Legal Ethics and Professional Responsibility Commons^™

Deceiving Law Students: Employment Statistics And Tort Liability., Angie Roberts-Huckaby

St. Mary's Law Journal

Abstract Forthcoming.

To A Professor: Douglas Haddock Retires., Charles Epps Ipock

St. Mary's Law Journal

Abstract Forthcoming.

New Oil And Old Laws: Problems In Allocation Of Production To Owners Of Non-Participating Royalty Interests In The Era Of Horizontal Drilling., Benjamin Holliday

St. Mary's Law Journal

Oil and gas exploration and production is not only a big business, it is also an expensive one. As with any business, when faced with competing alternatives, operators generally prefer to pursue exploration in areas with more stable and predictable legal environments. Efforts have previously been made to make Texas such an environment, but as technology advances, legal rules often become unclear in their application. The explosion in horizontal drilling activity is challenging the courts and the Texas Railroad Commission to apply and adapt traditional legal and regulatory concepts to horizontal wells. The growing dominance of horizontal well development is …

Plugging The School-To-Prison Pipeline By Improving Behavior And Protecting Core Judicial Functions: A Constitutional Crisis Looms., Patrick S. Metze

St. Mary's Law Journal

The consolidation of the Texas Youth Commission (TYC) and the Texas Juvenile Probation Commission (TJPC) into the Texas Juvenile Justice Department (TJJD) in 2011, produced a unified state juvenile justice agency to promote public safety first and to produce positive outcomes for youth, families, and communities second. As Professor Metze’s second paper discussing ways to effect a change in the School-to-Prison Pipeline, he first highlights the progress of TJJD’s use of Positive Behavioral Interventions and Supports (PBIS) in the Texas juvenile correctional context as continued evidence that such techniques, if effective in the correctional setting, will certainly work in the …

Texas Legislative Implications For Minors Accused Of Sexting., Mallory N. Myers

St. Mary's Law Journal

State legislation criminalizing sexting—the possession or electronic transmission of visual material capturing a minor engaged in sexual conduct—should not punish minors similarly to adults. The Adam Walsh Child Protection and Safety Act of 2006 (Walsh Act) in conjunction with the Sex Offender Registration & Notification Act (SORNA), require that any individual, including a minor, convicted of child pornography register as a sex offender. As a result, states with legislation that categorize sexting as child pornography, will require a minor with a sexting conviction to register as a sex offender. This disportionate punishment on the minor will make it difficult for …

Water Can Be For Drinking Again: Economic And Collaborative Solutions To A Texas Water Fight., Aaron Culp

St. Mary's Law Journal

Abstract Forthcoming.

The Co-Author Prenup., David A. Schlueter

St. Mary's Law Journal

Producing a book or article with co-authors is not an easy task. There are six potential issues one might consider before deciding to co-author a book or article. First, do you really want to be a co-author? Second, how many co-authors are going to be involved in the project? Having more than one co-author can make the departure of a co-author less of an issue, but each co-author needs to have a clearly defined role. Third, what role will each member of the team perform and what are those roles? Fourth, what should the co-author “marriage” look like? Multiple scenarios …

Secured Transaction History: Protecting Holmes' Notes Through The Conditional Sales Acts., George Lee Flint Jr.

St. Mary's Law Journal

The historical explanation for the adoption of the conditional sales acts is woefully lacking. How and why the first conditional sales acts arose are investigated. Grant Gilmore, when presenting his theory, confessed ignorance concerning the origins of the conditional sale transaction, first known as Holmes’ notes. The failure of traditional legal historians to explain the passage of the conditional sales acts encourages inquiry into their legislative history to find an explanation. Pre-Act American decisions provide clues regarding the ratification of the acts. The courts provided three explanations for their passage: to treat the conditional sale as a chattel mortgage, to …

The South Texas Drought And The Future Of Groundwater Use For Hydraulic Fracturing In The Eagle Ford Shale., Taelor A. Allen

St. Mary's Law Journal

Texas has undergone a succession of historic droughts, each one creating unique problems and controversies. The state is also one of the largest national producers of oil and gas with the Eagle Ford Shale fields contributing to the production boom. The technique used to extract the oil is called hydraulic fracturing, which requires large volumes of water to be injected at high pressures to “frac” and release gas from an underground formation. The amount of water required places even greater strain on the regional water supply. This Comment highlights legal issues raised by the high volumes of groundwater used for …

Reconciling Liberty And Equality In The Debate Over Preimplantation Genetic Diagnoses, Jessica Knouse

Utah Law Review

This Article draws on postmodern theory to develop a framework for analyzing situations in which liberty and equality appear to conflict. It uses the debate over nontherapeutic preimplantation genetic diagnosis as an example. Preimplantation genetic diagnosis is almost entirely unregulated within the United States, and there seems to be relative consensus that its use for therapeutic or medical trait selection—for example, selection against certain genetic and chromosomal disorders— should be permitted. There is substantial disagreement, however, as to whether its use for nontherapeutic or nonmedical trait selection— selection based on prospective parents’ preferences for a particular sex, eye color, hair …

Ethical Lawyering In A Global Community, Trevor C. W. Farrow

Articles & Book Chapters

No abstract provided.

The Solicitor General And Confession Of Error, Neal K. Katyal

Georgetown Law Faculty Publications and Other Works

Confessions of error have a long history. From the very beginning of the Solicitor General's position, we have had confessions of error.

All Solicitors General-it doesn't matter whether they are appointed by a Republican or a Democrat-have confessed error, roughly at the pace of two to three times per Supreme Court term.

Micro-Symposium On Orin Kerr's 'A Theory Of Law', Laura Appleman, Shawn Bayern, Adam D. Chandler, Robert Cheren, Miriam A. Cherry, Ross E. Davies, Lee Anne Fennell, Paul A. Gowder, Caitlin Hartsell, Kieran Healy, Robert A. James, Jeffrey H. Kahn, Orin S. Kerr, Jacob T. Levy, Jeffrey M. Lipshaw, Orly Lobel, Geoffrey A. Manne, Chad M. Oldfather, Ronak Patel, Jeffrey A. Pojanowski, Alexandra J. Roberts, Kent Scheidegger, Arthur Stock, Anders Walker

All Faculty Scholarship

For more than a century, careful readers of the Green Bag have known that “[t]here is nothing sacred in a theory of law...which has outlived its usefulness or which was radically wrong from the beginning...The question is What is the law and what is the true public policy?” Professor Orin Kerr bravely, creatively, and eloquently answered that question in his article, “A Theory of Law,” in the Autumn 2012 issue of the Green Bag. Uniquely among all theories of law that I know of, Kerr’s answer to the fundamental question of law and true public policy enables all scholars to …

Our Place In The World: A New Relationship For Environmental Ethics And Law, Jedediah S. Purdy

Faculty Scholarship

Forty years ago, at the birth of environmental law, both legal and philosophical luminaries assumed that the new field would be closely connected with environmental ethics. Instead, the two grew dramatically apart. This Article diagnoses that divorce and proposes a rapprochement. Environmental law has always grown through changes in public values; for this and other reasons, it cannot do so without ethics. Law and ethics are most relevant to each other when there are large open questions in environmental politics: lawmakers act only when some ethical clarity arises; but law can itself assist in that ethical development. This process is …

Regulating The Behavior Of Lawyers In Mass Individual Representations: A Call For Reform., Richard Zitrin

St. Mary's Journal on Legal Malpractice & Ethics

Cases in which lawyers represent large numbers of individual plaintiffs are increasingly common. While these cases have some of the indicia of class actions, they are not class actions, usually because there are no common damages, but rather individual representations on a mass scale. Current ethics rules do not provide adequate guidance for even the most ethical lawyers. The absence of sufficiently flexible, practical ethical rules has become an open invitation for less-ethical attorneys to abuse, often severely, the mass-representation problem. It is necessary to reform the current rules, but only with a solution that is both practical and attainable, …

The Litigation Privilege In Texas., Sam Johnson

St. Mary's Journal on Legal Malpractice & Ethics

Certain Texas cases have arisen where one party in litigation sues the attorney representing an opposing party. In response to such cases, Texas courts promulgated a judicial doctrine generally referred to as the litigation privilege or qualified immunity in order to protect litigants’ right to zealous representation from their attorney. The general rule is that one party to a lawsuit cannot sue the other party’s attorney. However, exceptions to this doctrine exist. This article explores the contours of the litigation privilege in Texas by analyzing the primary Texas cases where one party’s claim against the opposing party’s attorney was dismissed …

Introduction, Kathryn A. Stephens

St. Mary's Journal on Legal Malpractice & Ethics

Introduction

Guilt By Association: How “Standby Co-Counsel” Exposes Attorneys To Malicious Prosecution Liability., Colleen V. Lisowski

St. Mary's Journal on Legal Malpractice & Ethics

Attorneys should not assume that lending their name to a case is a risk-free practice. The California appellate decision, Cole v. Patricia A. Meyer & Associates, answered the question of whether non-participating, standby co-counsel could be held liable for malicious prosecution by merely being listed as counsel of record. Cole established the clear message behind being aware of “co-counsel” risks. According to the court, co-counsel cannot escape liability if they failed to know enough about the case. By rejecting the “passive counsel” defense, Cole held that associated attorneys still have a duty to research the validity of a case even …

Evidentiary Standards In The Legal Malpractice Trial-Within-A-Trial., F. Parks Brown

St. Mary's Journal on Legal Malpractice & Ethics

Like malpractice actions in general, the standards of proof required for each element of a legal malpractice claim evolved as legal malpractice claims became increasingly common. State and federal courts consequently produced a diverse range of opinions as jurisdictions continually adjust to evolving standards. The courts often seek to balance these standards of proof against their own precedent and the need to serve their particular notions of equity and justice. Perhaps the most contentious of these evolving standards of proof is the current state of the causation element, which is a critical test that must be satisfied to prevail in …

Bad Briefs, Bad Law, Bad Markets: Documenting The Poor Quality Of Plaintiffs' Briefs, Its Impact On The Law, And The Market Failure It Reflects, Scott A. Moss

Publications

For a major field, employment discrimination suffers surprisingly low-quality plaintiffs' lawyering. This Article details a study of several hundred summary judgment briefs, finding as follows: (1) the vast majority of plaintiffs' briefs omit available caselaw rebutting key defense arguments, many falling far below basic professional standards with incoherent writing or no meaningful research; (2) low-quality briefs lose at over double the rate of good briefs; and (3) bad briefs skew caselaw evolution, because even controlling for win-loss rate, bad plaintiffs' briefs far more often yield decisions crediting debatable defenses. These findings are puzzling. In a major legal service market, how …