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Articles 181 - 210 of 854
Full-Text Articles in Oil, Gas, and Mineral Law
Judicial Review Of Arbitration Awards In The Fifth Circuit., Christopher D. Kratovil
Judicial Review Of Arbitration Awards In The Fifth Circuit., Christopher D. Kratovil
St. Mary's Law Journal
In the wake of a defeat in arbitration, trial lawyers seek appellate counsel looking for some method to escape the arbitrator’s decision. Most leave such offices disappointed after having been informed arbitration awards will be set aside by the courts “only in very unusual circumstances.” The Federal Arbitration Act (FAA) fully endorses arbitration and liberally encourages its use as an alternative to traditional litigation. Consistent with Congress’ focus on speed, efficiency, and cost reduction, a critical goal of arbitration is to establish “finality” at the earliest possible point. Unfortunately, early finality is antithetical to robust appellate proceedings. Yet, the FAA …
Ethical Considerations Concerning Contacts By Counsel Or Investigators With Present And Former Employees Of An Opposing Party The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility., James L. Burt, Jeremy J. Cook
Ethical Considerations Concerning Contacts By Counsel Or Investigators With Present And Former Employees Of An Opposing Party The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility., James L. Burt, Jeremy J. Cook
St. Mary's Law Journal
Present and former employees of an opposing party are often the best source of information concerning that party’s activities. Contact with these employees or their representatives may be considered ethical or unethical depending on the circumstances. Unfortunately, the rules governing such contacts are neither clear nor consistent. The first issue lawyers must resolve is whether the present and former employees are considered “represented” under Rule 4.2 of the Model Rules of Professional Conduct. If they are “unrepresented” for purposes of Rule 4.2, the issue then becomes whether Rule 4.3 applies. Of grave importance are the potential sanctions, which include the …
Setting The Limits In Texas Construction Law: A Look At The Surety's Limitations Under Indemnity Agreements And Equitable Subrogation Comment., John C. Warren
Setting The Limits In Texas Construction Law: A Look At The Surety's Limitations Under Indemnity Agreements And Equitable Subrogation Comment., John C. Warren
St. Mary's Law Journal
To clarify divergent case law, Texas courts should adopt good faith as the necessary standard governing indemnity agreements. Texas court decisions limiting settlement of bond claims by sureties can be split into three categories: (1) those cases where indemnity agreements fail to vest authority in the indemnitee to settle claims or require a good faith standard; (2) those expressly stating indemnitees have authority to settle claims in good faith; and (2) those expressly vesting a surety with exclusive rights to determine which bonded claims should be settled. Under the first line of cases courts apply common law indemnity principles requiring …
Comparative Responsibility In Nonsubscriber Litigation Revisited After Kroger Co. V. Keng., Trek C. Doyle, Jarrett R. Andrews
Comparative Responsibility In Nonsubscriber Litigation Revisited After Kroger Co. V. Keng., Trek C. Doyle, Jarrett R. Andrews
St. Mary's Law Journal
The Texas Supreme Court’s decision in Kroger Co. v. Keng appears to resolve the question of whether an employer who does not subscribe to worker’s compensation can avail itself of the proportionate responsibility scheme in Chapter 33 of the Texas Civil Practice and Remedies Code. The question left unresolved is whether proportionate responsibility is available in nonsubscriber cases involving additional independently liable defendants. In Keng, the Court premised its holding on Texas Labor Code § 406.033, concluding nonsubscribing employers are prohibited from proving its employees were negligent. The Keng Court declined to decide whether proportionate responsibility was unavailable per se. …
Current Trends In Texas Charge Practice: Preservation Of Error And Broad-Form Use., William G. Arnot Iii, David Fowler Johnson
Current Trends In Texas Charge Practice: Preservation Of Error And Broad-Form Use., William G. Arnot Iii, David Fowler Johnson
St. Mary's Law Journal
Over the years Texas appellate courts have been wrestling with two overwhelming charge issues—charge preservation of error and broad-form use. Since the charge is the controlling document the jury uses to decide the factual issues of the case, it is of extreme importance. Before a party can complain on appeal about charge errors, the error must be preserved at trial. The Texas Rules of Civil Procedure (TRCP) have a certain set of procedures for preservation of charge error. The Texas Supreme Court amended charge preservation of error practice in State Department of Highways & Public Transportation v. Payne. In the …
The Path Of Least Resistance: The Effects Of Groundwater Law's Failure To Evolve With Changing Times Comment., Bruce E. Toppin Iii
The Path Of Least Resistance: The Effects Of Groundwater Law's Failure To Evolve With Changing Times Comment., Bruce E. Toppin Iii
St. Mary's Law Journal
Groundwater is a type of freshwater stored in the earth’s crust which does not flow through underground channels. In Texas, groundwater is becoming highly sought-after, and development of proper management and conservation models is crucial to preserve the resource for future generations. In Texas, ownership of groundwater is governed by the common law doctrine of absolute ownership, commonly mislabeled as the rule of capture. The absolute ownership doctrine still governs groundwater ownership, but its application has been judicially altered to limit the rights of landowners who wish to pump water from beneath their lands. Texas lawmakers also contributed to the …
Spam (Supremacy Clause, Public Forums, And Mailings): The Fifth Circuit's Interpretation Of The Can-Span Act In White Buffalo V. University Of Texas Comment., Jason A. Smith
St. Mary's Law Journal
Unsolicited email advertisement, spam, has been a problem of the internet since its inception. In the face of this onslaught, users have fought back with a variety of methods, involving filtering software. Users have also resorted to the courts, suing spammers under the “trespass to chattels” theory. Not all courts have agreed with this theory, as there is often little evidence of the owner’s use of their servers being adversely affected by a digital trespass. While the states were the first to address overwhelming amount of spam, Congress address the issue with the first nationwide anti-spam legislation, the CAN-SPAM Act. …
Parties' Defenses To Binding Arbitration Agreements In The Health Care Field & The Operation Of The Mccarran-Ferguson Act Comment., Elizabeth K. Stanley
Parties' Defenses To Binding Arbitration Agreements In The Health Care Field & The Operation Of The Mccarran-Ferguson Act Comment., Elizabeth K. Stanley
St. Mary's Law Journal
Arbitration is a process which allows parties voluntarily to refer their disputes to an impartial third person, an arbiter, selected by them to determine the parties’ rights and liabilities. Initially, arbitration was encouraged between corporate entities with equal bargaining power. But, due to federal policy favoring arbitration, the use of predispute arbitration agreements have increased dramatically, and such clauses can now be found in many noncommercial consumer contracts, especially those in the health care industry. The strong federal policy favoring arbitration originated with Congress’ passing of the Federal Arbitration Act (FAA). Under the FAA, an arbitration agreement is enforceable if …
Refocusing Light: Alex Sheshunoff Management Services, L.P. V. Johnson Moves Back To The Basics Of Covenants Not To Compete., Michael D. Paul, Ian C. Crawford
Refocusing Light: Alex Sheshunoff Management Services, L.P. V. Johnson Moves Back To The Basics Of Covenants Not To Compete., Michael D. Paul, Ian C. Crawford
St. Mary's Law Journal
The law regarding covenants not to compete is a product of the tension between competing rights, including the right of companies to protect trade secrets, market share, and corporate goodwill. Companies use non-compete covenants to deter competition from former employees and discourage employees from job hopping. A covenant not to compete is generally defined as a contractual provision in which one party agrees to refrain from conducting business similar to that of the other party. Courts generally enforce covenants concerning activities after the termination of employment if such covenants are “reasonable in scope, time, and territory.” The promise cannot be …
The Storm Between The Quiet: Tumult In The Texas Supreme Court, 1911-21., Michael S. Ariens
The Storm Between The Quiet: Tumult In The Texas Supreme Court, 1911-21., Michael S. Ariens
St. Mary's Law Journal
The Texas Supreme Court from 1911–1921 is best known not for the law it made or the opinions it wrote, but for its failure to decide cases. Although the supreme court’s difficulty in clearing its docket existed before 1911, the number of outstanding cases exploded during the second decade of the twentieth century. Arguably, the issue of statewide prohibition and the divergent views held on that issue by members of the Texas Supreme Court was the driving force behind the disharmony and dysfunctionality of the court during this decade. Statewide prohibition explains why elections of candidates to the court were …
Texas's Attempt To Mitigate The Risks Of Contracts For Deed - Too Much For Sellers - Too Little For Buyers Recent Development., Shelayne Clemmer
Texas's Attempt To Mitigate The Risks Of Contracts For Deed - Too Much For Sellers - Too Little For Buyers Recent Development., Shelayne Clemmer
St. Mary's Law Journal
Abstract Forthcoming.
Liability Insurance And Punitive Damages: Does Texas Public Policy Detest This Union Comment., Anthony H. Castillo
Liability Insurance And Punitive Damages: Does Texas Public Policy Detest This Union Comment., Anthony H. Castillo
St. Mary's Law Journal
There is a nationwide debate on whether punitive damages should be insurable. Insuring punitive damages causes courts concern regarding whether a wrongdoer escapes punishment by having the insurer pay for damages attributable to the wrongdoer’s egregious conduct. The United States Court of Appeals for the Fifth Circuit noted Texas’ public policy does not justify interference with private insurance contracts. The Court determined Texas allows liability insurance contracts to cover punitive damages and declared the inquiry ended. But, in the years since this determination, many Texas appellate courts have contracted the Fifth Circuit’s holding. The shifting discussion among Texas appellate courts …
Challenges And Guidance For Lawyering In A Global Society The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility: Foreword., Susan Saab Fortney
Challenges And Guidance For Lawyering In A Global Society The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility: Foreword., Susan Saab Fortney
St. Mary's Law Journal
Abstract Forthcoming.
Enforceability Of General Advance Waivers Of Conflicts Of Interest The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility., Nathan M. Crystal
Enforceability Of General Advance Waivers Of Conflicts Of Interest The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility., Nathan M. Crystal
St. Mary's Law Journal
Conflicts of interest among clients present some of the most pervasive ethical problems lawyers face. In many instances the affected clients may consent to a conflict. Under the ABA Model Rules of Professional Conduct, for consent to be effective, it must be “informed” and must be “confirmed in writing.” Informed consent to such conflict is often referred to as a “waiver” of the conflict. Many law firms have begun seeking “general advance waivers” of conflicts of interest. The ethical rules did not deal with the issue of advance waiver until 2002. Both Model Rules and the Restatement of the Law …
Recent Developments In Texas Legal Malpractice Law The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility., Kellie M. Hinson, Elizabeth A. Snyder
Recent Developments In Texas Legal Malpractice Law The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility., Kellie M. Hinson, Elizabeth A. Snyder
St. Mary's Law Journal
Abstract Forthcoming.
Brother's Keeper: The Legal Ethics Of Representing Family Members The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility: Comment., Jason W. Whitney
Brother's Keeper: The Legal Ethics Of Representing Family Members The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility: Comment., Jason W. Whitney
St. Mary's Law Journal
This Comment seeks to provide practical guidance in evaluating ethical issues for Texas attorneys considering representing a relative. Attorneys must always look to the relevant rules of professional conduct, advisory opinions, and case law to evaluate whether or not representation adheres to ethical guidelines. The primary sources of guidance are the Texas Disciplinary Rules of Professional Conduct (Texas Disciplinary Rules), advisory opinions from the Supreme Court of Texas Professional Ethics Committee (Texas Professional Ethics Committee), and Texas case law. Part II of this Comment discusses the history of professional responsibility, characteristics of representing family members, and common ethical problems arising …
Dean Robert William Piatt Dedication., N/A N/A
Dean Robert William Piatt Dedication., N/A N/A
St. Mary's Law Journal
Abstract Forthcoming.
Driving Down The Wrong Road: The Fifth Circuit's Definition Of Unauthorized Use Of A Motor Vehicle As A Crime Of Violence In The Immigration Context., Heather Harrison Volik
Driving Down The Wrong Road: The Fifth Circuit's Definition Of Unauthorized Use Of A Motor Vehicle As A Crime Of Violence In The Immigration Context., Heather Harrison Volik
St. Mary's Law Journal
Individuals who are not United States citizens and participate in violent or severe criminal activity are likely to be deported and become inadmissible for life. But noncitizens can also be deported for minor criminal activity which does not cause harm or serious damage. In such cases, deportation is an extreme punishment out of proportion to the offense. Unauthorized use of a motor vehicle (UUMV) is an example of a crime which can be committed without serious harm or damage. The Fifth Circuit regularly sustains decisions of lifetime reentry ban for noncitizens convicted of UUMV. Under immigration law, “aliens” who are …
What We Owe The World Are Thoughtful War-Crimes Trials That Do Justice Without Unduly Jeopardizing Innocent Lives By Compromising Vital Intelligence Comment., Sherry M. Barnash
What We Owe The World Are Thoughtful War-Crimes Trials That Do Justice Without Unduly Jeopardizing Innocent Lives By Compromising Vital Intelligence Comment., Sherry M. Barnash
St. Mary's Law Journal
In Hamdan v. Rumsfeld, the United States Supreme Court held the military commission convened to try accused terrorist Salim Ahmen Hamdan was unlawful. The Court concluded the Government could not lawfully proceed using established commission rules because the commission differed from courts-martial and did not follow certain aspects of the Geneva Convention. One procedure the Court found troubling was a provision in the Military Commission Order No. 1 which allowed the exclusion of the defendant and his civilian counsel from certain proceedings. Yet, denial of access was nothing new, as three decades prior Congress enacted the Classified Information Procedures Act …
The Evolving Standard For Granting Mandamus Relief In The Texas Supreme Court: One More Mile Market Down The Road Of No Return., Richard E. Flint
The Evolving Standard For Granting Mandamus Relief In The Texas Supreme Court: One More Mile Market Down The Road Of No Return., Richard E. Flint
St. Mary's Law Journal
The Prudential balancing test should be of concern for anyone interested in the rule of law. This test is the current binding precedent for determining when an appellate court should exercise its mandamus authority upon a finding of a clear abuse of discretion. This test has substantially altered one of the most time honored principles of mandamus jurisprudence, and replaced it with a newly articulated standard that leads to nothing short of ad hoc decision making. In the area of mandamus jurisprudence, the Texas Supreme Court has, from time to time, developed different ways to circumvent the common law history …
Threading The Eye Of The Erisa Needle: Erisa Preemption And Alternative Legal Schemes To Fill The Regulatory Vacuum., Bernard D. Reams Jr.
Threading The Eye Of The Erisa Needle: Erisa Preemption And Alternative Legal Schemes To Fill The Regulatory Vacuum., Bernard D. Reams Jr.
St. Mary's Law Journal
Popular consensus suggests that the Employee Retirement Income Security Act (“ERISA”) is a mess, and one of historic proportions. ERISA’s comprehensive reach to protect employer-provided benefits has in practice produced unintended, if not contradictory, results. Congress passed ERISA over thirty years ago to protect the rights of employees who benefit from employer pension and welfare benefit plans. It did so with a series of regulations that promote uniformity in litigation across the various states through “strong preemption language.” The goal of uniformity arguably benefits workers by imposing regular standards of conduct which lend predictability to the scope of litigation, or …
Microsoft Windows Vista: The Beginning Or The End Of End-User License Agreements As We Know Them Recent Development., Rebecca K. Lively
Microsoft Windows Vista: The Beginning Or The End Of End-User License Agreements As We Know Them Recent Development., Rebecca K. Lively
St. Mary's Law Journal
Microsoft Windows Vista’s widespread use and influence on the market represents an ideal case study on the enforceability, pitfalls, and future of the End-User License Agreement (EULA). Since the release of the Windows Vista operating system in early 2007, Microsoft consumers often do not realize they are entering into a contract with Microsoft when they install Windows Vista onto their computer. Microsoft consumers probably do not realize that they may be clicking away valuable rights. In analyzing the enforceability of the specific terms of the Windows Vista EULA, Washington law will be the primary source because the Windows Vista EULA …
The Trans-Texas Corridor Plan: Will Best Value Highway Contract Procurement Under Comprehensive Development Agreements Leave The Lowest Competitive Bidder In The Dust Comment., Jason C. Petty
St. Mary's Law Journal
Abstract Forthcoming.
Appellate Standards Of Conduct As Adopted In Texas The Fifth Annual Symposium On Legal Malpractice And Professional Responsibility: Essays., Catherine Stone
Appellate Standards Of Conduct As Adopted In Texas The Fifth Annual Symposium On Legal Malpractice And Professional Responsibility: Essays., Catherine Stone
St. Mary's Law Journal
It was not until 1987 that the State Bar of Texas created an Appellate Practice & Advocacy Section. As lawyers began concentrating on appellate law as a specialty, other practitioners began to realize that appellate practice requires a unique skill set. As recognition of this skill set grew, litigators began hiring these specialized lawyers to assist in preserving error at the trial level. Over the years, the need for a more professional approach to the practice of appellate law persisted until the “Standards of Appellate Conduct” (the Standards) was jointly adopted by the Texas Supreme Court and Texas Court of …
Attorneys Who Interpret For Their Clients: Communication, Conflict, And Confusion - How Texas Courts Have Placed Attorneys And Their L.E.P. Clients At The Discretion Of The Trial Court The Fifth Annual Symposium On Legal Malpractice And Professional Responsibility" Recent Development., Teresa B. Morales, Nathaniel D. Wong
Attorneys Who Interpret For Their Clients: Communication, Conflict, And Confusion - How Texas Courts Have Placed Attorneys And Their L.E.P. Clients At The Discretion Of The Trial Court The Fifth Annual Symposium On Legal Malpractice And Professional Responsibility" Recent Development., Teresa B. Morales, Nathaniel D. Wong
St. Mary's Law Journal
Abstract Forthcoming.
Getting The Sand Out Of The Eyes Of The Law: The Need For A Clear Rule For Sand Suppliers In Texas After Humble Sand & (And) Gravel, Inc. V. Gomez., Victor E. Schwartz, Mark A. Behrens, Andrew W. Crouse
Getting The Sand Out Of The Eyes Of The Law: The Need For A Clear Rule For Sand Suppliers In Texas After Humble Sand & (And) Gravel, Inc. V. Gomez., Victor E. Schwartz, Mark A. Behrens, Andrew W. Crouse
St. Mary's Law Journal
Health risks associated with the inhalation of silica dust have been known for a very long time. In the United States, the American Foundrymen’s Society has distributed literature addressing silica exposure hazards to its members for over 100 years. For years, litigation against industrial sand manufacturers concerning silica exposure was stable, though recently there has been a marked increase in the number lawsuits. While the number of suits continues to climb, the government reports silica-related deaths have declined dramatically. It appears plaintiffs’ attorneys are manufacturing silica claims using the same lawsuit-generating devices developed during the asbestos context. Tort law recognizes …
Life In The Early Days Of Lawyer Advertising: Personal Recollections Of A Bates Baby The Fifth Annual Symposium On Legal Malpractice And Professional Responsibility: Foreword., Gerald S. Reamey
St. Mary's Law Journal
Abstract Forthcoming.
Restricting Kelo: Will Redefining Blight In Senate Bill 7 Be The Light At The End Of The Tunnel., Adrianne Archer
Restricting Kelo: Will Redefining Blight In Senate Bill 7 Be The Light At The End Of The Tunnel., Adrianne Archer
St. Mary's Law Journal
In Kelo v. City of New London, the United States Supreme Court extended the public use limitation to its most expansive definition yet. The Kelo decision enhanced the Fifth Amendment takings power by allowing the city of New London, Connecticut, to exercise eminent domain power in furtherance of an economic development plan. Notably, the city’s revitalization plan did not include a claim that the area subject to eminent domain was “blighted.” The Fifth Amendment provides that governments may wield the power of eminent domain and take private property for public use but only with just compensation. Generally, private property can …
Sandbagging Closed Texas Courtrooms With Senate Bill 15: The Texas Legislature's Attempt To Control Frivolous Silicosis Claims Without Restricting The Constitutional Rights Of Silicosis Sufferers., John G. George
St. Mary's Law Journal
In the 1980s, Texas became a focal point for silicosis litigation. Statutes enacted to limit the liability of employers were not broad enough to limit the liability of silica sand suppliers. The increased number of claims are restricting the ability to receive compensation for those who truly deserve it. While the number of deaths has dropped dramatically, the number of claims has increased. Recently enacted Senate Bill 15 (S.B. 15) is the Texas Legislature’s answer to problems created by the large amount of frivolous silica-related claims. The goal of S.B. 15 is to protect the rights of those with silica …
Overcorrecting The Purported Problem Of Taking Child Brides In Polygamist Marriages: The Texas Legislature Unconstitutionally Voids All Marriages By Texans Younger Than Sixteen And Criminalizes Parental Consent., Rosanne Piatt
St. Mary's Law Journal
In the 79th Regular Legislative Session, Texas lawmakers amended and added numerous provisions to both the Texas Family Code and Texas Penal Code relating to the status of marriage. One change was the inclusion in the Family Code of a section voiding a marriage if either party is younger than sixteen years of age. Additionally, legislators included criminal penalties to other laws relating to marriage. Specifically, parents are prohibited from giving consent to the marriages of parties under sixteen, but parents also face third-degree felony charges if they give consent. The legislature voided certain underage marriages in Texas due to …