: Cloaking Client Protection Under The New Model Court Rule On Insurance Disclosure The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility: Comment., Nicole D. Mignone
St. Mary's Law Journal
Traditionally, the legal profession prides itself on its ability to self-regulate and prefers to “take care of its own” in the disciplinary realm. The Model Court Rule on Insurance Disclosure (the Rule) invites an initial effort toward the legal profession’s self-regulating ideals and client protection. The Rule requires private practice attorneys to report to their state whether they plan to maintain liability insurance, which is then disclosed to the public. Unfortunately, the Rule’s ambiguous language and requirements create worrisome issues for both the attorney and client. Attorneys without malpractice insurance may be indirectly forced to obtain it. This expense could …
Legal Ethics In Capital Cases: Looking For Virtue In Roberts V. Dretke And Assessing The Ethical Implications Of The Death Row Volunteer The Fourth Annual Symposium On Legal Malpractice And Professional Responsibility: Comment., J. Caleb Rackley
St. Mary's Law Journal
Abstract Forthcoming.
Reeves V. Sanderson Plumbing Products: The Emperor Has No Clothes - Pretext Plus Is Alive And Kicking., Matthew R. Scott, Russell D. Chapman
Reeves V. Sanderson Plumbing Products: The Emperor Has No Clothes - Pretext Plus Is Alive And Kicking., Matthew R. Scott, Russell D. Chapman
St. Mary's Law Journal
Before the Supreme Court’s decision in Reeves v. Sanderson Plumbing Products, Inc., the Fifth Circuit’s en banc decision in Rhodes v. Guiberson Oil Tools established the proper standard of causation in employment discrimination cases. The plaintiff must prove his or her protected trait was the “determinative reason” for the challenged employment action. Following Reeves, which appeared to overrule Rhodes and the doctrine of pretext plus, the Fifth Circuit struggled with the causation question. Despite the apparent confusion, the Fifth Circuit has largely reaffirmed not only its commitment to the Rhodes pretext-plus analysis, but also the determinative-reason standard for pretext cases. …
Protecting Rights In The Age Of Terrorism: Challenges And Opportunities, Rosa Brooks
Protecting Rights In The Age Of Terrorism: Challenges And Opportunities, Rosa Brooks
Georgetown Law Faculty Publications and Other Works
Depending on whom you speak to these days (and the mood in which you find them), international law is either practically moribund, or it's more vibrant and important than it has been for years. To take the good news story first, international law issues have been at the forefront of public discourse over the past few years. Pick your issue: the U.N. Charter and the international law on the use of force? The Convention Against Torture? The Geneva Conventions? You'll find it on the front page these days. Journalists are phoning international law professors for background briefings, and students are …
Revised Texas Rule Of Civil Procedure 173: The True Scope Of A Guardian Ad Litem's Representation., Allison P. Mingle
Revised Texas Rule Of Civil Procedure 173: The True Scope Of A Guardian Ad Litem's Representation., Allison P. Mingle
St. Mary's Law Journal
The former statute governing the appointment of a guardian ad litem was ineffective and did not serve as adequate guidance for trial courts or appointees. It failed to outline the specific role a guardian ad litem was to play during a suit and was also unsuccessful at outlining what aspects of litigation a guardian ad litem could and could not participate in during trial or settlement. The former version of the rule allowed for a reasonable fee to compensate the guardian ad litem for services but failed to state specific parameters for judges to determine what “reasonable” means. On the …
Qui Tam: Survival Of The Action And Fate Of The Proceeds Following The Death Of The Relator For The King And For Himself ... And His Heirs., Joseph E. Hoffer
Qui Tam: Survival Of The Action And Fate Of The Proceeds Following The Death Of The Relator For The King And For Himself ... And His Heirs., Joseph E. Hoffer
St. Mary's Law Journal
In the market economy of the United States, a large segment of industry is focused on providing goods and services to the government or to the public on behalf of the government. Often, small businesses are preferred to multinational corporations. But, when the actions of a business toward the government involve the myriad methods of deceit and inflating costs and billing, the business’s legitimate actions have turned into fraud against the government. For those employees who witness this fraudulent behavior and wish to act, one option is to file a qui tam action. The action may be brought either by …
The Law On Intervention: Africa's Pathbreaking Model, Jeremy I. Levitt
The Law On Intervention: Africa's Pathbreaking Model, Jeremy I. Levitt
Journal Publications
This article seeks to examine the sum and substance of the evolving intervention regime in Africa. I employ a structural approach to highlight the normative framework governing humanitarian intervention in Africa at the sub-regional and regional levels. The article is meant to be a snapshot rather than a comprehensive treatment of the law of intervention in Africa. Space constraints preclude examination of the legality of the various post-Cold War, unilateral African interventions (i.e., those that took place without prior Security Council authorisation or valid state consent). These include the interventions by the Economic Community of West African States (ECOWAS) in …