bluuebunny/crossref_metadata_2025 huggingface dataset:
United States v. Scrushy and Its Impact on Criminal Prosecutions Under the Certification Requirements of Sarbanes-Oxley
Authors: Stock Walter Trey
Published: January 2023

This Note is divided into three parts. Part I will discuss the Sarbanes-Oxley Act itself, including an overview of the political firestorm that motivated its enactment. Part I will also detail the Act's certification requirement and the penalties for noncompliance. And, finally, Part I will set the stage for United States v. Scrushy by detailing the considerable success the Department of Justice had realized in prosecuting white-collar criminals leading up to Scrushy.
Part II will discuss the background of HealthSouth and Richard Scrushy. It will illustrate the government's case against Scrushy and how the government believed the HealthSouth scam was implemented. Part II will also analyze Scrushy's motion that challenged the constitutionality of Sarbanes-Oxley. Part II will examine the trial itself and will provide a description of three primary reasons Richard Scrushy was acquitted-Scrushy's home field advantage, his public relations strategy, and the unique courtroom tactics used by his defense. Finally, Part II will conclude with a look to the future of Richard M. Scrushy, a man who still faces another criminal case and a myriad of civil cases against him.
Part III of this note will analyze the impact of the Scrushy verdict. It will show that even though the Scrushy case was by no means typical, important insights into future Sarbanes-Oxley prosecutions can be gleaned. It will argue that one of the Act's original purposes-to hold corporate executives criminally accountable-has failed. Part III will look to the future of Sarbanes-Oxley. It will provide alternative ideas to consider in order to more efficiently restore confidence in corporate America, while relaxing restrictions on innovation and risktaking.
Texas’s New E-Consumer Protection Acts: A (Ph)arewell to Phishing and Spyware?
Authors: Vaughan Justin
Published: January 2023

This Comment will analyze the two bills, comparing the need for such legislation with the purpose and likely effect of the new Texas laws. This Comment will argue that anti-spyware and anti-phishing legislation is valuable and necessary. However, this Comment will show that the problems of spyware and phishing have an extraterritorial character that will make it difficult, if not impossible, for a state law to provide effective protection or deterrence. Furthermore, this Comment will critique the Texas Legislature's opting to exclude consumers from the class of persons who may seek a remedy.
English Common Law, Slavery, and Human Rights
Authors: Bobb-Semple Colin
Published: January 2023

This paper considers the issues of villeinage and slavery in England and the British colonies; the decision in Somerset v. Stewart' and other cases in English common law courts; the application of English common law in the colonies in the eighteenth and nineteenth centuries, with particular reference to the British colonies of Demerara, Essequibo and Berbice (formerly British Guiana, now Guyana); the Magna Carta 1215 to the Slavery Abolition Act 1833; the factors which led to the introduction of human rights provisions in English law in the Human Rights Act 1998; and the decision of the House of Lords in A & Others v Secretary of State for the Home Department2 in 2005, relating to the question of admissibility of evidence procured by torture.
The thesis of the paper is that English common law was found wanting in connection with the application of fundamental principles of human rights in the United Kingdom and colonies. Lord Mansfield and the other judges who heard the case of Somerset were provided with an excellent opportunity to apply fundamental common law principles of personal security and liberty of the individual to rule that slavery and the slave trade were in breach of the common law and to set a precedent by declaring the liberty of each and every slave who arrived on English shores. Sadly, the judgment failed to live up to the expectations of many of those who had followed the case with avid interest, and it was not until 228 years after that judgment that fundamental principles of human rights became part and parcel of English domestic law, with the introduction of the Human Rights Act 1998 on 2 October 2000.
Codifying Humanity: The Legal Line Between Slave and Servant
Authors: Hendrick Veronica
Published: January 2023

Beloved, Toni Morrison's Pulitzer Prize-winning novel, portrays the ramifications of U.S. legal policies that codified people as either human, therefore entitled to rights, or animal, thereby allotted to the category of slave. It is this categorization that sets the action of the novel into gear. Sethe, the main character, runs from the Sweet Home farm to freedom in Ohio, where her three small children await her. After only 28 days of freedom, her owner and the local sheriff arrive to apprehend her. In response, Sethe attempts to kill her children and herself rather than return to the slave system.
Rights Respiration: Disability, Isolation, and a Constitutional Right of Interaction
Authors: Macurdy Allan H.
Published: January 2023

In 1772, Lord Mansfield, Chief Justice of the King's Bench, presided over a case involving a slave, James Somerset, who had been brought by his master from Virginia to England and who claimed that his simple presence on English soil made him free. Among Somerset's lawyers was one Francis Hargrave, who was arguing the first case of his career that day. Hargrave maintained that "the Air of England was too pure for slavery," quoting the advocate in a prior case and drawing upon the commonly held understanding that slavery was incompatible with a society of rights, and that it deprived the individual of the very indicia of humanity. Asking rhetorically whether the law of a lowly colony or a barbarous state should prevail over the law of England, Hargrave declared that "[i]n England ... freedom is the grand object of the laws, and dispensed to the meanest individual."
Removing Mud in the Clean Water Act: The Ninth Amendment as a Limiting Factor in Chevron Analysis
Authors: Norred Warren
Published: January 2023

This Comment discusses the consolidated case Rapanos v. United States and the challenged scope of the Clean Water Act as an example ok where the Ninth Amendment should serve as a counter-balance to Chevron deference when agencies act against individual liberties without specific enabling statutory authority.
The Comment examines historical evidence revealed and discussed in recent scholarship to establish the various legal views concerning the Ninth Amendment and the protection it was intended to provide. While some commentators see an expansive "natural law" Ninth Amendment, others see a mere rule of construction that cannot be used to reject a law as unconstitutional. However, this Comment finds common ground within all of the accepted legal views that give the Ninth Amendment any substance, even when these views collide in many other respects. This Comment asserts that any effective reading of the Ninth Amendment should find it protects individuals against expansive interpretations by federal agencies of vague statutes. As an example, this Comment asserts that the Supreme Court should employ Ninth Amendment reasoning to restrict the jurisdiction of the Army Corps of Engineers in Rapanos to include only those lands directly connected to navigable waters.
This Comment makes no broad claims of Ninth Amendment protection for every activity not mentioned in the Constitution, nor does it make any attempt to establish what the outer contours of the Ninth Amendment should encompass. This theory threatens no floodgate of newly discovered rights, nor does this theory invalidate any federal law. However, it would remove some of Judge Bork's perceived inkblot from the Ninth Amendment and thereby restore some substance to the Ninth Amendment that the Court has given to the rest of the Bill of Rights.
The Narrow Passage to Medicare Reimbursement: Where Commercialization Barriers Meet Patients’ Rights
Authors: Price Jack
Published: January 2023

Using the field of neuroprosthetics as a paradigm, this Comment explores the connection between technology manufacturers and patients, as well as the common links between the two groups' facially differing motivations. Part II offers a basic introduction to the neuroprosthetic industry and to Medicare's current regulatory environment. Part III frames the reimbursement problem as it exists in current policy. Part IV explains why Medicare beneficiaries themselves do not have a legally functional remedy, and Part V offers some potential solutions that may have a better chance of meeting patient, industry, and legislative goals.
Overseas Legal Outsourcing and the American Legal Profession: Friend or “Flattener”?
Authors: D'Angelo Carlo
Published: January 2023

In his bestseller The World Is Flat author Thomas Friedman commented on how the worldwide proliferation of high-speed broadband technology has "flattened" the global marketplace and enabled U.S. corporations to efficiently and cost-effectively offshore many traditionally domestic white-collar services. Friedman observed that a convergence of technological advances has leveled the global economic playing field and in turn created thousands of well-paying jobs for workers in English-speaking countries such as India and the Philippines. As a consequence of this flattening phenomenon, American white-collar jobs are moving overseas at record numbers to countries where they can be performed at a fraction of the cost. Could this offshore trend, which has already flattened so many other U.S. whitecollar sectors, also flatten the U.S. legal job market?
Putting Focus Back on the Family: Using Multisystemic Therapy and Regionalized Incarceration as Alternatives to the Texas Youth Commission
Authors: Upchurch Elizabeth
Published: January 2023

For the reasons explored in detail in this Comment, the Texas juvenile justice system should be reformed to eliminate the TYC. In its place, Texas should implement locally-managed multisystemic therapy (MST) programs that focus on eliminating risk factors for delinquent behavior and strengthening the family in order to assure long-term maintenance of acceptable behavior. Participation in MST is community- based and allows the juvenile to remain at home during treatment. This should be the first line of defense in assisting juveniles in overcoming delinquent behavior. As a result, incarceration of juveniles should be reserved only for serious or habitual offenders, and these facilities should be regionalized in order to keep juveniles connected with their families and involved in their communities. Research suggests that MST is cost effective, reduces recidivism rates, and keeps youth integrated within their families and communities.
Section II of this Comment explores the history and origins of the TYC, reforms implemented in the TYC since its formation, general offender statistics and trends, reports and investigations of abuse and neglect in recent years, and recommendations made by the recent Blue Ribbon Task Force as to the direction and suggested future reform of the TYC. Section III of this Comment evaluates MST as an alternative to incarcerating juvenile offenders. It specifically explores studies proving MST to be cost-effective and productive, and it details the underlying principles of the MST approach. Additionally, Section III analyzes the necessity of "last resort" regionalized incarceration facilities in order to rehabilitate the most serious and habitual offenders. It reviews the success of the "Missouri Model" and establishes why a similar model in the State of Texas would be cost-effective and would reduce recidivism rates among juveniles released from those facilities.
Justifying Property Rights in Native American Traditional Knowledge
Authors: Cross John T
Published: January 2023

This paper reconsiders the theoretical objections to property rights. It asks whether, notwithstanding the differences between traditional knowledge and the inventions and works covered by orthodox patent and copyright law, valid policy reasons might exist for creating a parallel system of property-like traditional knowledge rights. Answering that question requires a close look at why legal systems would ever choose to grant property rights in products of the mind. This discussion, set out in Part II, must include analyses not only of the standard argument in favor of intellectual property rights-the "reward for creativity" theory-but also other possible reasons to grant someone exclusive rights in knowledge. The unique policy concerns associated with traditional knowledge, especially when that knowledge is held by a non-mainstream culture, may make these alternate justifications for property rights more compelling.
Indigenous Intellect: Problems of Calling Knowledge Property and Assigning It Rights
Authors: Green Daniel Austin
Published: January 2023

This essay likely raises more questions than it answers, but I do offer the following, somewhat pragmatist, conclusions: (1) patents should not cover collective knowledge in the first place, because patents, if at all justifiable, should serve only as an incentive to innovate, not a tool to exploit existing methods; (2) to the extent patents and other intellectual property protections granted to outsiders do continue to extend over such knowledge, there are methods for (and suc- cess stories of) groups that have been able to take control of and reap the benefits of their collective knowledge; (3) under the most egregious circumstances, fraud and unfair competition claims may afford adequate protection outside of intellectual property law; and (4) efforts, such as "defensive publication," to preclude patents because of "prior art" should be construed liberally to preempt patent eligibility in specific cases.
Domestic Violence and Mediation
Authors: Guion Donna
Published: January 2023

Few studies exist regarding domestic violence, mediation, and how each affects the other. With that said, this paper explains how we may assist victims in successfully mediating a high-conflict divorce or custody matter. Through screening, educating, and counseling, high-conflict families, specifically those involving domestic violence, can gain the necessary skills to mediate in a safe and balanced environment.
Public Utilities, Eminent Domain, and Local Land Use Regulations: Has Texas Found the Proper Balance?
Authors: Kent Michael B.
Published: January 2023

Using Texas as a case study, this article reviews the relevant Texas law on the subject and (expanding on the reasoning employed by the recent federal decision) argues that Texas law in fact provides a constructive balance between a utility's interests and those of the local government. Moreover, the balanced approach established by the Texas cases provides a model for other jurisdictions due to the incentives it provides for bargaining between the utility company, the local government, and community leaders.
Introduction to Bankruptcy Considerations for Oil and Gas Lawyers
Authors: Rodriguez Jason T.
Published: January 2023

The following paper is meant as a general introduction to bankruptcy considerations for non-bankruptcy attorneys in Texas. It is common for non-bankruptcy attorneys (and sometimes bankruptcy attorneys) to comment on the perceived counterintuitive nature of bankruptcy cases and the Bankruptcy Code. This may be due to the shifted responsibilities of the debtor as debtor-in-possession and the overall goal of pro rata distribution to creditors. Regardless, entry into the world of bankruptcy can be somewhat complicated and should be approached with care. This is especially true in the context of an oil and gas bankruptcy where the intersection of state property law and federal bankruptcy law is combined with multiple layers of creditor constituencies and interests.
This paper will focus on considerations within a chapter 11 corporate restructuring oil and gas case. These types of cases tend to be quite complex and any actions taken within such a case should be carefully considered. This is distinguished from a chapter 7 liquidation which, while not dissimilar, will have numerous material differences.
A Little TLC: Tender, Liability, and Covenants Vis-A-Vis Recovery of Pre-notice Defense Costs After Paj, Incorporated v. Hanover Insurance Company and Its Progeny
Authors: Knauff J.J.
Published: January 2023

This article analyzes the impact of PAJ, Inc. v. Hanover Insurance Company and similar cases on the arguments by insurers to deny prenotice defense costs. This article also analyzes decisions in other jurisdictions that support the recovery of pre-tender defense costs.
Third-Party Special Needs Trust: Dead or Alive in a Uniform Trust Code World
Authors: Brannan Jennifer
Published: January 2023

Is there anything that could be done to help this family? Under the current Texas Trust Code, a third-party special needs trust could be created to resolve this dilemma. The trust would allow a grandparent or other third party to create a trust for Jadyn to ensure that she would be afforded the same quality of life she would have if she did not have special needs and still be able to retain the much needed governmental assistance. Another benefit to this trust is that after Jadyn's death, instead of the remaining amount in the trust repaying the government, the balance could be dispersed as Jadyn would like. Under the Uniform Trust Code, however, this option may not be possible. The purpose of this Comment is to argue that Texas should not adopt the Uniform Trust Code because doing so could negatively impact the ability for disabled individuals and their families to receive assistance through third-party special needs trusts.
Rising Above Themselves: Why Today’s Lawyers of Color Must Look Beyond Color
Authors: Dasgupta Riddhi
Published: January 2023

This way particular sympathies, biases, and prejudices are replaced by the judge's non-discriminatory appreciation of the rule of law and the obligation of courts to both respect elected authorities and to behave as a check against democracy run amok. Lawyers of color could contribute to society by the awareness that their promise is greater than race or color and by channeling race as a means but not as an endpoint to understand (and to aspire to remedy inasmuch as the relevant constitutional, positive law, or regulatory provision permits) discrimination in all its forms. In other words, minority lawyers must rise above themselves. That will be a necessary, even if not a sufficient, fulfillment of "a more perfect [U]nion." The Author argues that lawyers of color, just like women and other groups once heavily disadvantaged both by law and in the legal profession, do sometimes bring a comprehensive awareness benefiting the particular legal provision.
The Negro National Anthem Controversy
Authors: Tolson Ross Wendy
Published: January 2023

Recently, the Negro National Anthem has been the source of much controversy. For some Americans, it is a source of celebration of the rich black heritage and legacy. For others, it is a source of shame-an ugly remnant of our dark past that is no longer relevant today.
The reading and singing of the Negro National Anthem has been a topic of discussion in the news, the black community, and in the legal and political professions. This article will look at the raging controversy. Specifically, this paper will look at the controversy surrounding the Negro National Anthem at the Texas Tech Law School Black Law Students Annual Banquet in 2009. It will explore the lessons the millennial black attorney could learn from this intergenerational song and the black experience.
A Practical Guide to Operator/ Surface-Owner Disputes and the Current State of the Accommodation Doctrine
Authors: Hafer Douglas R. , Mathis Daniel B. , Simmons Logan W.
Published: January 2023

This Article provides an overview of the operator's rights and a practical guide to the procedures available to enforce them. Of particular emphasis, this Article will discuss how an operator can use injunctive relief to prevent surface-owner interference, and will specifically provide a checklist of sorts for how an operator can obtain a temporary restraining order. This Article will also address how the operator's rights can be limited by the accommodation doctrine. In this regard, this Article will examine how the accommodation doctrine is triggered, what the surface owner must prove when asserting the accommodation doctrine, and whether the accommodation doctrine provides a mechanism for the surface owner to recover damages from the operator for unreasonable surface use.
The Collapse of the in Pari Delicto Defense to Bankruptcy Trustee Claims: How the Fifth Circuit Has Opened a New Door for Trustee Litigation
Authors: Bruner Robert
Published: January 2023

The following Article is organized in five parts: (1) part I places the in pari delicto issue in context by describing a hypothetical scenario in which in pari delicto typically arises; (2) part II describes the in pari delicto doctrine and its purposes; (3) part III summarizes the circuit court opinions applying in pari delicto to dismiss trustee claims; (4) part IV explains the Fifth Circuit's application of in pari delicto; and (5) part V argues that the Fifth Circuit application is most consistent with § 541's plain-language, Supreme Court precedent, and the purposes of the in pari delicto doctrine.
Bull’s-Eye: How the 81ST Texas Legislature Nearly Got It Right on Campus Carry, and the 82ND Should Still Hit the X-Ring
Authors: Massey Riley C.
Published: January 2023

This Comment examines recent legislative proposals for reform of the current limitations on concealed handgun licensees in Texas and their inability to readily defend themselves or others against armed attackers while on the premises of institutions of higher learningboth public and private-in this state.8 It suggests that the modifications to current law, as proposed by 2009's Senate Bill 1164, set clear workable boundaries between balancing campus safety versus reduced intellectual freedom, and the necessary evolution of the law to answer the evils of our times.
Part I of this Comment frames the seriousness of the score of mass school shootings which have occurred across the United States during the past few decades within a context that legal academics may no longer conscientiously ignore. A school shooting on a law school campus should drive home the fact that no geographical area, nor level of esteem, can protect an institution from attack by a motivated, armed criminal, already willing to ignore the law. Part II of this Comment provides background information and the historical context of gun ownership rights in Texas, including the evolution of this state's legal framework for addressing public violence by allowing citizens to bear arms (whether concealed or not). Part III presents a detailed review of the current concealed handgun licensing statutes in Texas, including what is required of an individual to obtain such a license, as well as the limitations placed upon that licensee with respect to where he may and may not have his gun under authority of the license. Part IV summarizes the current state of concealed carry laws in the forty-nine states other than Texas, explaining some of the nuances and development of differing statutory schemes. Part V of this Comment examines the school-shooting phenomenon as it occurs on the campuses of institutions of higher learning, including the reasons why these mass attacks occur, where, and how they do, as well as the disincentive value of armed students and faculties. Part VI discusses S.B. 1164 as proposed and identifies elements within it in an attempt to improve on the existing doctrine, including opposition against the legislation by the academic community, as well as considerations for institutions that prohibit otherwise lawful carry, which results in a shooting death. Finally, Part VII addresses some of the arguments for and against adoption of this legislation, including policy considerations, statistical analyses, and rationales. The next time Concealed Carry reform resurfaces in Austin will be an opportunity to improve on the rights of Texas citizens to defend themselves from armed assailants where they would otherwise be most vulnerable: the shooting galleries we call classrooms.
Preserving Attorney-Client Confidentiality at the Cost of Another’s Innocence: A Systemic Approach
Authors: Strutin Ken
Published: January 2023

When a client admits to her lawyer that she is responsible for a crime that someone else has been charged with, it alters the geometry of the attorney-client relationship. A third party has now entered the room triangulating the lawyer's responsibilities to her client, to the innocent party and to the justice system. The idea of revealing a client's private confession is anathema to lawyers trained to carefully guard their clients' secrets. Fidelity to the client, preservation of confidences, and the right to counsel strongly militate in favor of nondisclosure. On the other hand, an innocent person is facing a wrongful prosecution, incarceration and, in some cases, execution. The pressures to protect the confessing client while at the same time preventing harm to a nonclient from a wrongful conviction are at the heart of a complex ethical and practical conundrum.
The ABA Model Rules of Professional Conduct allow discretionary disclosure where the lawyer believes that a third party faces "reasonably certain death or substantial bodily harm." And two states have gone so far as to expressly include "wrongful incarceration" in their exceptions to confidentiality. This Article will look at the ethical pathways and the multilayered constitutional and evidentiary analyses in assessing the propriety, necessity and method of disclosure. Other options will be considered that might avoid forcing an attorney to choose between client loyalty and confidentiality or preserving an innocent nonclient from substantial harm, such as transactional immunity for the confessor. Lastly, a review of the implications for the adjudication of innocence claims and systemic reform will be conducted, along with an examination of the constitutional imperatives surrounding the attorney-client and attorney-justice relationships.
Air Quality Standards and Oil and Gas Production in Texas: Know Your AMCVs
Authors: Sims Andrew D. , Burt J. Zach
Published: January 2023

The need for America to reduce its dependence on foreign oil is heavily debated in the news today. Reducing our need for foreign oil will result in an increase in domestic production of oil and natural gas here in the United States. Those who oppose more production in the United States often use the environment as a cornerstone of their argument. In Texas, companies that drill for oil and natural gas are under the microscope, and public awareness of the environmental impacts of their operations is at an all time high. Thus, it is important for citizens, companies, attorneys, and courts to understand the basics of environmental regulation and how the odd nomenclature and acronyms associated with environmental rules and environmental testing procedures may be misunderstood.
Open for Business: The ADA Beyond an Employer’s Front Door
Authors: Thompson Scott C.
Published: January 2023

Although heralded as an emancipation proclamation for people with disabilities, the Americans with Disabilities Act ("ADA") has done little over the course of its twenty-year history to increase the number or quality of employment opportunities available to individuals with a disability. Title I of the ADA requires employers to make reasonable accommodations for qualified employees with a disability so long as the accommodations do not impose an undue hardship on the employer. In applying Title [ of the ADA, courts consistently drew a bright line at the employer's threshold and refused to compel employers to make any accommodations unrelated to the workplace.
Frustrated by the ADA's lackluster results, Congress enacted the ADA Amendments Act of 2008 to extend coverage to individuals who had previously been denied ADA protection as the result of two Supreme Court decisions, which had narrowly defined who qualified as disabled for ADA purposes. Then in 2010, two court of appeals decisions blurred the once bright line excluding non-workplace accommodations when those courts held that an accommodation unrelated to the workplace but related to an employee's ability to get to the workplace may be required by the ADA.
This Comment discusses the history of the ADA; the recent extension of the ADA's mandate to include commute-related accommodations; and the netnegative effect this extension is likely to have on disabled employees, disabled job applicants, and businesses.
Internet Piracy: Is Protecting Intellectual Property Worth Government Censorship?
Authors: Espinosa Grace
Published: January 2023

Intellectual property law has struggled to keep up with new technologies and the issues posed by new mediums of communication. With the rise of the Internet, digital piracy has led to millions of dollars worth of losses in American intellectual property. The Digital Millennium Copyright Act ("DMCA ") was intended to address some of the problems related to online infringement; however, at the time the DMCA was drafted, the legislature did not foresee that peer-to-peer file sharing software would give millions of users instant illegal access to copyrighted works.
In response to lobbying for an expansion of copyright protection, the Senate introduced the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act. The Act will give the Attorney General the power to bring an action against websites dedicated to online infringement. If the Attorney General is successful, the court may issue an order to internet service providers to block access to the infringing site, to financial institutions to stop providing online payment systems to infringing sites, and to online advertisers to prevent them from purchasing ad space on the infringing website. Additionally, the Act will require Internet service providers to block all access to foreign infringing web pages from within the United States.
Proponents of the Act are certain that it will help decrease the prevalence of online infringement; however, critics of the Act argue that it is overly broad and will trample over free speech. This Comment discusses the history of modern copyright law, including the rise of digital piracy, and the implications of the proposed Intellectual Property Act.
Ohio
Authors: McKeen Timothy M.
Published: January 2023

Over the past year, minimal changes occurred in Ohio oil and gas law. The Ohio General Assembly passed one piece of legislation that alters the leasing process of state-owned lands for oil and gas development. Ohio case law has also remained largely unchanged, but several recent cases may be an indication of future trends in oil and gas litigation.
Corporate Counsel, Legal Loopholes, and the Ethics of Interpretation
Authors: Ostas Daniel T.
Published: January 2023

This Article examines ethical issues posed by imperfections in legal texts. More particularly, it addresses "legal loopholes," carefully defining the term and then exploring whether there is anything wrong with exploiting loopholes for private gain. Focusing on corporate settings, the analysis considers both the obligation of a business leader to support reasonably just social institutions and the professional obligation of corporate counsel advising on such issues.
Although the notion of a legal loophole enjoys widespread colloquial use, the term is typically used quite loosely and without critical reflection. Perhaps in an adversarial system, one becomes accustomed to taking full advantage of any and all effective legal recourse, including but not limited to the exploitation of loopholes. Loopholes often generate arguments over interpretation. This Article addresses the ethics of legal interpretation head on. It examines the scope of the social obligation to abide by a good faith interpretation of a legal text, rather than to exploit inevitable imperfections in those texts to advance private interests.
The analysis proceeds in three parts followed by a conclusion. Part II portrays a loophole as a style of argument that pits a literal inter- pretation of a text against a more purposeful one. Because literal interpretations sometimes prevail, loopholes have economic value. Part III examines the ethics of a corporate legal strategy to construct strained interpretations of the law as guides to corporate conduct. The discussion embraces both the libertarian insights of Milton Friedman and the democratic liberalism of John Rawls, drawing useful ideas from each. Part IV considers the role of corporate counsel, concluding that in an adversarial setting, corporate counsel must argue for the legal interpretation that best suits the corporation's needs. In a transactional setting, by contrast, where advising rather than advocacy is the norm, ethics require a more balanced interpretation. The Article concludes with a brief summary.
The Merger Clause: A Potential Defense to the Mann Frankfort Implied Promise?
Authors: Madrid Jay J. , Johnson David F. , Regan Joseph P.
Published: January 2023

It is not difficult to imagine a case where a long time salesperson leaves her former employer and begins work with a new employer. When the salesperson began employment with her former employer, the former employer required the salesperson to sign an employment agreement. This agreement contained a covenant not to compete that stated that the salesperson would not compete with the former employer after he resigned. It also provided that she would not use the former employer's confidential information. But the agreement did not provide any express promise that the former employer would ever give the salesperson any confidential information. Moreover, the agreement contained a merger clause that provided that the agreement was the only agreement between the parties and that there could be no implied promises by either party.
After the salesperson begins working for the new employer, she begins communicating with customers whom she contacted while previously employed with her former employer. The former employer files suit and attempts to enforce the covenant not to compete. The issue in this example is whether the covenant is enforceable: Is there an otherwise enforceable agreement regarding confidential information even though there was no express promise by the former employer to provide any confidential information?
The Economic Loss Rule and Its Application to the Tort of Negligent Misrepresentation in Texas
Authors: Fowler Charles E.
Published: January 2023

Part II of this Article begins by chronicling the origin of the economic loss rule; the present-day economic loss rule can be viewed as deriving from two fairly distinct areas. Part II then focus on the adoption of the economic loss rule in Texas and examines the contours of the doctrine under modern Texas law. Part III describes the cause of action for negligent misrepresentation as recognized in Texas, then surveys cases which purport to apply the economic loss rule to negligent misrepresentation claims. Part IV suggests a clarification of the law: negligent misrepresentation should be viewed as outside the reach of the economic loss rule. Though the policies behind the economic loss rule are worthy pursuits, the cause of action for negligent misrepresentation is narrowly drawn so as to inherently satisfy the concerns behind the economic loss rule. As this Article explains, the historical divide between general negligence, with its roots in the form of action of trespass on the case, and misrepresentation, its roots in the action of deceit, provides a useful means of accomplishing this limitation on the scope of the economic loss rule. Part V concludes.
Drilling Into Hydraulic Fracturing and Shale Gas Development: A Texas and Federal Environmental Perspective
Authors: Goldman Michael
Published: January 2023

This Article will first discuss the existing federal laws and regulations and proposed federal laws that apply to hydraulic fracturing activities as well as current studies and enforcement actions concerning the same. This Article will then discuss Texas statutes and regulations and various activities that are currently being pursued by the regulatory agencies that govern shale gas exploration in Texas. With respect to local matters, this Article will also briefly consider municipal regulation of the industry. With the rapid growth of shale gas exploration as a result of hydraulic fracturing, increased litigation has likewise grown. Finally, this Article will also review recent litigation trends that relate to hydraulic fracturing, including an analysis of the typical claims asserted as well as the key applicable defenses under Texas law.
Kansas Oil and Gas Update
Authors: Pierce David E.
Published: January 2023

Kansas courts continue to address foundational "oil & gas law" issues in unique and complex factual contexts. The report for this year again illustrates how oil and gas law principles can vary from state-tostate. This simple fact highlights why a publication like the Texas Wesleyan Law Review's Annual Survey on Oil and Gas law is so helpful and important for those who practice in this area.
Kentucky Oil and Gas Update
Authors: Prulhiere Diana S.
Published: January 2023

No major developments occurred in Kentucky case law in the relevant time period of this update. Although areas of law other than oil and gas were the foundation for the ultimate decisions, three Kentucky appellate court opinions that loosely affect the oil and gas industry are discussed hereinbelow: Kentucky Natural Gas Corp. v. City of Leitchfield ex rel. Its Utilities Commission, Yost Energy, LLC v. Gaines,' and Milam v. Viking Energy Holdings.4 Notably, the first two opinions are "not to be published." According to the Kentucky Rules of Civil Procedure, "opinions that are not to be published shall not be cited or used as binding precedent in any other case in any court of this state."' However, if there is no published opinion that would adequately address an issue before the Kentucky court of appeals, an unpublished decision rendered after January 1, 2003, may be cited for consideration. Similarly, the third opinion states: "this opinion is not final and shall not be cited as authority in any courts of the Commonwealth of Kentucky."
Nebraska Oil and Gas Update
Authors: Nicas James R. , Ranieri Dominique
Published: January 2023

The following is an update on Nebraska's legislative activity and case law relating to oil and gas and mineral law from August 1, 2011, to July 31, 2012.
Rhode Island Oil and Gas Update
Authors: McGuire Mark Patrick
Published: January 2023

The repeal of Rhode Island General Law 46-13.2-6 during the Rhode Island General Assembly's 2012 session does not seriously affect fossil fuel exploration and extraction in the state. First, there are no fossil fuel resources in the State of Rhode Island, and no extraction operations are currently active or likely to become active in the future. Second, even if future operations occur, there are statutes and regulations in place that enforce pollution control of drinking water wells, as 46-13.2-6 was a redundant control on pollution of these wells. Third, the Rhode Island General Assembly never meant for the statute to protect drinking water wells from pollution as a result of fossil fuel extraction operations, as the entire statutory scheme was borrowed from Connecticut.
Texas Oil and Gas Case Law Update
Authors: Truss James M. , Robertson Benjamin
Published: January 2023

As the Texas economy enjoys the impact of robust oil and gas exploration and development spurred on by the shale drilling boom, Texas courts continue to experience similarly swollen dockets of oil and gas disputes. The Texas Supreme Court remained active in the energy sector in the 2011-2012 term with significant opinions affecting the areas of pipeline condemnation, exploration and production industry contracts, and lessor-lessee relations. Texas intermediate appellate courts also issued dozens of opinions touching various aspects of the industry from title and conveyancing disputes to lease operating issues. The following update will address the significant Texas Supreme Court opinions from the 2011-2012 term as well as selected cases from the intermediate appellate courts.
Washington Oil and Gas Update
Authors: Greene Duncan M.
Published: January 2023

This Article provides a brief survey of the past, present, and potential future of petroleum exploration and production in Washington State, with an emphasis on recent natural gas exploration efforts. Section II of this Article describes Washington's petroleum geology and the history of petroleum exploration in the state. Section III summarizes the state and local regulatory framework governing natural gas exploration and production. Section IV concludes by discussing the implications of this survey for potential producers of natural gas in Washington State.
West Virginia Oil and Gas Update
Authors: Graham Andrew S. , Delancey Cole T.
Published: January 2023

This Article summarizes and discusses important cases and legislation, issued or enacted between September 1, 2011, and August 31, 2012, pertaining to the law of oil and gas in West Virginia. The Article is divided into two parts. Part One discusses the Natural Gas Horizontal Well Control Act, which was enacted by the West Virginia Legislature on December 14, 2011. Part Two discusses developments in West Virginia's case law regarding oil and gas. In this Part, the Authors will discuss and analyze major decisions issued by the West Virginia Supreme Court of Appeals, as well as decisions by the United States District Courts for the Northern and Southern Districts of West Virginia.
The Texas "Parking Lot" Law: Why Overbroad Legislative Drafting Makes Chapter 52 of the Texas Labor Code Uniquely Susceptible to Constitutional Challenges After the New OSHA Workplace Violence Regulations
Authors: Redburn Brian G.
Published: January 2023

This Note examines litigation over similar laws in Florida and Oklahoma, and why, in light of new Occupational Safety & Health Administration regu­lations, the mostly approving outcomes in those states could nonetheless signal constitutional challenges on the horizon for the Texas law.
Bigger in Texas: Does That Include The Penal Code Definition of Public Place?
Authors: Harper Nicholas
Published: January 2023

Texas courts have split opinions on the subject, and this Comment will focus on both sides of the argument as to whether places such as front yards and driveways may be considered "public places" under the Texas Penal Code.
Disproportionate or Excessive Punishments: Is There a Method for Successful Constitutional Challenges?
Authors: Drew Kathi A. , Weaver R. K.
Published: January 2023

This article will begin with a review of several United States Supreme Court cases, from the emanation of the doctrine in Weems v. United States' to the widely misread and misunderstood case of Harmelin v. Michigan. The article then examines the impact of the Federal Sentencing Guidelines on the federal circuit courts as they relate to claims of disproportionality in prison sentences.' Next, the article explores some of the various state court opinions that have considered the issue of proportionality under federal constitutional guidelines and their own state constitutions. Finally, the article proposes an analytical structure to determine whether a sentence is disproportionate in an individual case.
Handshakes and Heartaches: Who Owns the Oil After Rogers v. Ricane
Authors: Ferebee Dayna
Published: January 2023

The Supreme Court of Texas recently denied rehearing Rogers v. Ricane Enterprises, Inc., thereby reaffirming their restriction of the Davis doctrine, a 70-year-old principle that allowed a mineral lease to terminate when the operator completely abandoned the purpose of the mineral lease.
Although the Davis doctrine itself is a narrow rule of Texas oil and gas law, and rarely applied today, the questions raised in Rogers v. Ricane expose the tenuous foundation of oil and gas law built in large measure on handshake deals3 and good will. The law of oil and gas is based on the uncomfortable marriage of contract and property law. Rogers v. Ricane illustrates the confusion that can arise when a court applies these principles. This comment examines the difficulty Texas courts have intrepreting oil and gas partial assignments, which they may do by looking at the writing itself against the backdrop of common industry practice. First, the article reviews Texas law in this area and then looks at the Rogers v. Ricane Enterprises, Inc. decisions.
Is Common Law Bad Faith Dead in Texas, or Simply Getting a Second Breath? The History of Bad Faith in Texas
Authors: Harlin David Lloyd (Trey)
Published: January 2023

This comment will discuss the history and evolution of the tort of bad faith in Texas. It analyzes recent decisions and suggests precedential and policy reasons for the reversal of Stoker.
Against the Peace and Dignity of the State: Spousal Violence and Spousal Privilege
Authors: Seymore Malinda L.
Published: January 2023

Part I of this article discusses the profiles of batterers and victims as a predicate for analyzing applications of the spousal immunity privilege in Texas. Part II briefly explores the origin and nature of the spousal privileges. Part III examines the history of the spousal privilege and spousal crime exception in Texas, and the recent statutory change. Part IV discusses the application of similar exceptions in other states. Part V briefly explores the application of the spousal crime exception to the communications privilege. Finally, Part VI suggests how Texas courts should properly apply this new rule of evidence in domestic violence cases.
Invasion of Privacy in Texas: Public Disclosure of Embarrassing Private Facts
Authors: Sewell Michael
Published: January 2023

Although invasion of privacy tort law has existed for more than a century in the United States,1 in Texas, this area of the law is in its infancy, tracing back only a quarter century.2 The purpose of this comment is three-fold: (1) to illustrate the origins of the four modern torts constituting invasion of privacy; (2) to examine public disclosure of embarrassing private facts ("private-facts tort"); and (3) to argue for revising the Texas private-facts tort in order to resolve its current conflict with the rights to free speech and free press. This discussion centers on recent mass media cases that conflict with the First Amendment.' Although the mass media does not have legal rights superior to any person, partnership, or corporation, this comment assumes protecting mass media interests serves to safeguard all First Amendment interests.
Part I of this comment traces the origins of invasion of privacy in the United States and explores available defenses. Part II traces invasion of privacy in Texas with specific emphasis on the private-facts tort. Part III offers suggestions to Texas courts regarding invasion of privacy as it continues to evolve in Texas.
The Use of Statistical Inference to Establish Severance Damages in Condemnation Cases
Authors: Shampton John F.
Published: January 2023

Part I of this article addresses the general problem of measuring severance damages in condemnation proceedings in Texas after Schmidt. Part II introduces the concept of statistically inferring the value of specific attributes of individual real estate parcels with an emphasis on valuing the changes caused by the condemning authority's use. Part III explores utilizing an analytical technique which has long been popular in financial literature for valuing specific aspects of real estate. Part IV considers the admissibility of statistical value inferences under the rule from Daubert v. Merrill Dow Pharmaceuticals, Inc. followed by a conclusion and an appendix providing a formal mathematical exposition of the model discussed.