Law Faculty Scholarship

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The dynamic faculty of Texas Tech University School of Law continually writes books, articles, and other scholarly materials on a wide range of law-related issues. This collection showcases the scholarly publications written by Tech Law faculty members.

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Recent Submissions

Now showing 1 - 20 of 1583
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    Planning for Incapacity: Helping Clients Prepare for Potential Future Health Crises
    (Estate Planning and Community Property Law Journal, 2017) James, Vaughn E.
    It is prudent for all people to plan for incapacity. As individuals plan, they will turn to their lawyers—or estate planners and personal financial planners—to help them. This article examines various ways in which these professionals can help their clients prepare for potential health crises or accidents that lead to disability or incapacity. As an initial matter, Part I of the article notes that planning for incapacity involves planning along two “management tracks”—property management and healthcare management. Various tools available to legal practitioners, estate planners, and personal financial planners populate these tracks. Part II of this article will discuss the property management track and the tools therein—the Revocable Living Trust and the Durable Power of Attorney. Part III will discuss the healthcare management tracks and the tools contained therein—the Directive to Physicians, Family, and Surrogate, Medical Power of Attorney, and Out-of-Hospital Do-Not-Resuscitate (OOH DNR) Orders. Part IV will discuss a Texas tool that effectively straddles both tracks: the Declaration of Guardian. Part V, the conclusion, will summarize the tools and tracks discussed in the article and will urge the reader to lead adult clients—regardless of their age—to begin the process of planning for incapacity.
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    The Sisyphean Task of Interpreting Mineral Deeds and Leases: An Encyclopedia of Canons of Construction
    (Texas Tech Law Review, 1993) Kramer, Bruce M.
    Focuses on mineral conveyances and the canons of construction for deeds in Texas. Canons of construction can be useful in assisting a court in making "good sense" of inartful drafting. Hence, good drafting can resolve many of the problems that have plagued the Texas conveyancing jurisprudence. The continued adherence to outdated forms as well as the continued confusion as to the nature of the interests owned by the parties after an oil and gas lease has been executed have created difficult interpretational issues. The long and tortured history of dealing with the multiple fraction issue as reflected in Hoffman, Garrett, Alford, Luckel and Jupiter Oil has added to the hidden transaction costs in conveying mineral interests.
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    The Reach For Repose: Have the Texas Courts Gone Awry?
    (Texas Tech Law Review, 1993) Shannon, Brian D.
    Examines the Texas statute of repose relating to persons who construct or repair improvements to real property in the context of both the decided cases and with regard to the intentions of the legislature in enacting the repose protections. The legislative history of section 16.009 clearly demonstrates that the Texas Legislature intended only to expand upon previously existing repose protection afforded to licensed architects and engineers by creating similar repose protection for a class of construction professionals such as contractors, builders, and repairers who actually perform construction services in building projects. In light of this legislative history, the courts' efforts to extend the reach of this statute even further to include certain product manufacturers and suppliers constitute an inappropriate judicial foray into the legislative process.
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    Securities Law
    (Texas Tech Law Review, 1992) Zanglein, Jayne; Myhra, Alison
    During the survey period, the Fifth Circuit did not make any significant advances into previously uncharted areas of securities law. This article will not examine every securities case issued during the survey period. Instead, we will focus on those cases, which presented interesting issues.
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    Preparing for (and Defending Against) a Cyberattack on the Energy Sector
    (Rocky Mountain Mineral Law Foundation Special Institute, 2021) Sutton, Vickie; Sutton, Victoria
    Law firms have an affirmative duty to provide cybersecurity for their own information as well as client information. Ethics complaints to ceasing the law firm can result from hacking and data breaches. Legal ethics explicitly require lawyers to develop a cybersecurity plan. These obligations will continue to become more important as breaches continue to rise in frequency. Provides an overview along with checklists to help guide legal professionals.
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    Anatomy of a Conspiracy Theory: Law, Politics, and Science Denialism in the Era of COVID-19
    (Texas A&M Law Review, 2021) Sherwin, Brie D.
    With COVID-19, we are facing the most serious public health threat of our lifetime. Now, more than ever, we need experts and sound scientific advice to guide critical decision-making during the pandemic. With conspiracy theories and other similar rhetorical weapons being used to discredit our scientific experts, we face a myriad of misinformation, mistruths, and all-out attacks on our experts, breeding distrust between the public and the policymakers leading the fight against the pandemic. As President Trump took office, scientists were routinely denigrated and isolated. Furthermore, science denialism has permeated its way up to the highest levels of government, resulting in disastrous public policy decisions that have been detrimental to environmental and public health. Funding was cut for much-needed research on zoonotic-borne diseases, the U.S. government pulled its support from the Paris Climate Agreement in 2017, and well-respected scientists were removed from various advisory roles in agencies. Until the COVID-19 pandemic, many of these decisions went unnoticed by the general public. But, in courtrooms over the past thirty years, judges have recognized the danger of fake experts and acted as gatekeepers to ensure that experts are credible and that science is reliable. The use of Daubert in the courtroom has provided judges with a tool for allowing expert testimony that has met certain indicia of reliability, so jurors can focus on making factual determinations instead of judging whether the sources of the expertise should be trusted. Without a similar gatekeeping function in society, citizens must make those determinations on their own. Scientists and advocates of science should employ their own rhetorical methods to restore the credibility and importance of science in protecting our environment and now our health. Change can only truly come from the ground up. Citizens must actually believe that the climate is changing; they must believe that the health advice they are receiving from public health experts is accurate and trustworthy enough to follow. It is time to put science first-we can only do that if we stop science denialism in its tracks and restore resources and trust in our scientific community.
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    Due Process and Judicial Review of Government Kill Lists
    (Loyola Law Review, 2021) Murphy, Richard W.
    Proposes a procedural experiment that would enable courts to review placements on kill lists while protecting the national security and separation-of-powers concerns that motivate the state-secrets privilege and the political question doctrine. Under this proposal, a court would protect state secrets by denying the plaintiff any access to them, and it would guard against violation of the political question doctrine by limiting its factual review to determination of whether the government has a reasonable basis for its placement decision. This limited form of review would, in the name of protecting national security, severely diminish fundamental due process requirements of notice and an opportunity to be heard. It would also, however, provide a role for a third core element of due process, a neutral decisionmaker.
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    The DIY Unitary Executive
    (Arizona Law Review, 2021) Murphy, Richard W.
    Explores a simple argument for preserving a measure of formal agency decisional independence in the event that the Supreme Court, as Seila Law LLC v. Consumer Financial Protection Bureau seems to portend, adopts an unalloyed, strong version of the unitary executive theory. According to strong unitarians, Article I's vesting of the executive power in the President authorizes that official to control discretionary powers that Congress has granted to agencies. The executive power, however, is the power to enforce laws, not to break them. It should follow that the President, to exercise an agency's statutory discretion legally, should have to comply with any procedural constraints that Congress has placed on the exercise of that power. Put another way, the President, to take over an agency's role as the "decider," should have to do the decider's work. Presidents, notwithstanding their authority to delegate, should find that these burdens are often not worth the trouble, preserving space for agency decisional independence even in a unitarian world.
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    UnFoxing Judicial Review of Agency Policy Reversals or "We Were Told to Like the New Policy Better" Is Not a Good Reason to Change
    (University of Richmond Law Review, 2020) Murphy, Richard W.
    Looks at agency changes in policy based on presidential influence in light of the Fox case. Part I of this Article provides context for the debate over the Fox power by tracing the evolution of leading efforts over the last century to legitimize agency policymaking and close the "democracy deficit" that it purportedly creates. Part I focuses in particular on the courts' development of arbitrariness review as a means of controlling agency policymaking, and it also pays particular attention to the "presidentialist" model that White House control of agency policymaking democratizes and legitimizes it. Part II takes a close look at the Fox litigation itself. This discussion reveals that Justice Scalia's Fox power, like presidentialism, presupposes that extra-statutory political influences wielded by elected officials and their proxies can legitimize agency policy changes. Part III criticizes this framework for resting on an unrealistic understanding of democratic governance and electoral accountability, and it explains why Justice Breyer was right to insist that agencies should give (expert) answers to his "Why change?" query.
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    The Strange Case of Timothy Hennis: How Should It Be Resolved
    (Texas Tech Law Review, 2020) Loewy, Arnold H.
    Examines the trials of Timothy Hennis, accused of the murder of Kathryn Eastburn and two of her daughters. After two trials, Timothy Hennis was acquitted of the murders. Hennis went on to have a successful military career and eventually retired from the Army. After 20 years evidence was tested, which linked Hennis to the crime. Since Hennis had been acquitted, he could not be tried again. As a result, the Army called him out of retirement to be court martialed. The article discusses many aspects of this case, especially the issue of using a military court martial to circumvent double jeopardy and concludes with a recommendation that if the United States Supreme Court should get this case they should hold that the federal interest is too attenuated to justify trying Hennis again.
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    Stop Before It Starts: Regulating Employee Microchipping in the COVID-19 Era
    (Mississippi Law Journal, 2020) Gonzalez, Jarod S.
    The focus is on regulating employee microchipping. The important points of this article are as follows. First, the law must prohibit employee microchipping as a condition of employment, penalizing any employee for refusing to be microchipped, or allowing an employer to access data from an employee microchip without the employee's permission. State legislatures should stop this upcoming problem of employers requiring their employees to be chipped as a condition of employment. Second, the "voluntary" use in the workplace of an employee's microchip implant, if even allowed at all, must be heavily regulated to protect employee privacy rights. States should enact their own employee microchipping statutes because the common law of employee invasion of privacy is too ambiguous to provide the certainty and clarity in the law that is necessary to protect employee privacy on this matter. Third, federal and state employment discrimination laws that provide accommodation rights for disabled and religious employees must be adhered to when employee microchipping issues arise in the workplace for protected individuals.
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    Error Correction Mechanisms for Transactional Script Smart Contracts
    (University of Kansas Law Review, 2021) Christopher, Catherine Martin
    Explores the implications of transactional scripts used in situations where there is less than total trust between the parties. In particular, this Article asks the question of how parties to these next generation transactional scripts can seek redress and remedies in the event that the transactional script does not perform according to the parties' intent. Until parties feel safe that any errors can be corrected, large-scale implementation of transactional scripts will be hobbled. Part II of this Article articulates why the term "transactional scripts" is preferable to "smart contracts" and describes the utility and potential of transactional scripts. Part III identifies several factors that hinder greater expansion of the use of transactional scripts. It goes on to identify uncertainty of enforcement as the most important barrier to transactional script innovation, finding that parties will be reluctant to entrust bigger and more complex transactions to transactional scripts until the parties are comfortable that an external mechanism is capable of correcting errors in the execution of the transaction. This lack of reliable enforcement mechanisms is a problem exacerbated by the characteristic of distributed ledger technology, which is to move only forward, preventing revisions or reversals of preexisting entries. Part IV explores and critiques possible mechanisms that may be able to provide error correction, including statutory law, private law, online dispute resolution, public/private regulatory partnership, and common law. Part V concludes the Article, noting that the expansion of transactional scripts' utility will be tethered to the security provided by available error-correction mechanisms. Only as contracting parties become assured that the integrity of their transactional intent will be effectuated will transactional scripts be adopted for use.
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    Robert Jackson’s Critique of Trump v. Hawaii
    (St. John’s Law Review, 2020) Casto, William R.
    Examines the case, Trump v. Hawaii in light of Justice Jackson’s view that a Court would go along with a President’s purposeful discrimination against a minority religion. This brief essay explains Trump using Jackson’s critique of judicial review in national-security cases. The Essay also uses Trump to examine a flaw—probably structural—in the constitutional theory of process jurisprudence.
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    Foundational and Contemporary Court Confidentiality
    (Missouri Law Review, 2021) Benham, Dustin B.
    Examines the integrated confidentiality system that now pervades American dispute resolution. This Article first considers the structure and impact of court confidentiality. Much of the current system is driven by inertia, tradition, and player incentives (in addition to formal rules). Next, the Article examines some of the existing limitations on court confidentiality and proposes a few alternatives. These proposals include new limitations on private confidentiality agreements for litigation information, an appropriately expanded role for the First Amendment in protective-order disputes, and limitations on umbrella protective orders and sealing orders.
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    The Intersectionality of Law Librarianship & Gender
    (Villanova Law Review, 2020) Baker, Jamie J.
    Like the legal writing community who has brought this issue to the forefront, it is important for law librarians to be fully included in the discussion surrounding statusXgender is the legal academy. This Article attempts to do just that. Part I of this Article provides a historical background in librarianship as a pink-collar profession. Part II discusses the pink ghetto in the legal academy and provides a history of law librarians within the legal academy. Part II concludes with a discussion of law librarians inhabiting the pink ghetto of the legal academy. Part III provides insight into the effects of living in a hierarchy, and Part IV concludes with recommendations for improvement.
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    Oil and Gas Leases and Pooling: A Look Back and A Peek Ahead
    (Texas Tech Law Review, 2012) Kramer, Bruce M.
    Provides some historical background on the development and use of the leasehold pooling clause; review interpretational issues that have impacted the clause; review the court-imposed standards of conduct on a lessee's exercise of the pooling power; and, finally, make some recommendations regarding how pooling and unitization clauses can be utilized to deal with the reality of horizontal wellbores, larger spacing units, and the to-date imperfect information regarding drainage patterns that occur after shales and other formations have been hydraulically fractured.
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    Civil Procedure
    (Texas Tech Law Review, 1992) Floyd, Daisy Hurst
    During this survey period, June 1, 1990 through May 31, 1991, the Fifth Circuit decided a number of cases in which it established new rules or clarified existing law. The decision discussed represent the court’s activity in a myriad of procedural areas. The cases are grouped according to their common themes with special attention given to the more significant decisions.
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    Nothing Changes—It All Remains the Same: Modern Capital Punishment (Human Sacrifice by a Different Name)
    (Texas Tech Law Review, 2014) Metze, Patrick S.
    The idea of ritualized human sacrifice---often public, always moral, and never of the innocent-that guides the article's discussion. Conveys how often in history and throughout the world, the execution of humans has frequently taken on a public, and often spiritual, purpose within each society, performed by its leaders-the infallible cultural icons of morality-for both their own benefit and the benefit of their gods.
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    Unintentional Killings
    (Texas Tech Law Review, 2014) Loewy, Arnold H.
    Reviews the concept of criminalizing unintentional homicides. Examines the gamut of unintentional killings and assess the wisdom of various courts' treatment of them.
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    Federal Taxation
    (Texas Tech Law Review, 1991) Phelan, Marilyn E.
    Reviews the decisions of the fifth circuit involving federal taxation during the survey period. The cases dealt with procedure issues and tax evasion. The author found that the courts decisions were more favorable to taxpayers than in previous survey periods.