Browsing by Author "Garner, Daniel Charles"
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Item New Light on Sears and Compco—State Copyright Laws Are Not Totally Preempted By the Copyright Act(Texas Tech Law Review, 1974) Garner, Daniel CharlesIn Goldstein, the Court held that state copyright laws may be more inclusive than federal copyright law, meaning federal copyright law does not preempt every state copyright law. The Supremacy Clause of the U.S. Constitution does not require preemption where states pass stricter copyright laws for things Congress has not provided protection for under the Copyright Act. The author suggests that the primary importance of Goldstein is its clarification of two previous Supreme Court holdings: Sears, Roebuck & Co. v. Stiffel and Compco Corp. v. Day-Brite Lighting, Inc.; each case stood for federal preemption of state laws which purport to protect “discoveries” and “writings” for which specific provisions have been made in the Patent and Copyright acts, respectively. It is only in areas where Congress has acted with certainty that may be characterized as “preempted.”Item Survey Civil Procedure(Texas Tech Law Review, 1975) Garner, Daniel CharlesLooks at the Fifth Circuit Court of Appeals decisions that have made an impact on developments in civil procedure law. Includes topics like; Jurisdiction, class actions, appeal to the Courts of Appeals, preliminary injunction as a provisional remedy, and case or controversy. The author concluded that the Fifth Circuit performed admirably this last term in light of the fact that the issues decided this term potentially affects every area of the law and should be decided on sound judicial administration.Item To Prevent Excuse of a Statutory Violation, Party Asserting Negligence Per Se Must Obtain a Jury Finding that the Statutory Offender Violated the Common Law Negligence Standard(Texas Tech Law Review, 1973) Garner, Daniel CharlesIn Castro, held that in all negligence per se cases, the party asserting negligence per se bears the burden of proof to demonstrate excuse. The Castro court explained, the statutory violator must produce some evidence of a legally acceptable excuse. Then the party asserting negligence per se bears the burden of proof on the excuse claim and must obtain a finding that the statutory violation was common law negligence. The party asserting negligence per se is also entitled to an accompanying instruction defining any legally acceptable excuse raised by the evidence. The author claims Castro is a progressive step in Texas civil procedure because it eliminates long-standing confusion concerning overlapping and inconclusive rules. Finally, the author suggests that the Texas Supreme court clarify the form of the excuse instruction to ensure that a statutory violation be negligence per se unless legally excused.