Course Schedule

What is a “tragic choice”?  In this course we will discuss the dilemmas surrounding the decisions by societies to distribute various goods and bads in different ways.  Among these allocations are: who gets expensive medical care and transplants; what protocols are put in place to stem a pandemic; who gets drafted; who is given the right to have children; priorities for immigration; the administration of the death penalty; distributing food in a famine or water in a drought; the ransom of hostages.  In every society, citizens hold competing and incommensurable values.  Tragic choices highlight---and sometime hide or suppress—the conflicts that such choices pit among these values.

The principal text is Tragic Choices: the conflicts society confronts in the allocation of tragically scarce resources by Guido Calabresi and Philip Bobbitt (Norton, 1978).

SMNR: Transnational Class Actions and Smnr: Aggreg Lit Glob Context may not both be counted.

For more than seventy years, the United States has been in the forefront of developing means for resolving injuries to large numbers of people on an aggregate basis. In our modern industrial era, the problem of harm or injury to large numbers of people is not unique to the United States. In addition, civil wars and despotic regimes worldwide have resulted in mass human rights violations and widespread injuries and harms. This course examines the problems related to redress for mass harms in a comparative context. The course begins with an overview of the problem of aggregate harms and approaches to remediating large-scale injuries, including jurisprudential debates centered on litigant claim autonomy. The course then examines American substantive and procedural approaches to resolving mass claims, including critiques of these models. After examining American approaches to mass aggregate claim resolution, the course surveys the similarities and differences between civil law and common law systems, to provide some basis for discussion whether civil law systems are able to support mass resolution of injury claims. The first part of the seminar will examine whether American approaches to large-scale aggregate litigation have migrated to other legal systems, and the embrace of, or resistance to, American style-complex dispute resolution techniques.

Topics explored in the first half of the course include a survey of class action and other aggregate dispute resolution mechanisms that have now been adopted or are being considered in the European Union countries, the U.K., Canada, Australia, Latin America, and Asia. The materials explore whether the United States is gradually moving away from being the center of gravity for class or aggregate litigation. This portion of the course considers problems relating to the enforcement of class action judgments transnationally, as well as problems with the application of res judicata principles. The course also addresses the divergent views of different legal systems regarding so-called “opt-out” and “opt-in” regimes with regard to aggregate resolution of claims.

The course next considers recent developments globally with regard to resolution of transnational securities claims, again discussing the trend in the United States to limit the extraterritorial reach of American courts. We discuss how other countries have become the locus for such litigation by default. Transnational securities litigation provides an archetype for exploring the problems and issues related to the resolution of aggregate claims extending beyond nation-state borders.

The second half of the seminar focuses on the transnational resolution of mass torts and human rights claims affecting large numbers of victims. This portion of the course investigates various international institutions that might provide auspices for aggregate claim resolution, including the United Nations Human Rights Committee, the European Court of Human Rights, and the Inter-American Commission on Human Rights. In addition, the course will examine the American Alien Torts Claim Act, the Torture Victims Protection Act, and the American class action rule, posing the question whether implementation of these statutes in the United States provides a working model for redress of mass injuries. The seminar focuses on a series of case studies to illuminate both the possibilities and limitations of aggregate claim resolution in a global context. These case studies include the Marcos Philippine human rights litigation, the Bosnia-Herzegovina genocide claims, the Austrian ski fire litigation, and the Holocaust victims’ asset litigation. This segment of the course includes examination of the Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum Co., in which the Court substantially limited the extraterritorial scope of the American Alien Tort Statute.

The seminar ends with a discussion of the recent development in the European Union in its 2012 Resolution, “Towards a Coherent Approach to Collective Redress.” An examination of the EU Resolution raises the question whether the EU has formulated a type of regulatory litigation that provides an interesting analogue to the American class action procedure. In contrast to the EU recommendations, these materials consider the argument that the EU ought to have adopted an opt-out (rather than an opt-in) approach to aggregate litigation.

There is no textbook for this seminar. The materials for each class ession will be posted in advance on the CANVAS website for the seminar.

This is a writing seminar. Each student in the seminar will be required to complete four short papers of approximately five pages, singled-spaced text during the course of the semester. Students will choose the weeks in which they wish to submit papers. Each paper will analytically present and discuss issues or debates relating to the weekly reading assignments. Each student, at the beginning of the semester, chooses the paper topics and timing of the papers.

This two credit hour course provides an overview of practical school law (Kindergarten-Grade 12) with a focus on school district policy and governance, student and employee rights, and current issues facing public schools. Taught by a practicing school attorney, the course has no formal prerequisites, but will build on principles of federal civil procedure and constitutional law. School law cases frequently rely on these principles as courts strike a balance between the federal and state policy priorities, civil rights, and personal liberties colliding dailing in our public schools. Students will read leading education-related precedents from the U.S. Supreme Court and federal circuit courts, focusing on a different topic each week. At the start of each class session, a subset of students will prepare a briefing and lead the class in discussion of an assigned current event related to the week's topic. Our class discussions will most certainly be "ripped from the headlines." Grading will be a mix of class participation, current event briefings (written and oral), and a short, predictable traditional final exam.

Secured Credit is a key class for many types of students. It's essential for student heading into transactional careers or those in litigation in commercial law. It is also crucial for litigators, including public-interest attorneys, who win cases and want their clients to actually collect the money they've won. It is important for other students as well because credit is one of the major systems underlying the U.S. and global economies. Top legal professionals - as Texas Law graduates will be - must have a familiarity with it. This course covers a breadth of credit systems: consumer, business, secured, and unsecured – with a significant emphasis on commercial secured lending. This course also covers a fundamental question not addressed elsewhere in law school curriculum: once you win that big court case, how do you collect money from the other side? (Or, once you lose that big court case, how do you avoid paying?) Students will engage with real-world-based problems, financial current events, and practical strategies for addressing financial problems in consumer, small business and corporate contexts. The course's primary body of law is Article 9 of the Uniform Commercial Code, but it also touches on bankruptcy topics and real estate law. A secured loan is one in which the debtor and lender agree that if the debtor does not pay, the lender can take specific items of property from the debtor. This property is called collateral, and the lender is said to have a security interest in the collateral. The collateral may be tangible property such as inventory, equipment, and consumer goods, or intangible property such as stocks and bonds or the debtor's right to collect from people who owe money to her. This Secured Credit course examines how secured transactions are structured and why they are structured that way. It covers the mechanics of making secured loans, the rules that govern repossessing the collateral if the debtor doesn't pay, and what can happen to security interests if the debtor goes bankrupt. It also examines the priority rules that rank competing claims to the same collateral. Through the problem method, students will learn skills that can be applied to a variety of statutes in law school and many types of legal careers.

Securities law is important, not only for litigators and transactional lawyers at law firms and in in-house positions, but also for regulators, policymakers, enforcement lawyers, and others in government service. Securities Regulation is one of the most fundamental courses that students interested in careers at a law firm with corporate and other commercial clients or at a financial regulator should take. Corporations, be they small start-ups or long-established entities, raise capital in public and private offerings of securities. The offerings are subject to securities statutes and Securities and Exchange Commission rules and policies. Moreover, whether or not they are raising capital, all publicly held companies must observe a variety of disclosure and related requirements flowing in large part from securities statutes, rules, and policies. Failures to comply can result in highly consequential private litigation and public enforcement. Broadly speaking, federal securities regulation is displacing state corporate law as the primary legal influence on how publicly held corporations function and is also a focal point for the governance of financial markets. Topics will include the preparation of disclosure documents (including for initial public offerings), exemptions from disclosure requirements, and liability under anti-fraud rules. This course will also consider such related matters as how market forces influence corporate governance and how financial advances (such as the efficient markets hypothesis) and financial innovation are affecting corporations, investors, and capital markets. No prior business or financial background whatsoever is required. The only prerequisite is: Business Associations or Business Associations (Enriched).

Virtually any raising of capital implicates the securities laws. The goal of this course, then, is for students to learn the mechanics of public and private offerings of securities, and to understand the reporting and disclosure requirements that issuing securities entails. This course is particularly important for students who expect to work either in business litigation or transactional law. Topics include public offerings, exempt (i.e., private) offerings, public company regulation and exemption, and, to the extent time permits, secondary market issues such as securities fraud, insider trading, and the regulation of financial intermediaries (such as broker-dealers and investment advisers). Please be aware that this course makes use of economics and math (this is not an arbitrary imposition: courts deciding securities cases make use of economics and math, such as net present valuation and the Efficient Capital Markets Hypothesis). No prior background, beyond a reasonable high school education, in these areas is required -- concepts will be introduced as needed -- although a willingness to engage economics and math is absolutely necessary. Absent special circumstances, students are strongly encouraged to have completed “Business Associations” or “Business Associations (Enriched)” before taking this course.

This course is intended for students in their third years at the School of Law.  Although not a requirement to register for the course, it would be ideal for students taking the course to have completed the basic Oil and Gas Law course.  Students taking the course will also likely find it helpful to have completed the Business Associations and Federal Income Taxation courses.   

This course will offer students detailed practical exposure to the manner in which complex acquisition and disposition (“A&D”) transactions are structured, documented, and consummated.  Since the instructor’s practice has focused, for more than 45 years, on energy-related transactions, the template transaction for the course will be the sale of a substantial package of upstream oil and gas assets.  During the 14 class sessions, we will cover a diverse array of topics, including: (a) basic contract drafting principles; (b) transaction structuring; (c) the structure and content of common agreements preliminary to the sale transaction, such as confidentiality agreements and letters of intent; and (d)  a deeper dive into various aspects of the asset purchase and sale agreement (“PSA”), including (i) identifying and describing the assets to be sold, (ii) determining and adjusting the purchase price, (iii) the obligations ordinarily assumed by the buyer and those retained by the seller, (iv) common representations and warranties, (v) the different types of fraud and how parties try to insulate themselves from resulting liability, (vi) termination of the PSA for failure to satisfy the conditions precedent, (vii) post-closing indemnity obligations, and (viii) categories of damages and proper structuring of damages limitations provisions.

Come explore emerging space-related issues currently under discussion internationally and domestically! The course will blend lecture, discussion, and group work in a seminar-like format. We will examine the following topics:

Module 1: Lecture, Introduction to the course and the basics of space law

Norms Development: Bottom up, top down, and points in the middle

Bilaterals, Multilaterals, and the role of consensus  

Module 2: Discussion of readings and lectures

Module 3: Application to Emerging Issues

teams to pick from a list of topics and prepare a mixed media presentation.

Possible topics:

The Yin & Yang of Space: Peaceful Purposes and National Security issues

Can we get there from here? Orbital Debris, Space Situational Awareness, and Space Traffic Management

Micro -> Macro: very small sats and very large constellations

In Situ Resource Utilization  

Students will be graded on group presentations and an exam in Canvas.

This course will concentrate primarily on the legal regulation of major professional team sports in the United States. Topics will include contract enforcement, player movement and restraints, team movements and restraints, the powers of the commissioner, and the (limited) regulation of agents. To a much lesser extent the course will deal with NCAA regulation (especially eligibility and gender equity) and individual sports. Labor Law and Antitrust are helpful, but not required. This is a course best taken in the student's third year. A knowledge of (and enthusiasm for) sports will be assumed.

The Startup Consulting Practicum (formerly known as the TVL Practicum) is an intensive lecture, case study and project-based course that focuses on developing skills for researching business idea viability and delivering compelling presentations. Students in this course are divided into cross-disciplinary teams that are matched with Texas-based startup companies to help tackle their business challenges. Students participate in semester-long consulting projects solving important problems alongside the company’s founders in a hands-on approach using the academic foundations of entrepreneurship and business modeling. Students learn valuable skills such as project management, client relations, team collaboration, market validation, competitive research, price modeling and business analysis.

Students must submit a complete application, attend an information session and be selected to participate in the Consulting Startup Practicum. Full course requirements and qualifications will be reviewed with students during information sessions offered before the registration period for each semester.

This is a full semester course that can only be taken for a grade. The course requires meeting during the scheduled class time and work to be conducted in between classes. For more information and details on this course, visit the website (https://www.mccombs.utexas.edu/centers-initiatives/brumley-institute/startup-practicum/).

When we speak of "government" in the law school curriculum, we too often forget that public governments in the United States include those of the 50 states and their more than 90,000 political subdivisions: 3,000 counties, 19,500 municipal corporations, 16,000 townships, 12,800 school districts, and 38,000 special districts. This offering focuses on America's sub-national governments in discussing questions such as: How should our local "communities" be defined in practice, and who should decide? What is and should be the relationship that states and localities have with the federal government, their citizens, and other states and localities? Which level of government (if any) should provide a particular good or service or regulate activity in a particular area? How should the goods and services provided by states and localities be paid for, and who should decide? In addition to traditional legal materials such as cases, statutes, ordinances, constitutional provisions, and law review articles, we will draw upon materials from a wide range of other disciplines: political theory, public choice theory, public finance, and political economy. Aspiring governors, senators, mayors, city council members, state attorneys general, and school board members welcome! Written requirements: One short paper (4-5 pages) and a 3-hour, in class, essay examination. Casebook: L. Baker, C. Gillette & D. Schleicher, Local Government Law: Cases and Materials (Foundation Press; 6th edition 2021). Prerequisite: None; 4 hours credit.

This course introduces the basic statistical concepts economists and social scientists use to analyze data to provide statistical evidence. The course is intended to provide a sound foundation of introductory-level quantitative reasoning while using real-world examples to illustrate concepts and applications. With the emergence of big data and advances in algorithmic computing, lawyers are being asked more often to understand empirical methods, whether they are preparing a motion or brief, cross-examining experts in the courtroom, or evaluating the effect of a law in a legal or policy setting. In this course, students will learn how to deal with conflicting statistical evidence, use statistical evidence to evaluate the application of laws or policies, and how to deal with expert witnesses providing statistical evidence. The goal of this course is to equip future practicing lawyers with the skills necessary to be an informed consumer of statistics. The course does not require any background in math or statistics; however, students may feel better suited with a basic understanding of algebra.

In Taking Depositions and Handling Expert Witnesses, students will learn how to prepare for, take and defend depositions of lay and expert witnesses. This is a skills-based course where students will actually take depositions and work with experts. This is a short course and will move quickly and have strict attendance policies.

Three key components of the class are:

• Prepare and evaluate expert reports;
• Preparing and presenting expert witnesses in hearings, depositions, and trial
• Taking depositions of “real” expert witnesses (psychiatric residents at Dell Medical School; non-law students)

Suggested prerequisites or concurrent: Evidence, Advocacy Survey, ADR courses.

This class will include both academic introductions to technology law and hands-on, practical exercises that will accustom students to typical work handled by (or for) in-house counsel at technology companies. Areas of focus include: (1) Intellectual property principles and clauses arising in technology transactions, (2) Types of licensing and commercial agreements common in technology, (3) Drafting and negotiating technology agreements with a focus on key terms and conditions, (4) Mergers & acquisitions (an introduction and basics), and (5) Privacy, cybersecurity, social media, and other current topics in technology law. Class instruction will involve: (1) analysis and discussion of intellectual property and commercial issues, (2) analysis and discussion of example technology agreements, and (3) workshop exercises involving drafting and negotiating key clauses within technology agreements. A primary goal of this class is to expand the substantive business and legal knowledge of the students while providing practical deal-making skills easily transferrable to attorneys who support technology companies.

Cross-Listing The course is divided into three segments. The first segment introduces the “idea” of a war against terror, a notion that is widely thought to be nonsense. This idea is examined by focusing on developments in terrorism; in warfare; and in the changing nature of what counts as victory---that is, the objective of warfare. The second segment of the course is devoted to the discussion of the relationship between law and strategy in the domestic context. This discussion includes treatments of the US constitutional issues; developments in the practice of intelligence collection and analysis; a discussion of the ends and means justly available to governments; and an discussion of various approaches by which we might meet the challenge posed by 21st century, global terrorism. The third segment of the course explores the relationship between strategy and law in the international context. This segment discusses various US strategic doctrines; the idea of sovereignty in international law; proposals for global governance; and the difficult task of waging war in the three conflicting but related theatres of terror: the struggles to prevent market state terrorism, protect against gross diminution of humane conditions, and preclude the proliferation of weapons of mass destruction. The outcome of these struggles---the wars against terror-- will determine whether the new, emerging constitutional order of the market state will be composed of states of consent or states of terror.

This practice-oriented course involves the preparation of a hypothetical civil case for trial in Texas State Court, from initial pleading and motion practice, through written discovery, to taking fact and expert depositions, drafting motions for summary judgment and trial preparation, among other things. Professors Incerto and Oakes will be assisted by seasoned lawyers and state court judges, most of whom have decades of trial experience. Each class will cover one or more case development topics progressing towards trial, and will offer advice, observations and suggestions on case preparation requirements and strategy. The course is taught on a pass/fail basis. There is no final examination. Class attendance is mandatory, and a satisfactory level of performance on written assignments is required to pass the course. This course is best suited for 2nd and 3rd year students interested in state court litigation. Having completed state court procedure and evidence courses is a plus, but not a prerequisite.

Texas Civil Procedure is an advanced litigation course focusing on the Texas Rules of Civil and Appellate Procedure. The course covers pretrial, trial, and appellate procedure in Texas state courts. Unlike first-year Civil Procedure, which focuses on the federal rules and basic concepts, Texas Civil Procedure studies the distinctive Texas rules from an advanced perspective. If you are planning a litigation practice in Texas, this course is essential. The course also helps you prepare for the civil procedure portions of the Texas bar exam. Students may find it helpful to take the course during their second year, before their summer work experience and before they take advanced advocacy courses.

This course divides the semester into roughly four parts.  In the first quarter of the semester, we start by examining oil production, globally, within OPEC and OPEC+, the US, and particularly in Texas.  We will discuss the Texas Railroad Commission (RRC), its constitutional and statutory underpinnings, along with noteworthy Texas Supreme Ct. cases involving the RRC and important oil, natural gas, and pipeline-related issues.  We finish this section by examination of interesting RRC rules and orders, including those related to disposal wells, production sharing agreements/allocation wells, spacing rules, and the Mineral Interest Pooling Act. Finally, we will examine Opiela v. Railroad Commission of Texas, No. 23-0772, Petition for Review at SCOTX. 

The second quarter of the semester explores energy delivery in Texas, particularly regulated transmission and distribution (TDU) electric utilities and natural gas local distribution companies (LDCs). We examine the elements of a successful rate case and review numerous cases examining Public Utility Commission of Texas (PUCT), and RRC, treatment of various elements of a rate case. We'll also examine the competitive electric market in ERCOT, and discuss several court cases arising from the events of Winter Storm Uri, including Luminant v. Public Utility Commission of Texas, No. 23-0231, decided by SCOTX 6/14/24, and ERCOT v. Panda Power, No. 22-0196, and CPS v. ERCOT, SCOTX opinion delivered 6/23/23.

In the third quarter, we will discuss renewable energy infrastructure development in Texas, and examine a major transmission development Docket No. 38354, the "Hill Country CREZ line." We'll also discuss the potential for geothermal energy development in Texas.

The final quarter of the semester will focus on federal cases related to energy and the environment.  In particular, we will examine the role of Chevron deference (Chevron v. NRDC, 467 U.S. 837, 1984),  as interpreted by past and present Supreme Courts, in federal agency (i.e. EPA) decision making, including the recent Loper Bright Enterprises v. Gina Raimondo, Secretary of Commerce, SCOTUS decision.   

We may occasionally have guest lecturers from the RRC, PUCT, and ERCOT. 

Your performance in this course will be evaluated on the basis of an open book, take home, mid-term exam (administered over spring break), a closed book, take home, final exam (administered during finals weeks, with 24 hours to compete), and in-class active participation; the percentages are 30%, 60% and 10%, respectively.  There is no textbook for this class.  Reading assignments and discussion material will be posted on Canvas in advance of the pertinent class. You should assume that the reading requirement is moderate.  No more than two absences will be allowed (without express prior approval of the instructor.)  

This course provides an overview of Texas Marital Property Law with a focus on practical aspects of representation during a divorce. Substantive topics include characterization, valuation, and division of the marital estate at the time of divorce, along with marital property agreements such as Premarital Agreements, Partition or Exchange Agreements, and Separate Property Conversion Agreements.

Class Description This class should be considered essential for any student intending to practice criminal law, whether as a prosecutor or defense attorney. In the 21st century, the vast majority of requests for criminal investigative warrants or subpoenas seek to obtain digital data. The law governing these requests all stems from the Fourth Amendment, written before any of this data was even imaginable. This one-hour class will provide students with an overview of the constitutional, legal, and technological issues that judges and practitioners face when submitting, reviewing and challenging these search and surveillance requests. The seminar will include lectures by the professors, guest lectures by legal and technical experts (such as FBI forensic specialists, in-house counsel at the large tech firms that hold the sought-after data, and attorney representatives from main Justice and the Electronic Frontier Foundation). Assessment Method The class will be offered Pass/Fail. Student assessment will have two components: (1) class participation throughout the course and (2) three short writing assignments. The writing assignments will require the students to prepare memoranda (approx. 3-4 pages) addressing legal and practical questions raised by the presentations and materials discussed in class. Each assignment will ask students to consider an issue from a different perspective, corresponding to the perspectives of the guest speakers (the Department of Justice, the criminal defense bar, privacy advocates, and the tech firms). Each assignment will coincide with a guest speaker representing each of these interest groups.

This course is an introduction to how international law applies to hostile cyber activities by States and non-State actors during armed conflict.  Topics addressed range from cyber attack to characterization of persons taking part in armed conflict.  The course draws on the Tallinn Manual 2.0 project, which resulted in a restatement of the law drafted over seven years by an international group of experts. The instructor was one of the Experts that wrote the Manual.

Limits of liability and methods of establishing liability for intentional and unintentional injuries to persons or property.

This course will explore the doctrine, policy, and theory of trademark and unfair competition law. Our principal focus is the federal Lanham Act, although we will also touch on state law from time to time. Trademarks can include such things as words, slogans, logos, product shapes and product packaging, smells, sounds, and so on, provided they are capable of becoming unique identifiers of source. Specific topics to cover (depending on time) include how a party obtains trademark rights; the scope and limitations of trademark rights; trademark infringement and dilution; the nature of trademark defenses, and the right of competitors and the public to engage in unauthorized uses of marks for purposes such as description, parody and comparative advertising. Along the way, we will discuss some of the modern controversies over the expansion of trademark rights, including the rise of the "brand" and "branding" over the past 25 years or so.

Transactions focuses on real contracts with real risks. This course includes a strong writing component. There will be an ungraded mid-term writing assignment and an in-class final exam. We will study annotated payment assurances such as provided by a prominent law firm. We will also study a merger and a joint venture agreement as developed by committees of the American Bar Association. We may also study several other agreements. So, this course could be called "everything you wanted to know about commercial liabilities, but were afraid to ask." All of these documents are complex and many of them are lengthy. For example, the Joint Venture Agreement and Merger Agreement are each over one hundred (100) pages. We will study the liabilities in each agreement. Other than liability, we do not study commercial terms. This class is unique. In class participation is not optional. If you are not amenable to completing regular homework assignments with your classmates, please consider registering for another class.

This class has two primary purposes. It will be a course in U.S. Constitutional law that focuses primarily on the allocation of powers with limited attention to the protection of individual liberties. The second purpose of the course is to have foreign lawyers experience how most U.S. students experience the study of constitutional law. For example, there are very few lectures. I teach primarily using the Socratic method. That means that students must come to class well prepared and will be called upon and engage with me and their classmates.