Faculty Scholarship

Dublin Core

Title

Faculty Scholarship

Description

Publications and working papers by faculty at St. Mary's University School of Law.

Identifier

FacultyScholarship

Items in the Faculty Scholarship Collection

The Current State of E-Books in U.S. Law Libraries: A Survey
Rising prices for print legal materials have caused an accelerated shift to acquisitions exclusively in electronic format. This study reports results of a survey of U.S. law libraries regarding indexing of electronic materials, including cataloging…

This white page addresses the proposed amendments to the Uniform Code of Military Justice and recommends that they not be adopted.

The Article concludes, then, that most lawyers’ belief that a charging order effectively precludes creditor recovery is significantly overstated and that, given the extraordinary prevalence of partnership entities today, this is an important point…

This Article examines the application of basic market principles to water transactions and the problems it creates. It considers how the basics of supply and demand can create inaccurate price signals resulting in water supply depletion and other…

The Article concludes that our property system, inefficient as it is, has been shaped by organic forces over the centuries. The numerus clausus, then, is a valid description of the current shape of property law, but it does not arise in the manner…

Begins with a brief explanation of the North American Free Trade Agreement (NAFTA) leading to the study of trademarks under chapter XVII of the Agreement. Part of the study of definitions and norms that this part contains is based on the trademark…

The purpose of this paper is to highlight the conundrum of establishing the factual connection between the regime that secretly sponsors or supports terror and the actual acts of terror. To hold a regime responsible for terrorism, accountability must…

When people think of Texas and civility, the first thing that may come to mind might be the infamous YouTube clip titled ‘‘Texas Style Deposition.’’ In that clip, Texas attorney Joe Jamail proceeds to call opposing counsel several…

In his thoughtful and provocative article, Professor Ronald Rotunda offers several arguments against “constitutionalizing judicial ethics,” especially criticizing the majority in Caperton v. A.T. Massey Coal Co., because he, echoing Chief Justice…

Oaths of office are required by the second and sixth articles of the United States Constitution. The oath for judges, however, has been a bit different from the very beginning. Recent discussion in this journal has again raised the perennial…

To his fresh, young law students, Karl Llewellyn admitted that law schools, at least in the first year, aim “to get you ‘thinking like a lawyer.’” This moral power was intended to revive in the second year, when law students bring their…

This Essay in honor of Oscar Schachter criticizes both ahistorical renderings of the law of war and realist depictions of Peloponnesian War by asking whether Thucydides describes the conditions of a law of war. Examining the history in detail,…

The United States of America is now at war. The infamous destruction of September 11, 2001, which led to this commitment, was of the form and scope of acts that traditionally have led to war. Despite our confidence that we must attack the terrorists,…

The standard of criminal proof beyond a reasonable doubt is believed almost everywhere to be a bulwark of protection for the accused, an assurance that the state will not punish the innocent to snare more easily the guilty. This Article, presents a…

Legal perfectionism is the doctrine according to which officials may adopt and enforce laws according to the officials' understanding of a good life, with the intended practical effect that people governed by such laws will lead better lives. In…

Used in the lecture halls of American law schools for a hundred years, the case method is more reviled than beloved. Many of its practitioners accept its dominance blindly, assigning casebooks and preparing questions for classes without regard either…

In the hands of an honest merchant, the balance is an implement for fine comparisons of honest value. Used by a corrupt merchant, however, the balance is a tool for deceit, a scale in which truth is weighed against gold or pudding against praise.…

Not surprisingly, courts tend to treat a guilty plea as a waiver of all but the most serious defects. This view is quite defensible as an efficient and just allocation of scarce judicial resources. The guilty-pleading defendant can't have it both…

This paper evaluates the Day decision through the lens of past court decisions and legislation in an effort to understand why the court ruled as it did. Part II introduces Texas’s groundwater resources, current uses of that water, and present…

How taxpayers determine the amount of money on which they must pay taxes is an uneasy question because this amount, gross income, has never been conclusively defined. In the case of Preslar v. Commissioner, the Tenth Circuit examined this “disputed…

This Article examines two prototypical surprise liens—federal estate tax liens and mechanics’ liens—and proposes that these are indicative of a trend wherein modern lawmakers are increasingly tolerant of surprise liens. This Article then…

In the wake of AT&T Mobility LLC v. Concepcion, parties opposing enforcement of an arbitration agreement with a class waiver increasingly relied on the prohibitive-costs-based vindication of statutory rights defense. The Supreme Court recently held…

The subject of this Article is people who have been civilly committed under a state’s parens patriae authority to care for those who are unable to care for themselves. These are people who, because of a mental illness, are a danger to themselves.…

Despite being routinely underfunded, lawyer disciplinary processes must operate in ways that merit the confidence of both society at large and the American legal profession. This means that those who participate in lawyer grievance adjudication must…

Over twenty years ago, Jacques Derrida visited the University of Nebraska. My colleague at the Law School, John Snowden, kindly gave me his place on the roundtable of Nebraska scholars who gathered to talk with Derrida. Not yet feeling “at home”…

The importance of water is difficult to quantify, but because it is necessary for survival, it deserves recognition as a human right. Although the right to water has received considerable attention, it has not yet achieved the status of customary…

Two aspects of groundwater require examination. The first issue is use and allocation. The second issue is protecting groundwater from contamination and pollution. The purpose of this comment is to demonstrate the immediate need for regional…

This article focuses on the governance of transboundary groundwater resources in North America. It begins by identifying and reviewing various arrangements over transboundary aquifers between Mexico and the United States , between Canada and the…

This paper evaluates the role of ethics in decision-making and how it could impact water resource management. Part II provides an overview of ethics, its sources, and how it can impact decisions and policy. Part III examines ethical theories that…

This Article analyzes the relevant ethical mandates and the history of postemployment restrictive covenants between lawyers. In so doing, this Article raises and answers questions concerning the traditional position taken by lawyers. First, Part II…

The cornerstone of tort law in our Anglo-American system of jurisprudence is based upon three generally accepted principles. The first is that by awarding any individual monetary damages after their injury, we can make them whole, and the second is…

Mineral deeds present a list of perennial interpretative problems, which create uncertainty about ownership rights in mineral estates and the proceeds from the sale of oil and gas production. Although the list is long, in this article I address the…

Shark Tank might better have been subtitled "The Story of How Steven Kumble Did It His Way and Look Where It Got Him." Shark Tank is mildly diverting entertainment, designed for lawyers and other professionals, and businessmen to peruse at the beach.…

The best primer for constructing the legal framework surrounding bioterrorism is a wonderfully researched and incisive book by Professor Victoria Sutton, appropriately titled Law and Bioterrorism. As the Director of the Center for Biodefense, Law and…

Despite horrific accounts from former partners and associates about working at large law firms, year after year “Big Law” jobs remain sought after by the upper echelon of law students across the country. Although these jobs are highly coveted,…

In this essay, I argue that the “same” standard is the best for Texas’s future. I will describe the significant barriers to reaching this standard; but the barriers are not insurmountable, even within the realities of Texas budget constraints.…

JURIST Guest Columnist Jeffrey Addicott of St. Mary's University School of Law says that the Second Circuit's opinion upholding the conviction of alien enemy combatant Ghailani offers a unique view into how a federal appeals court grapples with the…

When the language of the current article 14.03(a)(1) of the Texas Code of Criminal Procedure first appeared in Texas law, landmark decisions like Terry v. Ohio and Miranda v. Arizona were more than a century in the future. The criminal procedure…

The "automobile exception" to the warrant requirement, was recognized by the Supreme Court in Carroll v. United States. The automobile exception does not, however, dispense with the requirement of probable cause. Rather, it recognizes the inherent…

This Article begins by explaining the problem confronting the participant in the benefits-due lawsuit under the relevant ERISA remedies provision, section 502(a). The Article then reviews the various approaches to the problem taken by the federal and…

It has long been difficult to discern clearly the jurisdictional boundaries for the exercises of a Texas peace officer's warrantless arrest authority. This is due in part to the variety of "peace officers" recognized in Texas law, and in part to the…

To what extent do we have the right, in this country, to express ourselves or receive communications in a language other than English? While there are threads of authority running through our law that appear to provide some answers to this question…

Because these clues of a strategy are found in the Fourth Amendment decisions of the Burger Court, it is unlikely that the changes in approach to individual privacy "just happened." While it may never be possible to discern which Justices of the…

The purpose of this article is not to identify and describe every instance in which Texas law departs from the traditional notion of punishment based strictly and proportionately on individual fault. Rather, the purpose is, through examination of…

It is a great loss that students at S.M.U. no longer will be "intimidated" by Walter Steele in the classroom, but no doubt others will continue to know that kind of intimidation-law graduates answering his bar exam questions, judges, lawyers, former…

It is not clear that the successes of the American exclusionary rule can be obtained in other criminal justice systems, but it is certain that at least some of the costs and benefits would differ from those seen in the United States. In a system with…

Until recently, when lawyers thought of spurious litigation or solicitation of clients by members of the legal profession, they thought only of attorney disciplinary rules and possible sanctions by a grievance committee, or perhaps a tort action for…

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