Texas Law

476 Texas International Law Journal Vol, 42:475 If (international) commercial law is to keep pace with (international) commercial practices, then there has been much to do in the way of (international) law reform over the past forty years. During this period, commercial ...

A look at the history and legacy of the Magna Carta elucidates the many ways in which it shaped American jurisprudence and the law of Texas.  The Magna Carta is held in high regard because the unknown drafters understood the importance of legal principles, fair procedures, proportional punishment, official accountability, and respect for human dignity.  Its unquestionable commitment to the primacy of legal principles and anticipation of the development of judicial ethics significantly influenced and contributed to the construction and content of the Texas Constitution, Bill of Rights, and many Texas cities’ ethics codes.  Although it was intensely focused on the issues of feudal England, the Great Charter set the high expectations that have inspired lawyers and reformers for 800 years.

SUMMARYINTRODUCTION 46I. THE CONVENTIONALITY CONTROL IN BRIEF 49II. FROM SUBSIDIARITY TO INTEGRATION AND BACK 52A. The Traditional Understanding of the Principle of Subsidiarity 52B. The Integration Principle 54C. The Conventionality Control and the Legal Constraints of Domestic Judges 60D. The Weak Legal Justification of the Conventionality Control or the Integration Principle 62III. FROM THE INTER-AMERICAN COURT TO AN INTER-AMERICAN CONSTITUTIONAL COURT 64A. The Conventionality Control and the Judicialization of the InterAmerican System 64B. The Conventionality Control as Constitutional Control or Judicial Review 65C. The Court as the Final Interpreter of the Convention 69IV. THE RELATIONSHIP BETWEEN LATIN AMERICAN AND INTER-AMERICAN JUDGES 70A. Multiple Inter-American Interpreters of the American Convention.........71B. The Court and Latin American Precedents 74C. National Courts and Inter-American Precedents 77V. IMPROVING THE INTEGRATED INTER-AMERICAN MODEL 79A. A Justification...

There are numerous civil and criminal legal alternatives available in Texas for dealing with abuse between adult cohabitants.  Current and proposed systems may protect victims more effectively and deter abusers, and empirical studies can reveal the direction legal systems should take to pinpoint the flaws and shortcomings in present legal responses to abuse. 

The difficulty of assessing the extent of spousal abuse increases the difficulty of finding an effective legal remedy.  Abuse, like rape, is far less likely to be reported than other crimes.  In addition, spousal abuse is hard to define in any meaningful statistical manner because of the variety of forms it takes.  The unavailability or unreliability of statistics on the incidence of spousal abuse in Texas is largely due to a historical indifference to abuse as a major social concern.  It is clear, however, that the number of cases of spousal abuse in Texas alone may be in the millions.

The primary purpose of legal remedies addressing spousal abuse should be deterrence, protection, and compensation, in that order.  The law should deter the potential abuser, and this focus must remain primary.  When deterrence fails, effective protection of the potential victim becomes paramount.  If law and society fail in these goals, compensatory and rehabilitative measures must be available.  The essential challenge is to provide legal systems that are both effective, and accessible.  It is hard to imagine any larger class of victims in such urgent need who have traditionally received so little assistance from the law.

LEXISNEXIS SUMMARY: ... On February 10 and 11, 2005, the Bernard and Audre Rapoport Center for Human Rights and Justice held its inaugural conference, "Working Borders: Linking Debates About Insourcing and Outsourcing of Capital and Labor." ... I think, perhaps, I ...

Probable cause is generally cast in judicial opinions and the scholarly literature as a fixed probability of criminal activity. In the weeks before the September 11 attacks, FBI headquarters, applying such an unbending standard, rejected a warrant application to search Zacarias Moussaoui's laptop computer. This article, which begins with an analysis of the Moussaoui episode, argues that the probable cause standard should be calibrated to the gravity of the investigated offense and the intrusiveness of a proposed search. Tracing the evolution of probable cause from the common law through its American development, the article argues that the Supreme Court's current insistence on a "single standard" lacks historical support. Probable cause should be recast within a reasonableness framework, embracing the common sense view that not all searches equally trench on privacy concerns and not all crimes equally threaten the social order.

While the U.S. Constitution is difficult to amend, most states constitutions are much easier to amend. This essay explores the implications of easily amended constitutions on the nature and quality of government. Theoretically, malleable constitutions can be more innovative and responsive to changes in society; however, they also are more likely to become another venue in which interest-group policy conflicts are played out and less likely to reflect serious deliberation among both government officials and voters. Highly stable constitutions can provide more durable protection of individual rights and other benefits based on the stability of government institutions. Our review of the experiences of state governance under malleable constitutions concludes that states can capture the benefits of both stability and malleability, and thereby improve their quality of constitutional governance, by establishing a brighter line between easy to accomplish amendments and more difficult to acc...

Compared with the disparities that exist between territories in which food is sufficient and those in which it is not, the differences that separate Western nations might well seem to be minor ones; but the interrelationships between agriculture and industry in developed countries are complex, market forces are not free, and changes, however desirable, engender apprehension and difficulty, as Mr. Carr's spirited article shows.

Video Surveillance and the Constitution of Public ... Space: Fitting the Fourth Amendment to a World ... I. The Katz Revolution: Strengthening and Expanding the Protection of Private Spaces ................................................................................... ... II. The Technological Challenge to Katz: ...

Adultery: Trust and ChildrenAdultery: Infidelity and the Law. By Deborah L. Rhode. Cambridge, Massachusetts: Harvard University Press, 2016. 272 pages.Deborah Rhode writes that, while adultery is admittedly not good, it should not be criminal.1 She argues that it should not generate a tort action either, because the original purposes for the torts of alienation of affection and criminal conversation come from a time with quite different views about marriage and gender,2 while no-fault and speedy divorce today give adequate remedies to the wronged spouse.3 Further, she argues that adultery should not affect employment-as a politician or in the military-unless it directly impacts job performance.4The materials she uses to make her case for removing all but social punishments for adultery are varied, and the authority with which she wields them is quite convincing. The historical section (Chapter 2) is particularly well done as a scholarly matter; her anecdotes (especially in Chapter 3...

Although one of the three major regional human rights bodies in the world, the African Commission on Human and Peoples' Rights has remained largely unexamined by lawyers. This situation is particularly unfortunate because the approach to human rights protection and promotion advanced by the African Commission is perhaps the most innovative of the three. Rachel Murray's recent book is a carefully constructed illustration of the importance of the Commission. Instead of attempting to provide a detailed survey of the jurisprudence or decisions of the Commission with regard to each article of the African Charter of Human and Peoples' Rights, the book focuses on some of the most important legal developments under the Charter.1 In doing so, the book offers the reader an in-depth view of three important areas in which the Commission's views have been uniquely innovative: the definition of human rights under the Charter, the non-derogation of human rights norms under the Charter, and non-contentious dispute resolution under the Charter. The first concerns the understanding of human rights in Africa, which the author discusses in chapters 3 and 4, entitled "The Notion of the State" and "The Issue of Personality." In Chapter 3, she points out that African states are not defined in terms of the Westphalian concept to which western scholars often relate; instead, the African state is a much more heterogenous assimilation of individuals, communities, and government. Particularly important is the Commission's flexible approach to personality.2 The author points out how the Commission, and indeed the Charter itself, incorporates an expanded understanding of the reach of international human rights law. This is especially apparent in the articles of the Charter setting forth the duties of the individual.3 While this has been pointed out by other observers of the African system,4 Murray contributes a review of some important statements of the Commission as she examines the personality of states, individuals, non-governmental organizations, and peoples in the context of the Charter. In Chapter 5 the author deals with the non-derogable nature of the Charter under the title "The Law Applicable in Times of War and Peace." This chapter highlights the several decisions of the African Commission whereby states have been denied the right to derogate from the provisions of the Charter under any circumstances, even of war or of civil unrest.5 This striking feature of the Charter, a result of the Commission's interpretation and not explicitly laid out in the Charter, makes the African system perhaps the most advanced system for the protection of human rights in the world. It removes the right of states-one that has been frequently exercised based on explicit provisions in the respective regional and universal treaties-to derogate from human rights in the interest of ensuring the public order or even the continued existence of the state. In other words, in the African system, human rights apply at all times without exception. These brave and farsighted holdings by the Commission form a lex specialis for African states that differs from the discretion allowed to threatened states by the International Court of Justice in its Advisory Opinion on Nuclear Weapons.6 It is a holding that also stands in stark contrast to the attempt by the Inter-American Commission on Human Rights, in Juan Carlos Abella v. Argentina, to apply international humanitarian law, instead of international human rights law, to armed conflicts.7 A discussion of ways in which the Commission's holding differs from the decisions of these two international bodies would have been more relevant than the brief reference to European jurisprudence that is included.8 Nevertheless, the author uses the natural entry point of the Commission's most far-reaching holdings to suggest that the non-- derogability of human rights might indeed be the most beneficial approach for the international community. …

IntroductionThe Supreme Court's feverishly anticipated decision in National Federation of Independent Business v. Sebelius1 ("the Health Care Decision" or "NFIB") regarding the constitutionality of the Patient Protection and Affordable Care Act (colloquially known as "Obamacare") produced three main holdings concerning two critical provisions of the Act.2 The first two holdings concerned the "individual mandate" that requires most Americans to maintain "minimum essential" health insurance. First, a 5.4 majority held that this provision exceeded Congress's power under the Commerce Clause.3 Second, a different 5.4 majority held that this same mandate, which requires those who fail to secure the minimum required health insurance to pay a tax penalty to the IRS, is a constitutional exercise of Congress's taxing authority.4 The third holding concerned "the Medicaid expansion," which expanded the class of persons to w...

I. INTRODUCTION In any legal system the jurisdiction of the courts is a topic of significance. This is especially so in relation to the European Union, where judicial authority is divided between the Community courts and those of the Member States. The way in which these courts interrelate is of importance in both practical and conceptual terms. In practical terms, it can have a profound effect on the efficiency of the judicial regime taken as a whole. In conceptual terms, this relationship can tell us much about the more general nature of the Community legal order. This article will therefore reconsider the jurisdiction of the Community courts. The inquiry is timely given the need to think more generally about the Community's institutional structure in the light of expansion. There have been two important papers which directly address key issues concerning the Community's judicial architecture. One has been written by those currently in the ECJ and CFI, and will be referred...

In the 1980s and early 1990s, it was commonly said that patents would severely damage the software industry. I review some of these early predictions, and hold them up to the light of actual experience. However judged - by overall industry revenues, by product innovation, or by vibrancy of new firm entry - the industry today appears quite robust. I conclude that the early predictions were wrong. This helps explain why we are experiencing what might be called the normalization of software patents. Now, the frontier legal issues pertaining to software no longer center on whether it should be patentable in the first place. Post-State Street Bank, the interesting questions now concern the details and contours of patent protection for software inventions. As with other technologies, the breadth or scope of software patents is a crucial issue. One of the several doctrines that collectively determine a patent's scope is the "written description" requirement in patent law. I b...

This article reviews two volumes that emphasize the role of inter-branch dialogue as a way of fulfilling the original constitutional design regarding the deployment of military force: Mariah Zeisberg’s War Powers: The Politics of Constitutional Authority and Stephen M. Griffin’s Long Wars and the Constitution. Both authors argue that the robustness of deliberations between Congress and the President, rather than the legality of military intervention per-se, ought to be the focus of the public’s concern with regard to war making. The Zeisberg and Griffin volumes tackle the problem of constructing constitutional meaning for a critical aspect of the government’s founding document—its allocation of war authorities—that generally escapes judicial interpretation and enforcement. This article argues that both books are too quick to dismiss law as a significant force for the very kind of institutional behavior they so urgently seek. Because Congress and the Executive are routinely involved ...

This paper demonstrates that there is a distinctive style of presidentialism in Latin American constitutional design. While early constitutions in the region tended to follow the US model of presidency, subsequent constitutions evolved away from this model in favor of giving the president more authority in lawmaking. We demonstrate a substantial amount of convergence over time. This analysis has three important implications. First, it calls attention to geography as an important predictor of constitutional design. Second, our analysis emphasizes change rather than continuity and convergence over time. This approach contrasts with the recent emphasis in comparative law on - legal origins as determinants of contemporary outcomes. Finally, while the legal-origins analysts emphasize the importance of French law in Latin America, we show that at a constitutional level (surely important for economic outcomes), the influence of Spain and the United States was also significant in the early ...

While initially heralded as the magic bullet for development, NGOs have come under increasing criticism for their failure to deliver development as promised. Despite the plethora of new critiques, little systematic work has theorized how NGOs actually operate within the least developed countries as economic and social institutions, and what structural conditions are necessary for NGOs to operate successfully. Drawing on existing theories of the nonprofit form in a functioning three-sector economy, the Article argues that the absence of certain economic conditions has a negative impact on NGO efficiency and efficacy. For NGOs to succeed, they must exist in an economy with a functional state and private sector. Attempts to use NGOs as substitutes for private and public institutions damage the NGO sector and its objectives. The absence of functioning private and governmental sectors not only weakens NGOs but actually impedes the development of these other sectors and perpetuates instit...

Brazil is home to the largest reserve of water resources on the planet, containing approximately 8% of the world's existing freshwater. Its territory encompasses several gigantic water basins, including the vast Amazon River basin. Except for the Northeast, the entire country possesses an enviable abundance of water, for it sits upon enormous underground water reserves estimated to total 112,000 cubic kilometers. While in theory there are nearly 34 million liters of water available for each of Brazil's inhabitants, the truth is that water is distributed unevenly throughout the territory. The North and Central-West, for instance, have both the highest mean water discharge rate and the lowest population density in Brazil. Brazil is the largest country in South America; with an area of more than 8.5 million square kilometers, it is larger than the contiguous United States. Brazil shares a border with ten countries, a fact that highlights the importance of adding international l...

This article examines the relationships within East Asia between economic development, governance, property rights, provisions for the deployment of collateral and the creation of secured financial transactions, and creditor rights and their relationship with insolvency. No sophisticated market economy or market-based financial system can exist without these prerequisites, regardless of indigenous or acquired national characteristics or the form manifested by that system. However, in no national case in East Asia can the legal, regulatory, or policy background be described as either complete or fully integrated.

In its Florida Prepaid and College Savings Bank decisions of two terms ago, the Supreme Court raised significant barriers to Congress's ability to subject the states to damages liability in federal intellectual property suits. These decisions provoked extensive academic commentary and have also sparked efforts in Congress and at the U.S. Patent and Trademark Office to amend the federal intellectual property laws to ensure that state governments will remain accountable for violations of federal rights. This article explores how such legislation might best be shaped in order to withstand constitutional challenge.Satisfactory treatment of the issue requires examination of a diverse array of difficult questions, ranging from murky corners of procedural due process and takings jurisprudence, to qualified immunity, the unconstitutional conditions doctrine, and U.S. obligations under international treaties and trade agreements. Very broadly, the article advances three broad conclusions...

Marriage Markets and the Price of Masculinity MARRIAGE MARKETS: HOW INEQUALITY IS REMAKING THE AMERICAN FAMILY. By June Carbone & Naomi Cahn. New York, N.Y.: Oxford University Press, 2014. 272 Pages. $27.50.IntroductionObergefell v. Hodges,1 the recent Supreme Court decision recognizing gay Americans' right to marry, demonstrates that the United States continues to promote marriage in both direct and subtle ways. Obergefell is one of the government's less subtle recent efforts to market marriage. The decision makes it clear that from the State's perspective, marriage remains a near ideal form of social union. As Obergefell explains, marriage in the United States is an institution of "transcendent importance"; it is "essential . . . to the human condition."2 Marriage is special because it "allows two people to find a life that could not be found alone."3 The Supreme Court's romantic musings in Obergefell about the centrality of marriage w...

While initially heralded as the magic bullet for development, NGOs have come under increasing criticism for their failure to deliver development as promised. Despite the plethora of new critiques, little systematic work has theorized how NGOs actually operate within the least developed countries as economic and social institutions, and what structural conditions are necessary for NGOs to operate successfully. Drawing on existing theories of the nonprofit form in a functioning three-sector economy, the Article argues that the absence of certain economic conditions has a negative impact on NGO efficiency and efficacy. For NGOs to succeed, they must exist in an economy with a functional state and private sector. Attempts to use NGOs as substitutes for private and public institutions damage the NGO sector and its objectives. The absence of functioning private and governmental sectors not only weakens NGOs but actually impedes the development of these other sectors and perpetuates instit...