Legal Remedies Commons^™

Dual Personas: Treating An Employer As A Third Party Under The Texas Workers’ Compensation Act, Brent A. Bauer

St. Mary's Law Journal

Abstract forthcoming.

Disposable Immigrants: The Reality Of Sexual Assault In Immigration Detention Centers, Valerie Gisel Zarate

St. Mary's Law Journal

Abstract forthcoming.

Everything Is Bigger In Texas: Including The Horrendously Inadequate Attempts At Providing Special Education And Related Services To All Children With Disabilities, Alexandria R. Booterbaugh

The Scholar: St. Mary's Law Review on Race and Social Justice

Without immediate action, the “corrections” made by the Texas legislature to meet the appropriateness requirement for special education will result in imminent peril for students with an autism spectrum disorder (ASD) as well as their parents. Tens of thousands of children fall between the cracks as a result of Texas’ illegalities and the lack of responsibility Texas’ lawmakers and Texas Education Agency (TEA) have for special education. If Texas does not fully devote itself to a significant overhaul of its special education practices, students will continue to be left behind.

Congress enacted the Individuals with Disabilities Education Act (IDEA) because …

America: The World’S Police—How The Defund The Police Movement Frames An Analysis For Defunding The Military, Anya Kreider

The Scholar: St. Mary's Law Review on Race and Social Justice

In this article, the author examines the tenets of the Defund the Police movement and applies them to the American military to make the argument that not only should the police be defunded, but so should the American military. The purpose of this piece is to push the conversation regarding policing beyond American borders to examine American influence internationally. The article incorporates various Critical Race Theories to explore the intersection of policing and the military. The Defund the Police Movement also provides a framework for critiquing the American military because the American police and military are inextricably connected. Part I …

Small Business Cybersecurity: A Loophole To Consumer Data, Matthew R. Espinosa

The Scholar: St. Mary's Law Review on Race and Social Justice

Small businesses and small minority owned businesses are vital to our nation’s economy; therefore legislation, regulation, and policy has been created in order to assist them in overcoming their economic stability issues and ensure they continue to serve the communities that rely on them. However, there is not a focus on regulating nor assisting small businesses to ensure their cybersecurity standards are up to par despite them increasingly becoming a victim of cyberattacks that yield high consequences. The external oversight and assistance is necessary for small businesses due to their lack of knowledge in implementing effective cybersecurity policies, the fiscal …

The Mother Of Exiles Is Abandoning Her Children: The Systemic Failure To Protect Unaccompanied Minors Arriving At Our Borders, Rosa M. Peterson

The Scholar: St. Mary's Law Review on Race and Social Justice

Unaccompanied minors arrive at the United States border every day. Many brought by the hope of finding a life lived without fear, a luxury many United States citizens take for granted. Their truths become the barriers and shackles which keep them in detention centers and unaccompanied minor facilities throughout the United States; children find their very words wielded as weapons against them in immigration court. Words often spoken to therapists in perceived confidence, during counseling sessions. This practice is a systemic failure to protect unaccompanied minors arriving at our borders who are seeking protection and help. The United States …

Identity Documents For Transgender Texans: A Proposal For A Uniform System For Correcting Gender Markers In Texas, Lydia R. Harris

The Scholar: St. Mary's Law Review on Race and Social Justice

Texas’s lack of a codified gender correction process is unjust, illegal, and against public policy. This comment highlights the injustice faced by transgender Texans without gender concordant identity documents. These injustices include discrimination based on gender stereotypes, violation of the transgender individual’s right to privacy, and violations of public policy. This comment explores possible solutions to the injustices faced by transgender Texans due to the lack of a codified uniform way to correct gender markers in Texas modeled on other jurisdictions’ approaches to this problem.

First, this comment traces the history of the recognition of transgender people and transgender rights …

Sexual Profiling & Blaqueer Furtivity: Blaqueers On The Run, T. Anansi Wilson

The Scholar: St. Mary's Law Review on Race and Social Justice

This article has taken some time to recollect. I have been struggling to find the grammar to communicate a phenomenon that is both central to BlaQueer life and beyond BlaQueer living. This difficulty, the silences, the gaps, the nonsensical and agrammatical nature of this phenomena—that of BlaQueer furtivity, the strict scrutiny of Black life and sexual profiling—are central features not only of this project but of the legal, extralegal and social logics and powers that mark, make and remake BlaQueer folks as always, already furtive, subject to strict scrutiny and necessarily sexual profiling. I have been struggling with whether to …

Memorandum Of Amici Curiae Doug Rendleman & Caprice Roberts In Support Of Plaintiff: Estate Of Henrietta Lacks V. Thermo Fisher Scientific, Doug Rendleman, Caprice Roberts

Scholarly Articles

This brief addresses the law of unjust enrichment and its relationship to restitution has failed to state a valid cause of action for restitution relief. Defendant incorrectly insists that plaintiff must plead a tort to seek restitution remedies as well as Both arguments belie the basic tenets of unjust enrichment law. Simply, plaintiff may seek restitution remedies based either a separate tort nor an allegation of the lack of bona fide purchaser status is required to survive these challenges.

How Judicial Accounting Law Fails Occupying Cotenants, Phil Rich

Northwestern Journal of Law & Social Policy

Few law students remember judicial accounting law from their property law course, and it’s hard to blame them. This little-discussed body of law is formulaic and rarely addressed by appellate courts. Judicial accounting law, however, should not be ignored. The law, which allocates equity to cotenants (or, more colloquially, co-owners) of residential property upon partition of that property, guides homeowners’ behavior and shifts wealth between them. This Note argues that state legislatures should reform judicial accounting law to better protect those cotenants living in their homes from partitions brought by cotenants living elsewhere.

The problem with judicial accounting law lies …

The Restitution Of Nazi-Looted Art In The United States: A Legal And Policy Analysis, Katharine J. Namon

Senior Theses and Projects

Restitution of Nazi-looted art in the United States is a complicated legal and policy issue. Victims and their heirs seeking restitution of their stolen art frequently encounter inconsistent legal standards at the state, federal, and international levels. Moreover, there are many different parties involved in these cases, including countries, museums, private collections, auction houses, heirs, and individuals who may have an interest in the particular work of art. Ethics must also be considered, and in the past, international principles for nations have been established to guide the process of delivering victims of wartime looting justice. Unfortunately, the current legal framework …

Enforcing Interstate Compacts In Federal Systems, Michael Osborn

Indiana Journal of Constitutional Design

The central goal of a federal system is for local government units to retain degrees of independence, specifically over matters of importance to that local unit. A logical corollary to that independence is the ability for local units to negotiate and contract with other local units on matters of importance. Therefore, it is not surprising that almost every federal system allows, either implicitly or explicitly, member states to form binding compacts with other states, the union government, or municipalities.1 Some federal democracies even allow member states to compact with foreign governments. Furthermore, almost every federal constitution includes a provision outlining …

Revisiting Remedies And The Legality-Merits Distinction In Singapore Administrative Law: Cbb V Law Society Of Singapore [2021] Sgca 6, Kenny Chng, Wen Qi Andrea Soon

Research Collection Yong Pung How School Of Law

It is a general principle of administrative law that the courts will not compel a decision-maker to perform a public duty in a particular manner by way of a mandatory order. Notably, in CBB v Law Society of Singapore [2021] SGCA 6, the Singapore Court of Appeal accepted that an exception could be made to this general principle where there was only one reasonable way to perform the public duty in question. Beyond the decision’s obvious ramifications for the law relating to public law remedies in Singapore, this note argues that the Court of Appeal’s reasoning bears significant implications for …

State Spoliation Claims In Federal District Courts, Jeffrey A. Parness

Catholic University Law Review

The increasing amounts of electronically stored information (ESI) relevant to civil litigation, and the ease of their loss, caused federal lawmakers explicitly to address the possible consequences of certain pre-suit or post-suit ESI losses. These lawmakers acted in both 2006 and 2015 through Federal Civil Procedure (FRCP) 37(e). But they acted only on certain ESI. Their actions have prompted increasing attention to the significant risks of pre-suit and post-suit losses of all ESI, and of non-ESI, otherwise discoverable in civil actions. In addition, their actions have spurred increasing attention to the availability of substantive law claims involving spoliation of information …

Nonparty Interests In Contract Law, Omri Ben-Shahar, David A. Hoffman, Cathy Hwang

All Faculty Scholarship

Contract law has one overarching goal: to advance the legitimate interests of the contracting parties. For the most part, scholars, judges, and parties embrace this party primacy norm, recognizing only a few exceptions, such as mandatory rules that bar enforcement of agreements that harm others. This Article describes a distinct species of previously unnoticed contract law rules that advance nonparty interests, which it calls “nonparty defaults."

In doing so, this Article makes three contributions to the contract law literature. First, it identifies nonparty defaults as a judicial technique. It shows how courts deviate from the party primary norm with surprising …

Will The Real Mens Rea Please Stand Up: Assessing The Fifth Circuit’S Kickback Jurisprudence After United States V. Nora, John J. Locurto

St. Mary's Law Journal

Many criminal statutes require willful misconduct, yet willfulness remains an elusive concept. Its meaning and application depend as much on the outcome a court desires as the definition or legal standard a court claims to apply. Ambiguity in the required mens rea is an age-old problem with a venerable pedigree in the circuits and Supreme Court. This article considers anew the struggle to define “willfully” as that term is used in the Anti-Kickback Statute (AKS), 42 U.S.C. § 1320a-7b, one of the federal government’s key weapons against health care fraud.

When it decided United States v. Nora and reversed the …

The Aoc In The Age Of Covid—Pandemic Preparedness Planning In The Federal Courts, Zoe Niesel

St. Mary's Law Journal

The 2020 COVID-19 pandemic created a crisis for American society—and the federal courts were not exempt. Court facilities came to a grinding halt, cases were postponed, and judiciary employees adopted work-from-home practices. Having court operations impacted by a pandemic was not a new phenomenon, but the size, scope, and technological lift of the COVID-19 pandemic was certainly unique.

Against this background, this Article examines the history and future of pandemic preparedness planning in the federal court system and seeks to capture some of the lessons learned from initial federal court transitions to pandemic operations in 2020. The Article begins by …

Misreading Menetti: The Case Does Not Help You Avoid Liability For Your Own Fraud, Val D. Ricks

St. Mary's Law Journal

Several decades ago, an incorrect legal idea surfaced in Texas jurisprudence: that business entity actors are immune from liability for fraud that they themselves commit, as if the entity is solely responsible. Though the Supreme Court of Texas has rejected that result several times, it keeps coming back. The most recent manifestation is as a construction of Texas’s unique veil-piercing statute. Many lawyers have suggested that this view of the veil-piercing statute originated in Menetti v. Chavers, a San Antonio Court of Appeals case decided in 1998. Menetti has in fact played a prominent role in the movement to …

Answering The Call: A History Of The Emergency Power Doctrine In Texas And The United States, P. Elise Mclaren

St. Mary's Law Journal

During times of emergency, national and local government may be allowed to take otherwise impermissible action in the interest of health, safety, or national security. The prerequisites and limits to this power, however, are altogether unknown. Like the crises they aim to deflect, courts’ modern emergency power doctrines range from outright denial of any power of constitutional circumvention to their flagrant use. Concededly, courts’ approval of emergency powers has provided national and local government opportunities to quickly respond to emergency without pause for constituency approval, but how can one be sure the availability of autocratic power will not be abused? …

Judicial Federalism And The Appropriate Role Of The State Supreme Courts: A 20-Year (2000–2020) Study Of These Courts’ Interest Evaluations Of The Fruits And The Attenuation Doctrines, Dannye R. Holley Mr.

St. Mary's Law Journal

The current composition of the United States Supreme Court increases the probability that the Court will be more likely to side with the government with respect to identifying, evaluating, and reconciling the interest of the government versus those of the people when issues of “policing” reach the high court. This opens the door for state supreme court to independently assess individually and collectively these seemingly competing interests and potentially provide greater protections to the interest of the people.

This Article is a twenty-year study of dozens of state supreme court decisions made during the period of 2000–2020. The decisions focused …