State and Local Government Law Commons^™

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” …

Reading, Writing, And Radicalism: The Limits On Government Control Over Private Schooling In An Age Of Terrorism., Avigael N. Cymrot

St. Mary's Law Journal

There are constitutional limitations that govern attempts to regulate the teaching of terrorism-encouraging ideologies. According to a 1999-2000 study by the National Center of Education Statistics, there are 152 full-time Islamic schools in the United States, schooling about 19,000 students. The primary concern is not that children will be instructed to immediately engage in terrorist acts, but that the teaching of a radical Islamist ideology will predispose them to join radical Islamist terrorist movements and engage in violence. The Free Exercise Clause and parental rights doctrine, however, might not by themselves bar the state from interfering in private education to …

Acquiring Separate Property On Credit: A Review And Proposed Revision Of Texas Marital Property Doctrine., James W. Paulsen

St. Mary's Law Journal

The character of property acquired on credit is one of the most vexing in Texas marital property law. The apparent black letter rule is that anything acquired by either spouse on credit during the marriage is community property, unless the creditor agrees at the outset to look only to separate property for repayment. The general rule follows naturally from a core principle of Texas law that everything owned by a married person is presumed community when the basic presumption is combined with the “inception of title” doctrine. In a credit transaction, the borrower acquires some legal right to the loan …

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 …

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 …

Conflicting Loyalties Facing In-House Counsel: Ethical Care And Feeding Of The Ravenous Multi-Headed Client The Fifth Annual Symposium On Legal Malpractice And Professional Responsibility., William E. Matthews, Robert M. Hoffman, Daniel C. Scott

St. Mary's Law Journal

Because of corporate scandals that shook the business world, legislative, corporate, and public fingers immediately pointed at corporate attorneys for allowing such egregious conduct to occur. In 1983, the American Bar Association (ABA) passed Model Rule 1.13, which promoted the entity theory. Under the entity theory, the organization is the in-house counsel’s only client; and the in-house counsel’s primary duty is to act in the best interest of the organization. Whether the issue is deciding to make an executive compensation disclosure in a proxy statement, taking on a dual role within the organization, acting in compliance with heightened professional responsibility …

A Radical Proposal For Lifetime Professionalism The Fifth Annual Symposium On Legal Malpractice And Professional Responsibility: Essays., Antonio Alvarado

St. Mary's Law Journal

Undeniably, the economics of law practice motivates the profession and immerses lawyers into a new professionalism paradigm not fully addressed by existing programs and activities. Linking professionalism to economic concerns might be considered heresy by some, yet now is the time to examine why the economic realities of practicing law sometimes cut short the best aspirations for high standards. Both the American Bar Association (ABA) and the State Bar of Texas focus extensively on questions concerning professionalism in the practice of law. Lawyers face significant economic burdens from several sources, and ironically technology does not always make practice easier. Often, …

Sentence Modification In Texas: The Plenary Power Of A Trial Court To Alter Its Sentence After Pronouncement Comment., Andrew L. Johnson

St. Mary's Law Journal

Post-sentence plenary power of a trial court is not statutorily defined in Texas criminal law, and its boundaries are not fully delineated. The Texas Court of Criminal Appeals recently added to the definition of plenary power in State v. Aguilera. The definition gives state trial courts the power to modify sentences if the modification is made the same day as the initial sentence before the court adjourns and if it is made in the presence of the defendant, his counsel, and counsel for the State. This holding lessens the sentencing pronouncement’s importance; potentially turning sentencing into a day-long affair. Additionally, …

Rehnquist, Innsbruck, And St. Mary's University Tribute., Vincent R. Johnson

St. Mary's Law Journal

William H. Rehnquist taught for St. Mary’s University School of Law for four summers while serving as the sixteenth Chief Justice of the United States. For two weeks each July in 1991, 1994, 1998, and 2000, Rehnquist lectured on The Supreme Court in United States History as part of the law school’s Institute on World Legal Problems in Innsbruck, Austria. St. Mary’s has conducted the Institute as an annual five-week summer program at the University of Innsbruck since 1986, with the generous administrative support of that university’s Roman Law Institute. Rehnquist felt welcome in Innsbruck and earned the St. Mary’s …

Standards Of Review In Texas., W. Wendell Hall

St. Mary's Law Journal

Abstract Forthcoming.

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.

Can A Private Corporate Analysis Of Public Authority Administration Lead To Democracy?, Jonathan Rosenbloom

NYLS Law Review

No abstract provided.

Imposing Geographical “Locateability” For Voice Over Internet Protocol, Andrea W.M. Louie

NYLS Law Review

No abstract provided.

People V. Lopez, Geoffrey Goell

NYLS Law Review

No abstract provided.

Religious Liberty And The Law, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

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.

Standefer V. State: The Creation Of The Criminal Defendant's Diminished Right To A Trial By A Fair And Impartial Jury., Esperanza Guzman

St. Mary's Law Journal

In Texas, the right of an accused to have an impartial jury is firmly grounded in the voir dire process, the definitive goal of which is to empanel a fair and impartial jury. The right to a fair and impartial jury is bolstered by the voir dire examination. There have been large discrepancies over the types of questions which can be asked during the voir dire process. The court’s attempt to simplify the process of differentiating between proper and improper voir dire questions has “muddied the issue” for court participants and has resulted in the deprivation of a criminal defendant’s …

2003 Texas House Bill 4: Unanimous Exemplary Damage Awards And Texas Civil Jury Instructions., Patricia F. Miller

St. Mary's Law Journal

Lawmakers and other supporters of tort reform generally describe enacted tort reform legislation as having a positive effect on consumers. But tort reform can create new hurdles for plaintiffs seeking damage awards in civil litigation. The Texas Legislature’s 2003 House Bill 4 (H.B. 4) amendment to the Texas Civil Practice and Remedies Code (Code) represents the most recent example of major tort reform in Texas. It has yet to be seen whether H.B. 4 will meet promised expectations. What is clear is H.B. 4 will adversely affect Texas plaintiffs seeking exemplary (punitive) damages from a jury. The H.B. 4 amendment …

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 …

Deterrence Versus Brutalization: Capital Punishment's Differing Impacts Among States, Joanna M. Shepherd

Michigan Law Review

Policymakers' false beliefs about capital punishment's universal deterrent effect may have caused many people to die needlessly. If deterrence is capital punishment's purpose then, in the majority of states where executions do not deter crime, executions kill convicts uselessly. Moreover, in the many states where the brutalization effect outweighs the deterrent effect, executions not only kill convicts needlessly but also induce the additional murders of many innocent people. After Part II discusses capital punishment's recent history in the United States, Part III reviews the conflict in recent studies on capital punishment and deterrence. Part IV explores differences in states' applications …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Do Institutions Really Matter? Assessing The Impact Of State Judicial Structures On Citizen Litigiousness, Jeff L. Yates, Paul Brace, Holley Tankersley

ExpressO

No abstract provided.

Shifts In Policy And Power: Calculating The Consequences Of Increased Prosecutorial Power And Reduced Judicial Authority In Post 9/11 America, Chris Mcneil

ExpressO

Among many responses to the attacks of September 11, 2001, Congress and the states have shifted to the executive branch certain powers once held by the judicial branch. This article considers the impact of transferring judicial powers to prosecutorial officers, and compares the consequent increased powers of the prosecutor with those powers traditionally held by prosecutors in Japanese criminal courts. It considers the impact of removing from public view and judicial oversight many prosecutorial functions, drawing comparisons between the largely opaque Japanese prosecutorial roles and those roles now assumed in immigration and anti-terrorism laws, noting the need for safeguards not …

7th Annual Open Government Summit: Access To Public Records Act & Open Meetings Act, 2005, Department Of Attorney General, State Of Rhode Island

School of Law Conferences, Lectures & Events

No abstract provided.

Out Of Bounds: San Francisco's Homeless Policies, Alexandra Flynn

ExpressO

Homelessness, both a legal and public policy issue, has dominated the City of San Francisco government agenda for over fifteen years. Despite the front-and-center nature of homelessness, the policies enacted have done little to reduce the count. This paper, first, presents San Francisco’s new approach to the issue; namely, the creation of a new and far more limited class of “chronically homeless” persons. This first section includes an examination of the causes of homelessness, the physical alienation of homeless persons through “quality of life” laws, and recent policy initiatives used to social exclude the bulk of homeless persons by limiting …

The North Korean Nuclear Crisis: Past Failures And Present Solutions, Morse Tan

ExpressO

North Korea has recently announced that it has developed nuclear weapons and has pulled out of the six-party talks. These events do not emerge out of a vacuum, and this article lends perspective based on an interdisciplinary lens that seeks to grapple with the complexities and provide constructive approaches based on this well-researched understanding. This article analyzes political, military, historical, legal and other angles of this international crisis.

Past dealings with North Korea have been unfruitful because other nations do not recognize the ties between North Korean acts and its ideology and objectives. For a satisfactory resolution to the current …

Internet Voting With Initiatives And Referendums: Stumbling Towards Direct Democracy, Rebekah K. Browder

Seattle University Law Review

Imagine that it is Tuesday, November 4, 2008, and you realize that you have not yet voted for the candidate that you want to be President of the United States. The polls close at 7 p.m., and it is already 6:45 p.m. Instead of rushing off to the nearest polling place, you simply go to your computer, log in, fill out a ballot, and email your ballot to your designated polling website. The whole process takes fewer than ten minutes, and you have done your civic duty. Leading proponents of Internet voting point to five possible benefits of electronic voting: …

American Courts Are Drowning In The "Gene Pool": Excavating The Slippery Slope Mechanisms Behind Judicial Endorsement Of Dna Databases, 39 J. Marshall L. Rev. 115 (2005), Meghan Riley

UIC Law Review

No abstract provided.

The Passage Of Community Property Laws, 1939-1947: Was "More Than Money" Involved?, Jennifer E. Sturiale

Michigan Journal of Gender & Law

Part I of this article reviews the legal landscape that provided the backdrop against which Michigan, Nebraska, Oklahoma, Oregon, and Pennsylvania later adopted community property laws. It also examines the tax consequences of the two Supreme Court cases, Lucas v. Earl and Poe v. Seaborn, that resulted in the disparate tax treatment of married couples in common law and community property law states. Part II briefly reviews the subsequent passage of community property laws by Michigan, Nebraska, Oklahoma, Oregon, and Pennsylvania; the passage of a federal tax reduction bill that provided for equal treatment of community property law and …

Competing Values Or False Choices: Coming To Consensus On The Election Reform Debate In Washington State And The Country, Tova Andrea Wang

Seattle University Law Review

This Article examines the problems revealed in Washington State's election system as a result of its staggeringly close gubernatorial election, and compares such problems to those encountered by other states in the 2004 election. It examines the challenge of fixing these problems through the prism of the ongoing debate over what values and goals are most important when making election administration decisions. The various values and goals of expanding voter access, increasing voter participation and election efficiency, preventing voter fraud, ensuring the count of every vote, and creating finality in the voting system are included in this examination. Throughout this …