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Articles 1 - 30 of 269
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The Ripple Effects Of Dobbs On Health Care Beyond Wanted Abortion, Maya Manian
The Ripple Effects Of Dobbs On Health Care Beyond Wanted Abortion, Maya Manian
SMU Law Review
The Supreme Court’s momentous decision in Dobbs v. Jackson Women’s Health Organization to overturn fifty years of precedent on the constitutional right to abortion represents a sea of change, not only in constitutional law, but also in the public health landscape. Although state laws on abortion are still evolving after Dobbs, the decision almost immediately wreaked havoc on the delivery of medical care for both patients seeking abortion care and those not actively seeking to terminate a pregnancy. This Article also argues that focusing the public’s attention on the deleterious consequences of abortion bans for health care beyond wanted abortion …
State Constitutional Rights, State Courts, And The Future Of Substantive Due Process Protections, Jonathan L. Marshfield
State Constitutional Rights, State Courts, And The Future Of Substantive Due Process Protections, Jonathan L. Marshfield
SMU Law Review
By most accounts, the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization signaled a broader stagnation (and perhaps retrenchment) of federal substantive due process protections. As a result, there is now great interest in the role that state constitutions and courts might play in protecting and expanding reproductive and privacy rights. This Article aims to place this moment in state constitutional development in broader context. It makes two core claims in this regard. First, although state courts are free to interpret state constitutions as providing broader individual rights protections than those contained in the Federal Constitution, state constitutions …
Algorithmic Destruction, Tiffany C. Li
Algorithmic Destruction, Tiffany C. Li
SMU Law Review
Contemporary privacy law does not go far enough to protect our privacy interests, particularly where artificial intelligence and machine learning are concerned. While many have written on problems of algorithmic bias and data deletion, this Article introduces the novel concept of the “algorithmic shadow” and explains the new privacy remedy of “algorithmic destruction,” also known as algorithmic disgorgement or machine unlearning. The algorithmic shadow describes the persistent imprint of training data that has been fed into a machine learning model and used to refine that machine learning system. This shadow persists even if data is deleted from the initial training …
Ai, Equity, And The Ip Gap, Daryl Lim
Ai, Equity, And The Ip Gap, Daryl Lim
SMU Law Review
Artificial intelligence (AI) has helped determine vaccine recipients, prioritize emergency room admissions, and ascertain individual hires, sometimes doing so inequitably. As we emerge from the Pandemic, technological progress and efficiency demands continue to press all areas of the law, including intellectual property (IP) law, toward incorporating more AI into legal practice. This may be good when AI promotes economic and social justice in the IP system. However, AI may amplify inequity as biased developers create biased algorithms with biased inputs or rely on biased proxies. This Article argues that policymakers need to take a thoughtful and concerted approach to graft …
The Case For The Abolition Of Criminal Confessions, Guha Krishnamurthi
The Case For The Abolition Of Criminal Confessions, Guha Krishnamurthi
SMU Law Review
Confessions have long been considered the gold standard of evidence in criminal proceedings. But in truth, confession evidence imposes significant harms on our criminal justice system, through false convictions and other violations of defendants’ due process and moral rights. Moreover, our current doctrine is unable to eliminate or even curb these harms.
This Article makes the case for the abolition of confession evidence in criminal proceedings. Though it may seem radical, abolition is sensible and best furthers our penological goals. As a theoretical matter, confession evidence has low probative value, but it is prejudicially overvalued by juries and judges. Consequently, …
When Time Stands Still: Eliminating Immigration “Death Sentences”, Lori A. Nessel
When Time Stands Still: Eliminating Immigration “Death Sentences”, Lori A. Nessel
SMU Law Review
The nation prides itself on the notion of rebirth—the ideal that one can leave their past behind, come to the United States, and seize the opportunities available to advance and remake oneself. Yet, when it comes to immigration law, neither the passage of time nor a life full of positive equities ameliorates past wrongdoing or allows for future opportunities. In the words of the Senate Subcommittee when Congress permanently removed the statute of limitations for deportation from the Immigration and Nationality Act in 1952, “If the cause for exclusion existed at the time of entry, it is believed that such …
The Unexpected Consequences Of Automation In Policing, Elizabeth E. Joh
The Unexpected Consequences Of Automation In Policing, Elizabeth E. Joh
SMU Law Review
This Article has two aims. First, it explains how automated decision-making can produce unexpected results. This is a problem long understood in the field of industrial organization, but identifying its effects in policing is no easy task. The police are a notoriously difficult institution to study. They are insular, dislike outsiders, and especially dislike critical outsiders. Fortunately, we have the benefit of a decade’s worth of experimentation in police use of automated decision-making and the resulting political backlash against some of these uses. As a result, some large urban police departments have undergone external investigations to see whether tools like …
Expanding Civil Rights To Combat Digital Discrimination On The Basis Of Poverty, Michele Estrin Gilman
Expanding Civil Rights To Combat Digital Discrimination On The Basis Of Poverty, Michele Estrin Gilman
SMU Law Review
Low-income people suffer from digital discrimination on the basis of their socio-economic status. Automated decision-making systems, often powered by machine learning and artificial intelligence, shape the opportunities of those experiencing poverty because they serve as gatekeepers to the necessities of modern life. Yet in the existing legal regime, it is perfectly legal to discriminate against people because they are poor. Poverty is not a protected characteristic, unlike race, gender, disability, religion or certain other identities. This lack of legal protection has accelerated digital discrimination against the poor, fueled by the scope, speed, and scale of big data networks. This Article …
Combatting Ai’S Protectionism & Totalitarian-Coded Hypnosis: The Case For Ai Reparations & Antitrust Remedies In The Ecology Of Collective Self-Determination, Maurice Dyson
SMU Law Review
Artificial Intelligence’s (AI) global race for comparative advantage has the world spinning, while leaving people of color and the poor rushing to reinvent AI imagination in less racist, destructive ways. In repurposing AI technology, we can look to close the national racial gaps in academic achievement, healthcare, housing, income, and fairness in the criminal justice system to conceive what AI reparations can fairly look like. AI can create a fantasy world, realizing goods we previously thought impossible. However, if AI does not close these national gaps, it no longer has foreseeable or practical social utility value compared to its foreseeable …
On The Broadness Of The Fourth Amendment, Janine Kim
On The Broadness Of The Fourth Amendment, Janine Kim
SMU Law Review
This Article considers the role of property rights in defining Fourth Amendment searches. Since United States v. Jones in 2012, the Supreme Court has relied on both privacy and property to determine whether a Fourth Amendment search has occurred. But recently, many of the Justices have expressed increasing skepticism about not only the effectiveness but also the appropriateness of safeguarding privacy. The 2018 case of Carpenter v. United States, which ruled that an individual’s cell site location information is protected under the Fourth Amendment, saw all four dissenters urging a larger role for property rights in the analysis of a …
Professor Roy Ryden Anderson, Jennifer M. Collins
Professor Roy Ryden Anderson, Jennifer M. Collins
SMU Law Review
No abstract provided.
Roy Ryden Anderson: A Tribute To An Smu Legend, C. Paul Rogers Iii
Roy Ryden Anderson: A Tribute To An Smu Legend, C. Paul Rogers Iii
SMU Law Review
No abstract provided.
The Racial Architecture Of Criminal Justice, Bennett Capers
The Racial Architecture Of Criminal Justice, Bennett Capers
SMU Law Review
One of the pleasures of contributing to symposia—especially symposia where each contribution is brief—is the ability to engage in new explorations, test new ideas, and offer new provocations. I do that now in this essay about race, architecture, and criminal justice. I begin by discussing how race is imbricated in the architecture of courthouses, the quintessential place of supposed justice. I then take race and architecture a step further. If we think of architecture expansively—Lawrence Lessig’s definition of architecture as “the physical world as we find it” comes to mind—then it becomes clear that race is also imbricated in the …
Beyond Transparency: Police Union Collective Bargaining And Participatory Democracy, Walter Katz
Beyond Transparency: Police Union Collective Bargaining And Participatory Democracy, Walter Katz
SMU Law Review
Police unions rose in power partially in response to the civil unrest in urban neighborhoods in the 1960s. As unions gained political power, critics argue that they have frequently stood as obstacles to accountability-related reforms. One vehicle of the exercise of such power is through
collective bargaining agreements negotiated between unions and public bodies representing cities and counties. Contracts that civilian policymakers negotiate with police unions shield officers from accountability for misconduct and excessive force. Through a lack of political will, expediency, and a lack of public transparency during negotiations, civilian leaders agree to contracts that, for example, erect obstacles …
Reforming State Bail Reform, Shima Baughman, Lauren Boone, Nathan Jackson
Reforming State Bail Reform, Shima Baughman, Lauren Boone, Nathan Jackson
SMU Law Review
We are waist-deep in the third wave of bail reform. Scholars, policy makers, and the public have realized that the short period of detention before trial creates ripple effects on a defendant’s judicial fate and has lasting impacts on our system of mass incarceration. Over 200 proposed bail bills are pending throughout the states. This is not the first period of bail reform in America—two previous waves of bail reform in the 1960s and 1980s have both ended in increased pretrial detention for defendants. Some of the recent efforts in the third wave of bail reform have also increased detention …
Power And Procedure In Texas Bail-Setting, Amanda Woog, Nathan Fennell
Power And Procedure In Texas Bail-Setting, Amanda Woog, Nathan Fennell
SMU Law Review
As advocates’, lawyers’, and legislators’ bail reform efforts intensify in Texas and throughout the country, we consider the limits of pretrial procedural protections when judges do not follow the law, access to courts is limited, and people do not have quality assistance of counsel. Given this reality in most bail-setting courts in Texas, formal procedural requirements, like mandating that bail-setting magistrates consider certain factors when making initial bail decisions, do not achieve their promise. More than a procedural or legal problem to be addressed, we consider the nation’s addiction to pretrial detention as one that was created by—and must be …
Victims’ Rights In The Diversion Landscape, Kay L. Levine
Victims’ Rights In The Diversion Landscape, Kay L. Levine
SMU Law Review
In this Article, I explore the practical and theoretical conflicts that might surface when the diversion movement and the Victims’ Rights Movement intersect. I focus on two possible sites of tension: victim input into the diversion offer and the victim’s right to receive restitution as a term of diversion. Protocols to give victims greater voice in the justice process have been a mainstay of the burgeoning Victims’ Rights Movement for the past several decades, but I argue that those protocols must be understood within (and thus limited by) the contexts of fiscal responsibility, compassion for the offender, and proportionality in …