More D (Deliberation) For California’S Dd (Direct Democracy): Enhancing Voter Understanding And Promoting Deliberation Through Streamlined Notice-And-Comment Procedures,
2011
California Western School of Law
More D (Deliberation) For California’S Dd (Direct Democracy): Enhancing Voter Understanding And Promoting Deliberation Through Streamlined Notice-And-Comment Procedures, Glenn Smith
Faculty Scholarship
This article seeks to enhance public consideration of the pros and cons of streamlining California's informal-administrative-rulemaking procedures for reforming the state's direct democracy. To provide a concrete focus for discussion and quick adoption, Appendix I includes proposed amendments to existing California statutory provisions. This article provides a context for considering the proposed legislation by elaborating on five questions: Why Deliberation? (Part I): In this Part, the Article makes the case, both on the substantive merits and on practical political grounds, for focusing on deliberation-enhancement as the best "next wave" of initiative reform.8 Why the Administrative Model? (Part II): This Part …
A Primer On Batson, Including Discussion Of Johnson V. California, Miller-El V. Dretke, Rice V. Collins, & Synder V. Louisiana.,
2011
St. Mary's University
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, …
Texas Civil Practice & Remedies Code Sec. 41.0105: A Time For Clarification Comment.,
2011
St. Mary's University
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 …
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.,
2011
St. Mary's University
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 …
Honest Services Fraud After Skilling.,
2011
St. Mary's University
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 …
Admitting Light Detection And Ranging (Lidar) Evidence In Texas: A Call For Statewide Judicial Notice.,
2011
St. Mary's University
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 …
How House Bill 2063 And The Expansion Of Access To Protective Orders Could Have Saved Yeardley Love's Life,
2011
University of Richmond
How House Bill 2063 And The Expansion Of Access To Protective Orders Could Have Saved Yeardley Love's Life, Amy Weiss
Richmond Public Interest Law Review
Battered women often face an uphill battle in the legal system. In the 2011 session, the Virginia General Assembly added a new tool to these women's arsenal.o An amended version of House Bill 2063 sponsored by Delegate Rob Bell (R- Albemarle) passed the House and Senate unanimously on February 26, 2011. This paper will examine Virginia protective order law before the enactment of House Bill 2063, how Yeardley Love's death was a catalyst for reform of the law, how the law will change under House Bill 2063, and possible future developments in legislative reform that could further help victims of …
Recent Developments In The Law Of Lawyering: The New Illinois Rules Of Professional Conduct, 42 Loy. U. Chi. L.J. 391 (2011),
2011
John Marshall Law School
Recent Developments In The Law Of Lawyering: The New Illinois Rules Of Professional Conduct, 42 Loy. U. Chi. L.J. 391 (2011), Alberto Bernabe
UIC Law Open Access Faculty Scholarship
No abstract provided.
"Perrymandering": A New Redistricting Plan In Texas Impacts The Latino Vote,
2011
Loyola University Chicago, School of Law
"Perrymandering": A New Redistricting Plan In Texas Impacts The Latino Vote, Norma E. Loza
Public Interest Law Reporter
No abstract provided.
"Save Our State" Amendment: Dead On Arrival,
2011
Loyola University Chicago, School of Law
"Save Our State" Amendment: Dead On Arrival, Ismael T. Salam
Public Interest Law Reporter
No abstract provided.
Legislative Reform Of California’S Direct Democracy: A Field Guide To Recent Efforts,
2011
California Western School of Law
Legislative Reform Of California’S Direct Democracy: A Field Guide To Recent Efforts, Glenn C. Smith
Faculty Scholarship
This Article seeks to enhance the ability of California-initiative process reformers to gain wisdom from the past by briefly, yet comprehensively, reviewing recent proposals considered in the California legislature. Specifically, this "field guide" to initiative reform seeks to orient interested travelers to relevant California legislative exertions from 1997 to the present.' Although our orientation is informed by the entire range of legislative proposals within the dataset, we give special focus to bills proposing to enhance initiative-process deliberation-the ability of voters to understand and meaningfully deliberate about initiative proposals. We also concentrate on two categories of initiative-reform legislation during the period: …
A Synopsis Of Texas And Federal Sovereign Immunity Principles: Are Recent Sovereign Immunity Decisions Protecting Wrongful Governmental Conduct.,
2011
St. Mary's University
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 …
The Unaviodable Ecclesiastical Collision In Virginia,
2011
University of Richmond
The Unaviodable Ecclesiastical Collision In Virginia, Isaac A. Mcbeth, Jennifer R. Sykes
Law Student Publications
Section 57-9(A) of the Code of Virginia is a statute that purports to resolve church property disputes. There is, however, a significant amount of controversy as to whether the statute encroaches on the free exercise rights of hierarchical churches located in Virginia and enmeshes Virginia courts in the ecclesiastical thicket. Given the debate surrounding Section 57-9(A) and the controversial shift of several mainstream denominations in matters of substantive church doctrine, Virginia is a fertile breeding ground for church property disputes. Accordingly, the Commonwealth is in the midst of an ecclesiastical crisis. The impact of the crisis is evidenced by the …
Legal Malpractice Litigation And The Duty To Report Misconduct.,
2011
St. Mary's University
Legal Malpractice Litigation And The Duty To Report Misconduct., Vincent R. Johnson
St. Mary's Journal on Legal Malpractice & Ethics
Lawyers participating in legal malpractice litigation sometimes encounter evidence of serious disciplinary rule violations. Whether, and how soon, those lawyers are required to report this information to grievance authorities is a question that has received little attention from courts and scholars, despite the fact that most states have mandatory reporting rules. The dilemma for lawyers serving as testifying experts is particularly troublesome because nonreporting may result not only in discipline, but testimonial impeachment. The better view is that an expert in a pending case ordinarily has no mandatory obligation to report misconduct. This conclusion is supported by an analysis of …
Ethically Handling The Receipt Of Possibly Privileged Information.,
2011
St. Mary's University
Ethically Handling The Receipt Of Possibly Privileged Information., James M. Fischer
St. Mary's Journal on Legal Malpractice & Ethics
Inadvertently sent e-mails that contain privileged information, material negligently included in a discovery response, or employer's documents taken by a whistle-blower all share a common theme-the materials were not intended to be disclosed to the opposing party. This Article makes two contentions. First, all unintended disclosures should be treated under a single standard that asks whether the privilege holder exercised reasonable care in maintaining the confidentiality of the materials. Second, with respect to the receiving lawyer's professional obligations, a lawyer who receives materials that may be privileged should be allowed to read the materials: (1) to determine whether the materials …
Practical Ethics For The Professional Prosecutor.,
2011
St. Mary's University
Practical Ethics For The Professional Prosecutor., Enrico B. Valdez
St. Mary's Journal on Legal Malpractice & Ethics
In Brady v. Maryland, the United States Supreme Court held that the prosecution's withholding of material exculpatory evidence violated the defendant's due process rights regardless of the absence of bad faith. The implications of this duty can be seen in the case of John Thompson, a man who was convicted of murder in Louisiana in 1985 after the prosecution failed to turn over exculpatory evidence. Thompson was able to get his conviction reversed and subsequently sued the district attorney's office. This Article analyzes Brady and the decisions that followed it to outline the obligations of prosecutors who are in possession …
Circular 230: New Rules Governing Practice Before The Irs.,
2011
St. Mary's University
Circular 230: New Rules Governing Practice Before The Irs., C. John Muller Iv
St. Mary's Journal on Legal Malpractice & Ethics
This Article addresses the issue of tax preparer oversight. Currently, anyone may prepare a tax return for a fee. However, those preparers who are not lawyers, certified public accountants, or authorized to practice before the IRS are not required to meet a minimum standard of education, knowledge, training, or skill. After recent government studies revealed that these non-trained tax return preparers were making costly, egregious mistakes, the IRS proposed mandating oversight over any individual who prepares a tax return for compensation. This Article discusses, in depth, the Department of the Treasury's proposed regulations to broaden the authorities of IRS Circular …
In Defense Of The Substance-Procedure Dichotomy,
2011
University of Colorado Law School
In Defense Of The Substance-Procedure Dichotomy, Jennifer S. Hendricks
Publications
John Hart Ely famously observed, "We were all brought up on sophisticated talk about the fluidity of the line between substance and procedure," but for most of Erie's history, the Supreme Court has answered the question "Does this state law govern in federal court? " with a "yes" or a "no." Beginning, however, with Gasperini v. Center for Humanities, and continuing with Semtek v. Lockheed Martin and the dissenting opinion in Shady Grove v. Allstate, a shifting coalition of justices has pursued a third path. Instead of declaring state law applicable or inapplicable, they have claimed for …
Qualified Immunity Dissonance In The Sixth Circuit: Why We Must Return To Reasonableness,
2011
Cleveland State University
Qualified Immunity Dissonance In The Sixth Circuit: Why We Must Return To Reasonableness, Matt Chiricosta
Cleveland State Law Review
The Sixth Circuit's inconsistent jurisprudence threatens the delicate balance that the defense aims to strike between protecting citizens from having their constitutional rights violated on the one hand and protecting government officials from undue interference with their official duties on the other. This Note critiques the medical emergency-law enforcement response capacity the Sixth Circuit has set forth to help adjudicate qualified immunity claims and suggests improvements the court can make to its qualified immunity jurisprudence.In Part II, I briefly trace the Supreme Court's development of the doctrine and outline the doctrine's policy goals. In Part III, I develop my thesis …
Legislative Control Of The Menhaden Fishery,
2011
University of Richmond
Legislative Control Of The Menhaden Fishery, Nicole M. Rovner, Matthew G. Curtis
Richmond Journal of Law and the Public Interest
This year, six menhaden- related bills were introduced in the Virginia General Assembly. Delegate John Cosgrove (RChesapeake) introduced legislation in the House of Delegates that was identical to Senate Bill 765, a bill that proposed to shift oversight of the menhaden fishery to the VMRC. This article aims to highlight the unique stance taken by Virginia's legislature and explain why this management is better left to the commission responsible for managing every other fishery in the Commonwealth. While there may not be a conclusive link between reduction industry practices and a decline in water quality, Virginia's legislators should recognize the …
