State and Local Government Law Commons^™

International Legal Malpractice: Not Only Will The Dog Eventually Bark, It Will Also Bite The Sixth Annual Symposium On Legal Malpractice And Professional Responsibility: Essay., Ethan S. Burger

St. Mary's Law Journal

The internationalization of legal practice presents numerous issues for lawyers, such as obtaining qualifications to practice law in foreign jurisdictions and developing the necessary knowledge. Different and possibly conflicting notions of standards of care and professional responsibility will arise. Globalization is widely regarded as the principal driving force in international economic and political relations. From the standpoint of business activity there are myriad ways to assess the impact of globalization. These include tracking rates of exchange, observing altered methods, or examining how attitudes and information has changed. Globalization has increased the demand for specialized accounting and legal services connected with …

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

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 …

Automatic Tolling Of The Voluntary Departure Period - A Circuit Split Recent Development., Katherine A. Tapley

St. Mary's Law Journal

Abstract Forthcoming.

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

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 …

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 …

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 …

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 …

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.

When Is Two A Crowd? The Impact Of Federal Action On State Environmental Regulation, Jonathan H. Adler

Faculty Publications

Despite the extensive scholarly literature assessing the proper role of federalism in environmental law, there has been relatively little analysis of why states adopt given environmental policies. There is even less consideration of how federal regulatory choices influence state environmental policy, and how a change in federal policy could influence states' willingness to adopt more environmental protections of their own. This Article seeks to address this gap by describing some of the factors that are likely to influence state environmental policy decisions and delineating how federal environmental policies can affect state policy choices. Specifically, this Article seeks to further the …

Chinks In The Armor: Municipal Authority To Enact Shoreline Permit Moratoria After Biggers V. City Of Bainbridge Island, Ryan M. Carson

Seattle University Law Review

Why would a relatively mundane dispute over what amounts to a few cubic yards of concrete warrant the extensive discussion encom passed in this Note? This dispute gives rise to a fundamental question about power: What is the scope of municipal power under one of Washington's most important environmental protection laws? Additionally, questions arise about competing normative values within environmental protection, property rights, and responsible land use and development. Placed against a backdrop of growing contentiousness surrounding these issues in Washington politics, the relevance and timeliness of these questions cannot be doubted.

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 …

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 …

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 …

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.

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Agenda: Climate Change And The Future Of The American West: Exploring The Legal And Policy Dimensions, University Of Colorado Boulder. Natural Resources Law Center

Climate Change and the Future of the American West: Exploring the Legal and Policy Dimensions (Summer Conference, June 7-9)

Sponsors: The William and Flora Hewlett Foundation; BP America; Holland & Hart; Patrick, Miller & Krope, P.C.; The Rocky Mountain Mineral Law Foundation, Rocky Mountain Natural Resource Center of the National Wildlife Federation, Western Water Assessment.

Exploring the legal and political dimensions that climate change will bring to the American West will be the focus of the CU-Boulder Natural Resources Law Center's 27th Annual Summer Conference.

Titled "Climate Change and the Future of the American West: Exploring the Legal and Policy Dimensions," the conference will be held June 7-9 at the Fleming Law Building on the University of Colorado at …

A Modern Disaster: Agricultural Land, Urban Growth, And The Need For A Federally Organized Comprehensive Land Use Planning Model, Jess M. Krannich

ExpressO

No abstract provided.

The Law Of Sprawl: A Road Map, Michael Lewyn

ExpressO

In the fall of 2004, I taught a seminar on “The Law of Sprawl” at Southern Illinois University (SIU) School of Law. This essay seeks to guide would-be teachers of a course on sprawl by showing how I taught the course.

Specifically, the article asserts that a seminar on sprawl belongs in law school curricula as well as planning school curricula, because a wide variety of legal rules contribute to sprawl. The article then goes on to discuss those legal rules and how I addressed them in my course. For example, the article discusses land use regulations that encourage automobile-dependent …

Hurricane Katrina And The Toxic Torts Implications Of Environmental Injustice In New Orleans, 40 J. Marshall L. Rev. 1 (2006), L. Darnell Weeden

UIC Law Review

No abstract provided.

Wood Measurement Rules, Maine Department Of Agriculture, Food & Rural Resources

Maine Collection

Wood Measurement Rules

Maine Department of Agriculture, Food & Rural Resources, Division of Quality Assurance & Regulations, Augusta, Maine, 2006.

Contents: Chapter 380: General Provisions / Chapter 381: General Requirements for Wood Transactions / Chapter 382: Measurement of Wood and Declaration of Quantity / Chapter 383: Measurement and Prompt Furnishing of Measurement Tally Sheets / Chapter 384: Complaints and Investigations / Chapter 385: Licensing of Wood Scalers / Appendix

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 …

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 …

Hurricane Katrina: The Duties And Responsibilities Of An Attorney In The Wake Of A Natural Disaster The Fifth Annual Symposium On Legal Malpractice And Professional Responsibility: Comment., Brenna G. Nava

St. Mary's Law Journal

Hurricane Katrina ravaged the legal system as well as the corporate world by leaving courtrooms and law firms filled with water. In the storm’s aftermath the luckiest law firms were those large enough to have offices in cities other than those directly affected by the hurricane. Many recent disasters have heavily affected the legal system, including flooded basements, office fires, hard drive crashes, terrorist attacks, tornados or earthquakes. And each new disaster brings different consequences. Those who create disaster plans are better equipped to handle and recover from each new series of setbacks. While various firms and courts made plans …

Exploring Disqualification Of Counsel In Texas: A Balancing Of Competing Interests The Fifth Annual Symposium On Legal Malpractice And Professional Responsibility., Rebecca Simmons, Manuel C. Maltos

St. Mary's Law Journal

Uncertainty over conduct which results in disqualification can be costly and the laws relating to disqualification may be widely known but their application is difficult. Rigid application of irrebuttable presumptions and imputation of knowledge may result in disqualification of a client’s chosen counsel. Even if an attorney succeeds in opposing a motion to disqualify, the resulting costs and delay may damage the attorney-client relationship more than if the attorney had simply declined the representation. Motions to disqualify usually arise from conflicts of interest involving former clients. The law of disqualification, in this instance, is well developed and largely based on …

Take The Money Or Run: The Risky Business Of Acting As Both Your Client's Lawyer And Bail Bondsman The Fifth Annual Symposium On Legal Malpractice And Professional Responsibility., Dayla S. Pepi, Donna D. Bloom

St. Mary's Law Journal

The American Bar Association strongly discourages lawyers from being bondsmen due to the conflicts that can arise when a criminal defense attorney acts as their client's bail bondsman. These same ethical dilemmas can also be encountered in posting a bond for a client in civil matters such as probate, family law, and appeals. In Texas, lawyers are exempt from the requirements of licensure as a bondsmen, including the requirement to maintain a particular level of security to underwrite the bonds. Nonetheless, lawyers are still required to conform to the requirements regulating the practice of bondsmen. It is not enough for …

The Law Of Mediation In Texas., L. Wayne Scott

St. Mary's Law Journal

Abstract Forthcoming.

A Simple Prescription For Texas's Ailing Court System: Stronger Stare Decisis., Andrew T. Solomon

St. Mary's Law Journal

Several Texas Supreme Court Justices have recently criticized Texas’s appellate justice system for its failure to provide consistency and the unfairness it produces, namely how litigants are treated differently despite the identical factual circumstances. Despite the warnings of various Texas Justices, neither the Texas Supreme Court nor the Texas Legislature have done much to rectify the lack of uniform justice received by Texas litigants. Most of the proposals to reform the Texas appellate justice systems’ unfairness have focused exclusively on structural changes. While structural changes could help reduce inconsistent “justice”, these reforms fail to address the main substantive problem—Texas’s weak …

The Unable To Agree Requirement And Texas Condemnation Law: A Critical Analysis Of Hubenak V. San Jacinto Gas Transmission Co.., B. Tyler Milton

St. Mary's Law Journal

In Texas, the state constitution requires adequate compensation as a predicate to a taking of private property for a public use. Though an eminent domain cause of action has both a constitutional and statutory basis, the requirement of adequate or just compensation is premised on principles of natural equity and justice. Texas statutorily mandates that a condemner of land must, prior to the institution of a condemnation proceeding, plead and prove the two parties were “unable to agree” on the corresponding compensation due to the landowner. Texas courts interpreted this requirement in the condemnation statute to compel “good faith negotiations” …