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Articles 691 - 720 of 1939

Full-Text Articles in State and Local Government Law

Virginia's War On Women: How Forcing Women To Have An Ultrasound Before Abortion Is Unconstitutional, Alison B. Linas Jan 2012

Virginia's War On Women: How Forcing Women To Have An Ultrasound Before Abortion Is Unconstitutional, Alison B. Linas

Richmond Public Interest Law Review

This comment will discuss how the ultrasound bill, like similar ones in other states, is unconstitutional for two reasons. First, requiring a woman to undergo a medically unnecessary procedure at her own expense is an undue burden under Planned Parenthood v. Casey. Second, the Supreme Court has held that competent people have the right to refuse medical care. By requiring a woman to have an ultrasound, the State is depriving her of her constitutional right to refuse care. Part 11 of this comment will focus on the Supreme Court's role in shaping abortion policy. Part II(A) concerns the history of …

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Dispatch From The Culture War: Virginia's Failed Hpv Vaccination Mandate, Rachel Reynolds Jan 2012

Dispatch From The Culture War: Virginia's Failed Hpv Vaccination Mandate, Rachel Reynolds

Richmond Public Interest Law Review

coverage seems to have become overshadowed. This paper will inquire into what makes Gardasil different from other vaccines, and how that impacts its administration. Part I will describe the specifics of the HPV vaccine: how it works and how Virginia decided to promote its usage. Part II will examine the ways in which jurisdictions have traditionally understood vaccination policy, and contrast it with the ways in which they have handled the HPV vaccine. Part III will examine the disadvantages of continuing the mandate's ineffective political war of attrition, and suggest a coalition-building strategy to effect policy that honors communal values …

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A Custom Fit: Tailoring Texas Civil Jury Selection Procedures To Case Tiers., Jarod S. Gonzalez Jan 2012

A Custom Fit: Tailoring Texas Civil Jury Selection Procedures To Case Tiers., Jarod S. Gonzalez

St. Mary's Law Journal

Citizens serving on a civil jury are entrusted with making factual decisions about disputes that impact legal rights and remedies of litigants and set standards for the behavior of the public. Unfortunately, civil jury trials take place less frequently in twenty-first century Texas than in prior eras. Part of the justice system’s rejuvenation should involve a re-evaluation and improvement of the current process for selecting civil juries. Currently, the primary flaw in Texas jury selection procedures is the one-size-fits-all approach. Because some cases need twelve impartial jurors who are lay persons, and others require twelve people who are knowledgeable of …

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Expanding Protective Order Coverage., Kellie K. Player Jan 2012

Expanding Protective Order Coverage., Kellie K. Player

St. Mary's Law Journal

The Texas legislature should eliminate the relationship requirement for a protective order. Although the Texas legislature passed the Kristy Appleby Act, which expanded the definition of dating violence, some victims of domestic violence may still be unable to qualify for a protective order. Specifically, some third-party individuals in a love triangle may not be eligible to receive a protective order. In Texas, a potential or current victim of domestic abuse needs to demonstrate a relationship with the perpetrator. Despite the broadened definition of relationship, some potential victims may still be unable to meet this burden. If the person cannot, they …

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The Double Irish Sandwich: Reforming Overseas Tax Havens., Stephen C. Loomis Jan 2012

The Double Irish Sandwich: Reforming Overseas Tax Havens., Stephen C. Loomis

St. Mary's Law Journal

Abstract Forthcoming.

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Reproductive Freedom And Virginia's 2012 General Assembly Session, Katherine Greenier Jan 2012

Reproductive Freedom And Virginia's 2012 General Assembly Session, Katherine Greenier

Richmond Journal of Law and the Public Interest

While the Governor approved H.B. 462, the mandatory ultrasound bill, H.B. 62, H.B. 1285, and S.B. 637 failed in the General Assembly.37 As introduced this 2012 session, H.B. 1 contained different bill language than the prior years it has been introduced. H.B. 62, H.B. 1285, and S.B. 637 were new bills, not seen in past years. An analysis and overview of these measures sheds light on the increasing attempts and the tactics used by legislators to undermine reproductive freedom.

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Will Contests: From Start To Finish., Joyce Moore Jan 2012

Will Contests: From Start To Finish., Joyce Moore

St. Mary's Law Journal

This Article primarily focuses on the practical problems facing attorneys and courts when evaluating and proving up a will or trust in contested cases. The focus extends further into the special procedural and evidentiary rules applicable to these actions, the use and misuse of summary judgment proceedings in these cases, and some observations regarding developing trends and strategies in will and trust contest litigation. Admittedly, this area of practice is a melting pot of presumptions, exceptions, threshold hurdles, capacity qualms, evidentiary issues, strategic clauses, and countless other headache-inducing legal issues. Yet, attorneys must diligently juggle all of them while also …

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Due Process And Local Administrative Hearings Regulating Public Nuisances: Analysis And Reform., Alex Cameron Jan 2012

Due Process And Local Administrative Hearings Regulating Public Nuisances: Analysis And Reform., Alex Cameron

St. Mary's Law Journal

Abstract Forthcoming.

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A Judicial And Economic Analysis Of Attorney's Fees In Trust Litigation And The Resulting Inequitable Treatment Of Trust Beneficiaries., Charles Epps Ipock Jan 2012

A Judicial And Economic Analysis Of Attorney's Fees In Trust Litigation And The Resulting Inequitable Treatment Of Trust Beneficiaries., Charles Epps Ipock

St. Mary's Law Journal

Abstract Forthcoming.

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Removal Of Independent Executors: Examining The Standard In Texas After The Addition Of Material Conflict Of Interest To Section 149c Of The Texas Probate Code., Elizabeth R. Kopecki Jan 2012

Removal Of Independent Executors: Examining The Standard In Texas After The Addition Of Material Conflict Of Interest To Section 149c Of The Texas Probate Code., Elizabeth R. Kopecki

St. Mary's Law Journal

The State of Texas permits independent executors to operate with minimal court supervision. This allows executors to administer an estate with as little cost and delay as possible. Sometimes executors abuse this limited supervision and fail to manage estates properly. Fortunately, there are particular circumstances outlined in the Texas Probate Code which allow courts to step in and remove these harmful executors. Since the adoption of section 149C to the Texas Probate Code, grounds for removal have remained relatively specific. Recently, the legislature has added a new ground: “material conflict of interest.” Though no bright-line rule exists, there is precedent …

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Brand New Law! The Need To Market Health Care Reform, William M. Sage Jun 2011

Brand New Law! The Need To Market Health Care Reform, William M. Sage

Faculty Scholarship

The most serious problem with the Patient Protection and Affordable Care Act (ACA) is not its contents but its packaging. Because it requires significant departures from business as usual in health insurance, health care delivery, and health behavior, the ACA is unlikely to succeed unless Americans feel a shared stake in its success. Unfortunately, the new law has been branded only by its opponents. Neither the Obama administration nor its congressional allies have effectively communicated the law’s key elements to the public. Most surprisingly, the groundbreaking program of near-universal health coverage the ACA creates does not even have a name. …

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The Positive Case For Centralization In Health Care Regulation: The Federalism Failures Of The Aca, Abigail R. Moncrieff, Eric Lee Apr 2011

The Positive Case For Centralization In Health Care Regulation: The Federalism Failures Of The Aca, Abigail R. Moncrieff, Eric Lee

Law Faculty Articles and Essays

Although the ACA accomplishes significantly greater centralization of authority for healthcare regulation, it falls far short of the full centralization that seems functionally justified. There is no doubt that the states have played an important role in healthcare regulation throughout the nation's history, but that role is becoming increasingly irrelevant as healthcare regulation becomes increasingly technocratic—i.e., increasingly objectivist and data-driven. The ACA is a step in the right direction, but the U.S. should further centralize authority over healthcare.

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Cooperation, Commandeering, Or Crowding Out?: Federal Intervention And State Choices In Health Care Policy, Jonathan H. Adler Apr 2011

Cooperation, Commandeering, Or Crowding Out?: Federal Intervention And State Choices In Health Care Policy, Jonathan H. Adler

Faculty Publications

This Article's analysis proceeds in three parts. Part II of this article outlines the policy considerations in determining the proper federal and state balance in health care policy. There are strong arguments for state primacy in health care policy, but also substantial justifications for federal intervention. Part III discusses the concept of "cooperative federalism," under which the federal government encourages state governments to implement policies in accord with federal priorities, and identifies constitutional limitations on the federal government's ability to direct or even influence state policy choices. Even if the constitutional challenges to the individual mandate fails, federalism-based challenges to …

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Health Care Reform In Virginia: Lessons Learned Before, During, And After The 2011 Virginia General Assembly, Hunter W. Jamerson Jan 2011

Health Care Reform In Virginia: Lessons Learned Before, During, And After The 2011 Virginia General Assembly, Hunter W. Jamerson

Richmond Journal of Law and the Public Interest

This article surveys Virginia's initial foray into health care reform. This process began with the Virginia Health Reform Initiative, which had a significant presence in the Virginia 2011 General Assembly session. While the nascent health care reform efforts this session reflect only incremental steps, they are indicative of Virginia's direction and commitment to change. Such change, however, will carry great political and professional strife. This article highlights some examples of the challenges faced on the road to health care reform and discusses possible directions of future legislation in the Virginia General Assembly.

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Issues Concerning Charges For Driving While Intoxicated In Texas Federal Courts., Brian L. Owsley Jan 2011

Issues Concerning Charges For Driving While Intoxicated In Texas Federal Courts., Brian L. Owsley

St. Mary's Law Journal

Each year numerous defendants appear in courts located in Texas, both state and federal, charged with offenses related to driving while intoxicated (DWI). Defendants appearing before state courts are prosecuted pursuant to Texas statutes, regulations, and binding case law. In certain circumstances, defendants appearing in federal courts face the same statutory elements of a crime and the same potential penalties as in a Texas state court. In many of the cases, however, statutory elements and potential penalties differ. Furthermore, certain rights and regulations afforded to Texas state defendants are unavailable to those charged in federal courts located in the state. …

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Home Sweet Homestead - Not If You Are Subject To A Mandatory Homeowners' Association., Bridget M. Fuselier Jan 2011

Home Sweet Homestead - Not If You Are Subject To A Mandatory Homeowners' Association., Bridget M. Fuselier

St. Mary's Law Journal

Changes must be made to current Texas laws to strike a proper balance between the homeowners’ rights and the homeowners association’s (HOA) rights. The Texas Supreme Court’s decision in Inwood North Homeowners’ Ass’n v. Harris allows liens to attach to what would otherwise be considered homestead-protected property. Although the promise in Inwood was set forth in writing, touched and concerned the land, was intended to run with the land, and was properly recorded, that did not create a contractual lien. The court, however, incorrectly combined the concepts of liens and covenants. Furthermore, the court seemed to ignore the important and …

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What Happened: Confronting Confrontation In The Wake Of Bullcoming, Bryant, And Crawford., Dibrell Waldrip, Sara M. Berkeley Jan 2011

What Happened: Confronting Confrontation In The Wake Of Bullcoming, Bryant, And Crawford., Dibrell Waldrip, Sara M. Berkeley

St. Mary's Law Journal

Crawford v. Washington and its progeny demonstrate the difficulty of delineating both the core and the perimeter of the Confrontation Clause. Crawford abrogated Ohio v. Roberts, forcing trial lawyers to re-evaluate the use of various types of hearsay formerly admitted upon a finding of adequate “indicia of reliability.” Later the Court issued two decisions further altering the contours of Confrontation Clause jurisprudence. Michigan v. Bryant and Bullcoming v. New Mexico. With these options, the old Roberts “indicia of reliability” test transformed into the new “primary purpose” test to identify certain testimonial statements. By significantly altering the contours of Confrontation Clause …

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Limiting The Foreclosure Power Of Texas Hoas With A Percentage Threshold Comment., Laci Ehlers Jan 2011

Limiting The Foreclosure Power Of Texas Hoas With A Percentage Threshold Comment., Laci Ehlers

St. Mary's Law Journal

Abstract Forthcoming.

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A Shift In Power: Why Increased Urban Drilling Necessitates A Change In Regulatory Authority Comment., Riley W. Vanham Jan 2011

A Shift In Power: Why Increased Urban Drilling Necessitates A Change In Regulatory Authority Comment., Riley W. Vanham

St. Mary's Law Journal

Historically, Texas has boasted a very lucrative oil and gas industry, which has been vital to the state’s successful economy. Due to increased drilling in urban areas, particularly the Barnett Shale, the number of affected surface owners multiplied overnight, attracting attention to oil and gas issues. Legislation has been purported to remedy the longtime conflict in Texas property law caused by the dominance of the mineral estate over the surface estate. But no bill has passed having major policy-change implications. Currently, local governments freely adopt and enforce oil and gas regulations. These ordinances vary from city-to-city, creating inconsistencies for operators …

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Health Care Reform In Virginia: Lessons Learned Before, During, And After The 2011 Virginia General Assembly, Hunter W. Jamerson Jan 2011

Health Care Reform In Virginia: Lessons Learned Before, During, And After The 2011 Virginia General Assembly, Hunter W. Jamerson

Richmond Public Interest Law Review

This article surveys Virginia's initial foray into health care reform. This process began with the Virginia Health Reform Initiative, which had a significant presence in the Virginia 2011 General Assembly session. While the nascent health care reform efforts this session reflect only incremental steps, they are indicative of Virginia's direction and commitment to change. Such change, however, will carry great political and professional strife. This article highlights some examples of the challenges faced on the road to health care reform and discusses possible directions of future legislation in the Virginia General Assembly.

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The Constitutionality Of Collateral Post-Conviction Claims Of Actual Innocence Comment., Craig M. Jacobs Jan 2011

The Constitutionality Of Collateral Post-Conviction Claims Of Actual Innocence Comment., Craig M. Jacobs

St. Mary's Law Journal

The notion that the state can punish innocent people disrupts public confidence in the usefulness of the criminal justice system. If, by legislative design, the criminal justice system is not concerned with or is accepting of situations where innocent people are punished by the state, should courts take immediate action? Once criminal defendants exhaust the appellate process, Supreme Court Justices have stated, federal courts should not hear claims of actual innocence. Such statements are supported by the federal habeas corpus statute as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). AEDPA requires federal habeas courts to …

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Respecting The Concept And Limited Liability Of A Series Llc In Texas Comment., Bernie R. Kray Jan 2011

Respecting The Concept And Limited Liability Of A Series Llc In Texas Comment., Bernie R. Kray

St. Mary's Law Journal

The primary advantage of a limited liability company (LLC) is to shield owners from personal liability for the contract and tort obligations of their business entities. To further protect business assets, practitioners often advised clients to form multiple LLCs, each containing single assets. Yet, business owners managing multiple assets and LLCs often found this approach ineffective and cost-prohibitive. Allowing for a single “master” LLC to compartmentalize different series of properties without the need for a distinct holding company, the “series” LLC was the next step. The series LLC permits companies to partition assets and liabilities among various cells or “series,” …

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A Primer On Batson, Including Discussion Of Johnson V. California, Miller-El V. Dretke, Rice V. Collins, & Synder V. Louisiana., Mikal C. Watts, Emily C. Jeffcott Jan 2011

A Primer On Batson, Including Discussion Of Johnson V. California, Miller-El V. Dretke, Rice V. Collins, & Synder V. Louisiana., Mikal C. Watts, Emily C. Jeffcott

St. Mary's Law Journal

Fundamental to the existence of the rights guaranteed to every citizen is the assurance that the right to equal protection under the law will be defended at all costs. Key to the United States’ system of adjudication is the right to a trial by jury, which is embodied in the Sixth and Seventh Amendments to the Constitution. These rights are also incorporated into all state constitutions through the Fourteenth Amendment. During jury selection, the judicial system permits the elimination of a certain number of jurors without cause. This form of elimination is known as a peremptory challenge. Over time, however, …

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Texas Civil Practice & Remedies Code Sec. 41.0105: A Time For Clarification Comment., April Y. Quinones Jan 2011

Texas Civil Practice & Remedies Code Sec. 41.0105: A Time For Clarification Comment., April Y. Quinones

St. Mary's Law Journal

The language of the Texas Civil Practice and Remedies Code § 41.0105 is by no means clear. Most Texas practitioners refer to it as the “paid-or-incurred statute.” This is due to the statue stating that recovery of medical or health care expenses are limited to the amount actually paid or incurred by or on behalf of the claimant. Yet, Texas trial lawyers and judges are perplexed by what the statute truly means. Causing further concern, most Texas practitioners do not appear to understand how the statute should be applied. At the center of the debate lies the collateral-source rule and …

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Congress's Consistent Intent To Utilize Military Commissions In The War Against Al-Qaeda And Its Adoption Of Commission Rules That Fully Comply With Due Process., Michael T. Mccaul, Ronald J. Sievert Jan 2011

Congress's Consistent Intent To Utilize Military Commissions In The War Against Al-Qaeda And Its Adoption Of Commission Rules That Fully Comply With Due Process., Michael T. Mccaul, Ronald J. Sievert

St. Mary's Law Journal

Congress responded to the terrorist attack of September 11, 2001 by passing the Authorization for the Use of Military Force (AUMF). In the following years Congress augmented that authority with the Military Commissions Act of 2006 (MCA of 2006) and the Military Commissions Act of 2009 (MCA of 2009). In passing these acts, Congress responded to the Supreme Court’s decision in Hamdan v. Rumsfeld, which found that President Bush’s attempt to establish military commissions required Congressional authorization. When drafting both MCAs, Congress recognized numerous evidentiary and trial procedures from federal civilian court were inappropriate for trying unlawful combatants. By these …

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Honest Services Fraud After Skilling., Pamela Mathy Jan 2011

Honest Services Fraud After Skilling., Pamela Mathy

St. Mary's Law Journal

The United States Supreme Court ruling in Skilling v. United States limits honest services fraud prosecutions of both public officials and private individuals to schemes involving bribes or kickbacks. Over the past two decades, federal prosecutors have used the federal mail and wire fraud statutes to reach schemes which deprive citizens of their money or property and of the intangible right to honest services. The Court’s ruling in Skilling removes a category of deceptive, fraudulent, and corrupt conduct from the scope of the honest services law. By limiting honest services fraud under the statute to bribes and kickbacks, the Court …

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Admitting Light Detection And Ranging (Lidar) Evidence In Texas: A Call For Statewide Judicial Notice., Ryan V. Cox, Carl Fors Jan 2011

Admitting Light Detection And Ranging (Lidar) Evidence In Texas: A Call For Statewide Judicial Notice., Ryan V. Cox, Carl Fors

St. Mary's Law Journal

The reliability of LIDAR (Light Detection and Ranging) is generally questioned for one of two reasons. First, when the speeding charge is of such great importance to the defendant that he must challenge the technology. Second, when the defendant is charged with a different and more serious crime because of the traffic stop. In this instance the reliability of the equipment provides the opportunity to question the stops’ underlying probable cause. Assuming the particular jurisdiction has not settled the issue of reliability of LIDAR evidence, the court must require the prosecutor to present expert testimony to show reliability. In the …

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A Synopsis Of Texas And Federal Sovereign Immunity Principles: Are Recent Sovereign Immunity Decisions Protecting Wrongful Governmental Conduct., Marilyn Phelan Jan 2011

A Synopsis Of Texas And Federal Sovereign Immunity Principles: Are Recent Sovereign Immunity Decisions Protecting Wrongful Governmental Conduct., Marilyn Phelan

St. Mary's Law Journal

The Texas Supreme Court recently rendered several decisions involving governmental entities reflecting the court’s inflexible application of the doctrine of sovereign immunity. These decisions raise concerns that the Court may be insulating government employees from adherence to ethical codes of conduct. Just as Congress enacted legislation requiring accuracy and reliability from financial officers of corporations, there exists a similar need for Texas courts to protect the public from governmental harm through misconduct. The current awareness of governmental officials lessens the likelihood of governmental transparency and accountability. This Article analyzes the Court’s current application of the sovereign immunity doctrine to provide …

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A Capital Gains Anomaly: Commissioner V. Banks And The Proceeds From Lawsuits., Stephen T. Black, Katherine D. Black, Michael D. Black Jan 2011

A Capital Gains Anomaly: Commissioner V. Banks And The Proceeds From Lawsuits., Stephen T. Black, Katherine D. Black, Michael D. Black

St. Mary's Law Journal

When a litigant receives an award of damages or agrees to a settlement of a lawsuit for which the litigant and her attorney have agreed to a contingent fee, a portion of those damages or the settlement is paid to the attorney. For income tax purposes, there is a question of whether the litigant should include the portion paid to her attorney as her own income. The question is not merely academic. In a tax system that does not always allow the litigant to deduct her attorney's fees, the litigant may end up paying tax on money that she never …

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The Supreme Court’S Assault On Litigation: Why (And How) It Could Be Good For Health Law, Abigail R. Moncrieff Dec 2010

The Supreme Court’S Assault On Litigation: Why (And How) It Could Be Good For Health Law, Abigail R. Moncrieff

Law Faculty Articles and Essays

In recent years, the Supreme Court has narrowed or eliminated private rights of action in many legal regimes, much to the chagrin of the legal academy. That trend, although certainly not limited to health law, has had a significant impact on the field; the Court's decisions have eliminated the private enforcement mechanism for at least three important healthcare regimes: Medicaid, employer-sponsored insurance, and medical devices. In a similar trend outside the courts, state legislatures have capped non-economic and punitive damages for medical malpractice litigation, weakening the tort system's deterrent capacity in those states. This Article suggests that the trend of …

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