Digital Commons Network^™

New Amateurism, Michael Mccann

Texas A&M Law Review

This Article proposes a new model for the legal and economic relationship between college athletes and their schools. The National Collegiate Athletic Association and its member conferences and schools are besieged with legal challenges over rules that restrain the capacity of athletes to earn compensation for their athletic labor and the commercial value of their identities. The legal challenges are extensive and scrutinize membership rules under labor, employment, and antitrust laws. The days of “amateurism” and the “student-athlete” enjoying judicial and administrative deference are over. For college sports to maintain a character distinct from professional leagues, university athletic programs that …

Off The Guardrails: Opportunities And Caveats For Name Image Likeness And The [Student] Athlete Influencer, Maureen Weston

Texas A&M Law Review

The landscape of college athletics is undergoing a seismic shift with the advent of Name, Image, and Likeness (“NIL”) opportunities for student-athletes. In Off the Guardrails: Opportunities and Caveats for Name Image Likeness and the [Student] Athlete Influencer, Professor Maureen A. Weston examines the evolving terrain, tracing the journey from the National Collegiate Athletic Association’s (“NCAA’s”) rigid amateurism policies to the current era of NIL legislation and its implications. This Article navigates the complex intersection of athlete empowerment, entrepreneurial ventures, and regulatory challenges, shedding light on the multifaceted opportunities and risks for athletes in the burgeoning NIL market.

Delving …

The Limits Of Immigrant Resilience, Huyen Pham, Natalie C. Cook, Ernesto Amaral, Raymond Robertson, Suojin Wang

Faculty Scholarship

Economists have identified important adaptations that immigrant workers have made to weather economic crises. During times of economic contraction, immigrant workers have moved across industries or geographical locations, downshifted to part-time work, and accepted lower wages to stay employed. Evidence from the Great Recession (2007–2009) shows the benefits of that economic resilience: immigrant workers were more likely than native-born workers to remain continuously employed, to have shorter periods of unemployment when they lost their jobs, and to regain jobs more quickly in the recovery period. Of course, these adaptations had significant personal costs for immigrant workers and their families, but …

Filling The Red State Federal Judicial Vacancies, Carl Tobias

Texas A&M Law Review

District vacancies without nominees that plague red jurisdictions deserve emphasis in this Essay for several reasons. First, there are myriad district court jurists who trigger greater numbers of empty posts when they assume senior status, retire, or die, which triggers more issues. Legislators have created 677 active trial court positions, which dwarf the 179 active court of appeals judicial posts. The trial courts are tribunals of last resort for most cases; their numerous jurists are the only court members that many litigants encounter, and significantly more district court openings lack nominees. In contrast, appellate courts explicitly articulate considerable policy, include …

Negotiating Police Reform, Cynthia Alkon

Faculty Scholarship

In the summer of 2020, after the murder of George Floyd, the national conversation around police reform intensified and was part of a conversation with students at Texas A&M University School of Law. Students wanted more discussion and teaching about police, police misconduct, police reform, and defunding the police. Following those discussions, I created a simulation on local level police reform that, as of this writing, I have used twice in my negotiation class. Simulations are helpful teaching tools in a variety of settings, including law schools. Simulations can be particularly useful to help students discuss difficult topics in different …

Understanding 303 Creative Llc In A Polycentric Constitutional World, Meg Penrose

Faculty Scholarship

The evolution of rights following Obergefell is not over. Creative 303 LLC marked a new phase in the ongoing legal challenges over the rights and ceremonies attending same-sex marriage. This Essay addresses the anticipated limits of 303 Creative LLC.

The Essay proceeds in three parts. First, how does 303 Creative LLC impact government employees? What rights, if any, should government employees be able to raise in light of 303 Creative LLC? Second, what does 303 Creative LLC mean for private marketplace vendors engaging in expressive commerce? Vendors, particularly wedding vendors, often create unique items for weddings. Will the law focus …

Adoption As Substitute For Abortion?, Malinda L. Seymore

Faculty Scholarship

In Dobbs v. Jackson Women’s Health, Justice Samuel Alito relied on adoption as part of the justification for holding that abortion is not constitutionally protected: “States have increasingly adopted ‘safe haven’ laws, which generally allow women to drop off babies anonymously; and that a woman who puts her newborn up for adoption today has little reason to fear that the baby will not find a suitable home.” Using adoption as an adequate substitute for abortion is a long-standing strategy for the antiabortion movement; but it is often embraced by pro-choice advocates as well. This position is supportable only if the …

Critical Race Theory Bans And The Changing Canon: Cultural Appropriation In Narrative, Susan Ayres

Faculty Scholarship

Thirty-five states have enacted critical race theory bans at the level of elementary and secondary public education, and seven states have extended these to the university level. One way to resist these attempts to repress a healthy democracy by whitewashing history is through a pedagogy of antiracism, including literary works. The question of what that would look like involves questions of cultural appropriation, which occurs when one takes from another culture, such as a writer creating a narrative about a character outside of the writer’s cultural identity. This Article considers the story of Ota Benga, brought from the Congo to …

Self-Defense And Political Rage, Erin Sheley

Texas A&M Law Review

This Article considers how American political polarization and the substantive issues driving it raise unique challenges for adjudicating self-defense claims in contexts of political protest. We live in an age where roughly a quarter of the population believes it is at least sometimes justifiable to use violence in defense of political positions, making political partisans somewhat more likely to pose a genuine threat of bodily harm to opponents. Furthermore, the psychological literature shows that people are more likely to perceive threats from people with whom they politically disagree and that juries tend to evaluate reasonableness claims according to their own …

The Climate Moratorium, Keith H. Hirokawa, Cinnamon P. Carlarne

Texas A&M Law Review

Climate change is our new reality. The impacts of climatic changes, including massive forest fires, floods, drought, severe storms, saltwater intrusion, and the resulting migration of people displaced by such impacts, will continue to ravage communities across the nation into the foreseeable future. In the meantime, communities continue to expand and growth continues unabated in many of the most climate-impacted areas. Given that most communities are unprepared for the onslaught of climate disasters and many continue to increase existing community vulnerabilities through unsustainable growth and development practices, we need legal tools that will provide space to engage in effective adaptation …

Left Behind: Funding Climate Action In The Global South, Chinonso Anozie

Texas A&M Law Review

Global clean energy transition envisions zero greenhouse gas emissions by 2050, as set by the United Nations. Consequentially, developed economies have made giant strides in reducing greenhouse gas emissions and achieving full decarbonization. However, the opposite remains true in the Global South, lagging in financing its climate action. Despite being disproportionately impacted by climate change, financial efforts by developed economies and the Global South have failed in placing the latter’s countries at par with clean energy investments of developed countries. Absent adequate financing of climate action in the Global South, the net zero goal will be nothing but a mirage. …

The Perennial Eclipse: Race, Immigration, And How Latinx Count In American Politics, Rachel F. Moran

Faculty Scholarship

In 2016, the U.S. Supreme Court decided Evenwel v. Abbott, a case challenging the use of total population in state legislative apportionment as a violation of the Equal Protection Clause. The plaintiffs sued Texas, alleging that the State impermissibly diluted their voting power because they lived in areas with a high proportion of voting-age citizens. When total population was used to draw district lines, the plaintiffs had to compete with more voters to get their desired electoral outcomes than was true for voters in districts with low proportions of voting-age citizens. The Court rejected the argument, finding that states enjoy …

The Motivation Paradox: Exploring Copyright’S Assumptions About Creativity And The Allocation Of Creative Resources, Alina Ng

Texas A&M Journal of Property Law

Copyright is instrumental in promoting the progress of science by encouraging authors and other creators to produce and disseminate creative works by granting them an exclusive property right over the creative resources they produce. However, only some copyrighted works correlate with this goal. Some works do not promote a better society, while others harm society’s well-being. The existence of these works demonstrates that the legal structures in copyright law are somehow encouraging the production of works that do not correlate with the goals of progress. One reason might be that the law has not adequately defined the word “progress.” The …

Unequal Land: Towards Full Recognition Of Indigenous People’S Religious Rights, Emily Campbell

Texas A&M Journal of Property Law

Indigenous people face disparate treatment regarding religious free-exercise claims in the United States court system. Specifically, courts misconstrue native religious practices and hold native religious practitioners to a higher standard of proof than practitioners of mainstream religions in their free-exercise claims. This Article analyzes the history of oppression of indigenous people in the United States and the congressional intent to remedy such oppression through legislation. Further, this Article argues that despite Congress’s efforts to remedy the oppression of indigenous peoples, courts still utilize a problematic analysis of indigenous free-exercise claims. To resolve the inconsistent treatment between native and mainstream religious …

Keeping Up With The Joneses: Texas’ Nil Battle For Student-Athletes, Stephanie Garner

Texas A&M Journal of Property Law

Starting in 2021, college athletes could earn financial compensation from their name, image, and likeness (“NIL”). With the change in laws, the National Collegiate Athletic Association (“NCAA”) created an interim regulation for states to follow. After the Supreme Court decision, some states’ trigger laws went into effect, some states made new NIL regulations, and some states continued to follow the regulation set out by the NCAA. With all these laws and no federal regulation, each state stands on different footing. In Texas, a restrictive NIL statute will affect its recruiting for years unless adjusted. This Comment suggests improvements to the …

The Promise And Perils Of Tech Whistleblowing, Hannah Bloch-Wehba

Faculty Scholarship

Whistleblowers and leakers wield significant influence in technology law and policy. On topics ranging from cybersecurity to free speech, tech whistleblowers spur congressional hearings, motivate the introduction of legislation, and animate critical press coverage of tech firms. But while scholars and policymakers have long called for transparency and accountability in the tech sector, they have overlooked the significance of individual disclosures by industry insiders—workers, employees, and volunteers—who leak information that firms would prefer to keep private.

This Article offers an account of the rise and influence of tech whistleblowing. Radical information asymmetries pervade tech law and policy. Firms exercise near-complete …

Expanding The Ban On Forced Arbitration To Race Claims, Michael Z. Green

Faculty Scholarship

When Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“EFASASHA”) in March 2022, it signaled a major retreat from the Supreme Court’s broad enforcement of agreements to force employees and consumers to arbitrate discrimination claims. But the failure to cover protected discriminatory classes other than sex, especially race, tempers any exuberance attributable to the passage of EFASASHA. This Article prescribes an approach for employees and consumers to rely upon EFASASHA as a tool to prevent both race and sex discrimination claims from being forced into arbitration by employers and companies. This approach relies upon procedural …

Charging Abortion, Milan Markovic

Faculty Scholarship

As long as Roe v. Wade remained good law, prosecutors could largely avoid the question of abortion. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has now placed prosecutors at the forefront of the abortion wars. Some chief prosecutors in antiabortion states have pledged to not enforce antiabortion laws, whereas others are targeting even out-of-state providers. This post-Dobbs reality, wherein the ability to obtain an abortion depends not only on the politics of one’s state but also the policies of one’s local district attorney, has received minimal scrutiny from legal scholars.

Prosecutors have broad charging discretion, …

Esg, Public Pensions, And Compelled Speech, Mark R. Kubisch

Texas A&M Law Review

Investing based on Environmental, Social, and Governance (“ESG”) principles has dramatically increased in recent years. Many institutional investors— including public pension funds funded by mandatory contributions from government employees—now incorporate ESG principles into their investment and engagement strategies even though certain aspects of ESG, such as investing to reduce carbon emissions, are politically controversial. Over this same period, courts have reaffirmed that the First Amendment protects individuals from being compelled to associate with or to subsidize the speech of third parties. Indeed, applying this compelled speech doctrine, the Supreme Court recently overruled a forty-year-old precedent that allowed states to force …

Time To Heal: Trauma's Impact On Rape & Sexual Assault Statutes Of Limitations, Jillian Miller Purdue, Fredrick E. Vars

Texas A&M Law Review

Short statutes of limitations for sex crimes ask the impossible of many victims: report the crime before they have recovered from the trauma. Perpetrators go free as a direct result of the injury they caused. Nearly a third of victims of rape and sexual assault have PTSD during their lifetimes. PTSD is associated with three symptoms pertinent to reporting a crime: avoidance coping (avoiding distressing thoughts, feelings, or reminders of the attack), dissociative amnesia (forgetting important or all aspects of the attack), and depression. These symptoms all affect a victim’s psychological ability to report a crime before a short statute …

The Consequences Of Systemic Racism, Richard Delgado

Texas A&M Law Review

Book Review

A Crazy Quilt: Infanticide In The United States, Susan Ayres

Faculty Scholarship

This chapter builds on previous research to present a sampling of cases in the US, primarily in the twenty-first century, in order to show the harshness and disparity in criminal charges, defences and sentences. The broad term ‘infanticide’ is used for child-murder cases, and the more specific term ‘neonaticide’ is used for the killing of a child in the first 24 hours after birth. This chapter also describes the more recent use of genetic genealogy to solve cold cases of neonaticide. It concludes by considering how the absence of an infanticide offence and expanded defences results in an incoherent, unjust …

Silencing Litigation Through Bankruptcy, Pamela Foohey, Christopher K. Odinet

Faculty Scholarship

Bankruptcy is being used as a tool for silencing survivors and their families. When faced with claims from multiple plaintiffs related to the same wrongful conduct that can financially or operationally crush the defendant over the long term—a phenomenon we identify as onslaught litigation—defendants harness bankruptcy’s reorganization process to draw together those who allege harm and pressure them into a swift, universal settlement. In doing so, they use the bankruptcy system to deprive survivors of their voice and the public of the truth. This Article identifies this phenomenon and argues that it is time to rein in this destructive use …

The Ever-Shifting Ground Of Pretrial Detention Reform, Jenny E. Carroll

Faculty Scholarship

In the past six decades, pretrial detention systems have undergone waves of reform. Despite these efforts, pretrial jail populations across the country continue to swell. The causes of such growth in jail populations are difficult to pinpoint, but some are more readily apparent: Fear over rising crime rates, judicial reluctance to release accused persons, and monetary burdens associated with release have all contributed to increased detention pretrial across criminal legal systems in the United States. This article examines various pretrial detention reform efforts and highlights the need for greater research in the area.

Policing Protest: Speech, Space, Crime, And The Jury, Jenny E. Carroll

Faculty Scholarship

Speech is more than just an individual right—it can serve as a catalyst for democratically driven revolution and reform, particularly for minority or marginalized positions. In the past decade, the nation has experienced a rise in mass protests. However, dissent and disobedience in the form of such protests is not without consequences. While the First Amendment promises broad rights of speech and assembly, these rights are not absolute. Criminal law regularly curtails such rights—either by directly regulating speech as speech or by imposing incidental burdens on speech as it seeks to promote other state interests. This Feature examines how criminal …

Bending The Rules Of Evidence, Edward K. Cheng, G. Alexander Nunn, Julia Simon-Kerr

Faculty Scholarship

The evidence rules have well-established, standard textual meanings—meanings that evidence professors teach their law students every year. Yet, despite the rules’ clarity, courts misapply them across a wide array of cases: Judges allow past acts to bypass the propensity prohibition, squeeze hearsay into facially inapplicable exceptions, and poke holes in supposedly ironclad privileges. And that’s just the beginning.

The evidence literature sees these misapplications as mistakes by inept trial judges. This Article takes a very different view. These “mistakes” are often not mistakes at all, but rather instances in which courts are intentionally bending the rules of evidence. Codified evidentiary …

Latinas In The Legal Academy: Progress And Promise, Raquel E. Aldana, Emile Loza De Siles, Solangel Maldonado, Rachel F. Moran

Faculty Scholarship

The 2022 Inaugural Graciela Oliva ́rez Latinas in the Legal Academy (“GO LILA”) Workshop convened seventy-four outstanding and powerful Latina law professors and professional legal educators (collectively, “Latinas in the legal academy,” or “LILAs”) to document and celebrate our individual and collective journeys and to grow stronger together. In this essay, we, four of the Latina law professors who helped to co-found the GO LILA Workshop, share what we learned about and from each other. We invite other LILAs to join our community and share their stories and journeys. We hope that the data and lessons that we share can …

"They Don't Know What They Don't Know": A Study Of Diversion In Lieu Of Lawyer Discipline, Leslie C. Levin, Susan Saab Fortney

Faculty Scholarship

Lawyer misconduct can have devastating consequences for clients. But what is the appropriate regulatory response when lawyers make less serious mistakes? For almost thirty years, jurisdictions have offered some lawyers diversion in lieu of discipline. Diversion is intended to help educate lawyers or treat those with impairments so that they do not reoffend. Yet remarkably little is known about how diversion operates, whether it is used appropriately, and how well it seems to work. This Article addresses these questions. It draws on the limited published data and on interviews with disciplinary regulators in twenty-nine jurisdictions about their use of diversion. …

Balancing The Inequities In Applying Natural Property Rights To Rights In Real Or Intellectual Property, Lolita Darden

Texas A&M Journal of Property Law

Eric Claeys’s book, Natural Property Rights, introduces a Lockean-based theory of interest-based natural property rights. Central to Claeys’s theory are the concepts of justified interests and productive use. A justified interest, Claeys writes, exists when an individual demonstrates a stronger interest in a resource than anyone else in the community and uses the resource productively in a manner that is “intelligent, purposeful, value-creating, . . . sociable,” and leads to survival or flourishing. Claeys’s theory demonstrates “how a standard justification for property gets implemented in practice” and how a community’s “goods” build on the individual’s goods.

Claeys’s community “goods” focus, …

Comparing & Contrasting Economic And Natural Law Approaches To Policymaking, Eric Kades

Texas A&M Journal of Property Law

Eric Claeys’s monograph, Natural Property Rights, offers a comprehensive and thoughtful articulation of a general theory of property rights rooted in the natural law tradition. This detailed review compares Claeys’s work with the consequentialist law and economics perspective on property. After contrasting their objectives, assumptions, and methodologies this article concludes that, unlike more absolutist approaches, Claeys’s flavor of natural property rights places a modicum of weight on the welfare effects central to economic analysis. This restrained nod in the direction of practicality, however, does not eliminate some of the long-known weaknesses of natural law. Perhaps the most glaring gap …