Military, War, and Peace Commons^™

Living In Limbo: Single Asset Reorganizations Within The Financially Distressed Fifth Circuit., Thomas J. Meaney

St. Mary's Law Journal

Abstract Forthcoming.

Capital Punishment: A Critique Of The Political And Philosophical Thought Supporting The Justices' Positions., Samuel J.M. Donnelly

St. Mary's Law Journal

Since Gregg v. Georgia, the Supreme Court has developed what could be described as a subparadigm for capital punishment. This subparadigm is now at a point of crisis for two enduring and mutually supporting reasons. The dissents by Justice Brennan and Justice Marshall represent the convergence of the better modern thought in regard to capital punishment. Even with the retirement of both Justices, the criticism found in their dissenting opinions presents a continuing challenge to the plurality’s position. Those using the plurality’s rhetoric are now split into two groups. Justices Blackmun and Stevens regularly vote against capital punishment, while focusing …

Operation Desert Storm, R. E. Lee Or W. T. Sherman?, Jeffrey F. Addicott

Faculty Articles

History has shown that one of the most important elements in a successful combat operation is the quality of the commander. The success of Operation Desert Storm confirmed that American commander, General Norman Schwarzkopf, was no mediocre leader. By extension, the war also paid tribute, albeit a silent one, to a man who is arguably the greatest military leader the United States has ever produced—Robert E. Lee. Not only in the sphere of battlefield tactics, but also in ensuring strict adherence to the laws regulating warfare, Generals Lee and Schwarzkopf had much in common.

Unfortunately, however, many are unaware of …

United States Customs Law Affecting The Movement Of Goods Into And Out Of Mexico., Robert T. Givens, Rayburn Berry

St. Mary's Law Journal

Trade between the United State and Mexico rose dramatically over the past decade. Several factors account for this increase in trade. These factors include the relative weakness of the Mexican currency, growth of the maquiladora industry, and increased Mexican production of exportable products generally. Other factors include Mexico’s 1986 accession to General Agreements Tariff and Trade (GATT), the resultant lowering of Mexican customs duties, and a good long-term working relationship between the two countries. If ongoing negotiations culminate in a North American Free Trade Agreement (NAFTA) the trend will accelerate.

Laws regulating the importation of merchandise into the United States …

The Case For A Texas Compulsory Unitization Statute., Paula C. Murray, Frank B. Cross

St. Mary's Law Journal

Compulsory unitization of oil and natural gas reservoirs would substantially enhance the welfare of the United States and of Texas in particular. The present regulated free market for oil production produces both inefficiencies and inequities. Consequentially, oil exploration is discouraged, oil production is unnecessarily costly and wasteful, and the private distribution of oil revenues can be arbitrarily unfair. Compulsory unitization would remedy many of these shortcomings which result from extant structures. Unitization means the cooperative development of an entire reservoir of oil or gas. Compulsory unitization in most states also contains a variety of substantive and procedural prerequisites to unitization …

Changing The Consent Rules For Desert Storm, George J. Annas

Faculty Scholarship

Shortly before the beginning of Operation Desert Storm, during Desert Shield, the U.S. military sought a waiver of requirements for informed consent for the use of investigational drugs and vaccines on our troops in the Persian Gulf. The danger of chemical and biologic warfare was seen as demanding this waiver, although the Nuremberg Code, other codes of medical ethics, and respect for the human rights of American soldiers seemed to caution against it. One year later it seems reasonable to review this decision. The legal maneuvering to revise consent regulations for wartime conditions provides a case study that highlights three …

Continuing Limits On Un Intervention In Civil War, Mary Ellen O'Connell

Journal Articles

Can the United Nations (UN or Organization) send military forces into civil war without the consent of the parties to the conflict? To date, it never has, but with the end of the Cold War, the Organization is in a position to think again about its proper role in civil war. During the past year, the Security Council has had requests to intervene in the civil wars in Iraq, Yugoslavia, and Somalia. So far, the UN has sent troops to Iraq and Yugoslavia but only after getting the consent of all parties.

The Security Council's recent decisions conform with the …

Unpublished Opinions Shall Not Be Cited As Authority: The Emerging Contours Of Texas Rule Of Appellate Procedure 90(I)., David M. Gunn

St. Mary's Law Journal

In Texas, worries of judicial overproduction have persisted throughout the twentieth century. Although the Texas Supreme Court began to use per curiam opinions more frequently around 1925, the flood continues. Texas now has more courts and judges than ever before, and history offers no reason to expect retrenchment. The present scheme in Texas creates two classes of judicial opinions, published and unpublished. Unpublished opinions are not supposed to count for purposes of stare decisis, while published opinions do. Texas Appellate Rule 90 regulates the issuance of opinions from the courts of appeals. Part (a) requires intermediate courts to issue written …

Analyzing Scientific Evidence: From Validity To Reliability With A Two-Step Approach., Renee A. Forinash

St. Mary's Law Journal

Throughout legal history, courts have wrestled with scientific evidence. Sometimes the courts admitted invalid evidence disguised as science. In the 1920’s, courts developed a very limited standard of admissibility for scientific evidence. Under the Frye test, a scientific expert’s conclusion was inadmissible unless the conclusion was generally accepted by the scientific community. Although this prevented “junk science” from invading courtrooms, it also protected invalid scientific evidence already present in the system and restricted using new, but valid, scientific techniques. In response, many jurisdictions developed more liberal evidentiary standards. The liberal standards averted the “cultural lag” for which Frye was criticized …

Privitization Of The Mexican Banking System: Quetzalcoatl And The Bankers., John P. Cogan Jr.

St. Mary's Law Journal

Abstract Forthcoming.

Federal Income Tax Issues In The Organization, Financing, And Operation Of Maquiladoras., William R. Leighton, T. Richard Sealy Iii

St. Mary's Law Journal

This Article principally considers various United States federal income tax issues in the formation, financing, and operation of maquiladoras. Mexico’s most successful means of attracting foreign investment is its Maquiladora Program. Mexico created the program to encourage U.S. and other non-Mexican enterprises to establish manufacturing facilities in Mexico. It spawned a domestic industry whose economic output is second only to that of Mexico’s national oil industry. In the 1980s, the maquiladora industry experienced explosive growth from 620 plants in 1980 to more than 2,000 currently. They employ approximately 500,000 workers earning an average wage of five dollars per day plus …

Joint Ventures In Mexico: A Current Perspective., Rona R. Mears

St. Mary's Law Journal

The Article is intended to go beyond legal issues, to address core practical considerations in forging successful U.S.-Mexico joint ventures. Opportunities unmatched in Mexico’s history are now available for foreign investors and traders doing business in Mexico. This Article will begin by presenting a historical perspective on joint venturing in Mexico and then contrast it with an examination of current uses of joint ventures in Mexico. It will also highlight the traditional advantages of strategic business alliances. Following is a detailed review of structuring the Mexican joint venture. Finally, this Article identifies strategies for dealing with practical issues which arise …

Foreign Investment In Mining In Mexico., Rodrigo Sanchez-Mejorada Velasco

St. Mary's Law Journal

The object of this Article is to focus on the current legal provisions which regulate foreign investment in mining in Mexico. Legislation implemented in 1961 reduced foreign participation in mining to a minority position, and legislation implemented in 1975 further developed Mexican control over mining activities. The enactment of new foreign investment regulations in 1989, and new mining regulations in late 1990 allowed wider participation of foreigners in mining. Mining is one of the oldest economic activities in Mexico. Mercantilist economic ideas, in Europe in the seventeenth and eighteenth centuries, stressed accumulation of precious metals by states and saw American …

Peremptory Jury Strike In Texas After Batson And Edmondson., Alan B. Rich

St. Mary's Law Journal

In Batson v. Kentucky, the United States Supreme Court overruled that portion of Swain v. Alabama, which had imposed a “crippling burden of proof” upon a person who wished to vindicate his right of equal protection under the Fourteenth Amendment in the face of a racially motivated peremptory challenge. Under Batson, a defendant can raise an inference of discrimination and prove it using only evidence adduced at his own trial. Two fundamental questions needing resolution prior to involving the Batson procedures are: (A) who has standing to bring a Batson challenge; and (B) who must be challenged before the Batson …

God Is Dead: Killed By Fifty Years Of Establishment Clause Jurisprudence., Raul M. Rodriguez

St. Mary's Law Journal

In 1980, the Supreme Court in Stone v. Graham addressed the issue of whether a statute requiring the display of the Ten Commandments in all public school classrooms was an unconstitutional establishment of religion. Applying the Lemon test the Court found the statute’s purpose to be religious and ruled it unconstitutional. Yet, had the state required the placement of the following “secular commandments” in every classroom, it is unlikely the Court would have found an Establishment Clause violation. Stone illustrates what the Supreme Court’s Establishment Clause jurisprudence has become. The Court has misconstrued the meaning of the “establishment of religion” …

Limiting Punitive Damages: A Placebo For America's Ailing Competitiveness., Jimmie O. Clements Jr.

St. Mary's Law Journal

This Comment will discuss Vice President Dan Quayle’s proposed legislation by reviewing the history of punitive damages and providing an overview of current state legislation. Thereafter, this Comment debunks the theory of an unruly punitive damage system and analyzes the impact of a punitive damages cap on competitiveness, quality, safety and the doctrine’s underlying goals. On August 13, 1991, Vice President Quayle, as head of the President’s Council on Competitiveness (the Council), addressed the American Bar Association’s annual meeting. He announced a fifty-point proposal designed to improve the civil justice system. Vice President Quayle proposed, inter alia, a cap on …

The Evolution Of Government Liability Under Section 1983., Christopher J.M. Pettit

St. Mary's Law Journal

The Fourteenth Amendment of the United States Constitution provides in order to enforce the law, Congress shall have the power to pass enabling legislation. In the exercise of this power, Congress enacted the Civil Rights Act of 1871, to implement the prohibition of slavery as required by the Thirteenth Amendment. Although the Thirteenth Amendment abolished the institution of slavery, discriminatory actions by private citizens remained prevalent. During the period following reconstruction, congressional legislation shifted focus from prohibiting state action to prohibiting the actions of private individuals who violated the civil liberties of others. Through the passage of the Civil Rights …

Heitman V. State: The Question Left Unanswered., Matthew W. Paul, Jeffrey L. Van Horn

St. Mary's Law Journal

In Heitman v. State, the Texas Court of Criminal Appeals appeared to break with the court’s prior holdings to announce it would no longer “automatically adopt and apply” to the search and seizure provisions of the Texas Constitution “the Supreme Court’s interpretations of the Fourth Amendment.” The reaction to Heitman was immediate and striking. Heitman is obviously a significant decision that could impact Texas criminal jurisprudence for decades. Yet, the decision left many questions unanswered, including whether the search and seizure provision should be construed as placing greater restrictions on law enforcement than the Fourth Amendment of the United States …

The Political Philosophy Of Campaign Finance Reform As Articulated In The Dissents In Austin V. Michigan Chamber Of Commerce., John S. Shockley, David A. Schultz

St. Mary's Law Journal

The 1992 presidential candidacy of Jerry Brown, who called for campaign contribution limits, has reignited the issue of campaign finance reform. Indeed, the United States Supreme Court has recognized the importance of campaign finance reform as a judicial issue. The importance of this issue is marked by the Court’s continued willingness to address the regulation of campaign finance since the 1976 landmark case of Buckley v. Valeo. The case of Austin v. Michigan Chamber of Commerce emphasized the somewhat confused nature of the Supreme Court’s campaign finance reform decisions. The Supreme Court and state legislatures will likely continue to address …

Wrongful Adoption: A Guide To Impending Tort Litigation In Texas., Fred S. Wilson

St. Mary's Law Journal

Texas has an opportunity to improve a necessary tool of family law by recognizing and advancing wrongful adoption. There is an underlying lack of recognition for the interests of adoptive parents in adoption law. Those who choose to adopt necessarily rely on the information provided by an adoption agency in making their decision. As such, adoptive parents are particularly vulnerable to misrepresentation about the pertinent history of the adoptee. Recent cases in other states demonstrate the progression of wrongful adoption as a tort, yet many inadequacies remain. The necessary progression of wrongful adoption calls for the imposition of a duty …

The Legal Regime Governing The Conduct Of Operation Desert Storm, Robert K. Goldman

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Twenty-Fifth Anniversary Of My Lai: A Time To Inculcate The Lessons, Jeffrey F. Addicott, William A. Hudson Jr

Faculty Articles

The spring of 1993 marks the twenty-fifth anniversary of the My Lai massacre and is an appropriate time to reinforce the lessons learned from the event. Each and every grave breach of the law of war represents a horrible scar on the credibility of the American military, as well as the civilized democracy it protects. In this context, My Lai stands as the greatest emblem of American military shame in the twentieth century. Nothing provides a greater vehicle for inculcating the necessity for strict adherence to the law of war than the lessons from the massacre at My Lai.

While …

The Pentagon Papers Case: Recovering Its Meaning Twenty Years Later, David Rudenstine

Cardozo Law Review

No abstract provided.

Palestine And Israel: A Challenge To Justice, James E. Hopenfeld

Michigan Law Review

A Review of Palestine and Israel: A Challenge to Justice by John Quigley

Our First Televised Genocide, Kenneth Lasson

All Faculty Scholarship

It is absolutely appalling that we have come so casually to observe the carnage, so passively to view the starvation over breakfast papers or dinnertime newscasts, so helplessly to watch these totally bereft human beings trudging barefoot over treacherous terrain toward the middle of nowhere.

There are other questions as well, of course, not as easily answered. Where are all their voices now, those demonstrators who so vociferously opposed war, ostensibly out of an overweening reverence for life? Is the latter-day holocaust being systematically perpetrated in northern Iraq any less horrifying than a direct hit on a camouflaged bomb shelter …

Be All You Can Be (Without The Protection Of The Constitution), Keith M. Harrison

Law Faculty Scholarship

[Excerpt] “Despite the generous inclusion by President Reagan of the many soldiers, sailors, airmen, and marines in the concept of "the people" of this republic, it is not altogether dear whether one whose status has changed from ordinary "citizen" to "a member of the armed forces" can legitimately claim any of the constitutional protections of citizenship until he or she is no longer a member of the armed forces. In the course of this nation's history the Supreme Court has denied some or all of the protection of the Constitution to many groups of people, including African-Americans, 2 women,3 Native …

Legal Liability Of The Armed Forces When Dealing With Internal Disturbances: The Unsatisfactory Anglo-American Approach, Michael F. Noone Jr.

Scholarly Articles

This paper will outline the historical development and current state of the Anglo-American law regarding the criminal and civil liability of military force when they are used in aid of the civil forces in the hope that it will elicit two kind of response - criticism of my thesis, and research by individuals into this timely and difficult problem.

The Strategic Defense Initiative And The Militarization Of Space: Scientific Responsibility And Citizen Resistance, Matthew Lippman

Penn State International Law Review (1982 - 2011)

The moderating of international tensions between the superpowers, the slowing of the nuclear arms race and the promise of a peace dividend have all contributed to a lessened popular concern over issues of national defense.1 The diversion of attention from war and peace has resulted in little scholarly attention being paid to the ominous potential growth in third-generation high-technology weapons.

An Equal Right To Fight: An Analysis Of The Constitutionality Of Laws And Polices That Exclude Women From Combat In The United States Military, Kathy L. Snyder

West Virginia Law Review

No abstract provided.

Managed News, Stifled Views: Free Expression As A Casualty Of The Persian Gulf War, Gara Lamarche

NYLS Journal of Human Rights

No abstract provided.