Law Commons^™

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SMU Law Review

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Personal Benefit Has No Place In Misappropriation Tipping Cases, Merritt B. Fox, George N. Tepe

SMU Law Review

The Supreme Court’s decision in Salman v. United States left unanswered an important issue concerning the reach of Rule 10b-5’s prohibitions with respect to trades based on a tip of material inside information: in cases based on the misappropriation theory, is it necessary to show that the tipper enjoyed a personal benefit of which the trader was aware? The personal benefit test was originally developed in the context of tipping cases based on the classical theory of insider trading. The Supreme Court in Salman explicitly said that it was not reaching the matter of whether the test should be extended …

Will Fifty Years Of The Sec’S Disgorgement Remedy Be Abolished?, Roberta S. Karmel

SMU Law Review

SEC v. Texas Gulf Sulphur was the first case holding that equitable relief, and specifically disgorgement, can be obtained by the SEC in a federal court action for an injunction against insider trading. Such ancillary equitable relief has been obtained in numerous cases during the fifty years since Texas Gulf was decided. But, the continued availability of the remedy of disgorgement has been thrown into question by the recent Supreme Court case of Kokesh v. SEC, in which the Supreme Court held disgorgement to be a penalty for purposes of the federal statute of limitations. The Court identified, but …

Saving Grace: The Role Of Religious Organizations In Disaster Recovery And The Constitutionality Of Federal Funding To Rebuild Them, Cheslea Till

SMU Law Review

Natural disasters are on the rise and religious organizations, the same organizations that came to victims’ rescue in the wake of the last natural disaster, are often left in the path of destruction. Under President Trump’s administration, FEMA recently amended its disaster assistance program to provide funding for religious organizations. Opponents argue this amendment is a violation of the Establishment Clause, while proponents argue the amended plan finally gives religious organizations the fair treatment they deserve. This new aid program needs to be modified and restricted. Though there is clear precedent to support providing some Public Assistance funding to religious …

The Curious Origin Of Texas Pleading, Justice Jason Boatright

SMU Law Review

For 150 years, judges and legal scholars said that the Texas pleading system came from Spain. They explained that Mexico used a simple Spanish pleading system that English-speaking immigrants to Mexican Texas liked more than the complicated procedure they had known in the United States. After separating from Mexico, the story goes, Texas retained the Spanish system.

But that story is probably wrong. The Republic of Texas enacted its first pleading law in 1836. It does not look like Spanish pleading laws; it looks like an 1824 law written by Stephen F. Austin for his colony’s alcalde courts. Austin’s law …

Extraterritoriality And The Alien Tort Statute— Narrow Application Preserves Crucial Boundaries, Alicia Pitts

SMU Law Review

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Thinking Fast And Slow About The Concept Of Materiality, Mark J. Loewenstein

SMU Law Review

Determining whether, for securities law purposes, a misrepresentation or omission is material raises interesting questions. The Court of Appeals in SEC v. Texas Gulf Sulphur Co. provided some guidance on materiality, and the U.S. Supreme Court has weighed in several times in the past 50 years. This article first discusses what Texas Gulf Sulphur contributed to the doctrine of materiality, then briefly considers other dimensions of the doctrine, and finally moves to its thesis: The doctrine of materiality should take into account important psychological insights and heuristics that may affect the way that a fact finder decides whether a misrepresentation …

Remembering Professor Joseph Mcknight, Leland L. Coggan

SMU Law Review

No abstract provided.

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SMU Law Review

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Front Matter

SMU Law Review

No abstract provided.

The Statutory Authority For Court-Ordered Disgorgement In Sec Enforcement Actions, Donna M. Nagy

SMU Law Review

What empowers the U.S. Securities and Exchange Commission to seek, and federal district courts to order, the disgorgement of ill-gotten gains from securities law violators? The short answer, which stood virtually un- challenged for nearly forty-six years, is that federal courts may award disgorgement, at the request of the SEC, pursuant to the broad equitable powers that Congress conferred in the jurisdictional provisions of the federal securities laws. During the 2017 oral argument in Kokesh v. SEC, however, five Justices of the U.S. Supreme Court interjected statements ex- pressing varying degrees of skepticism. The tenor of the questions during …

The Icarus Syndrome: How Credit Rating Agencies Lost Their Quasi Immunity, Norbert Gaillard, Michael Waibel

SMU Law Review

Subsequent to the 2007–2008 subprime crisis, the SEC and the US Senate discovered that it was common practice for major credit rating agencies (CRAs) to produce inflated and inaccurate structured finance ratings. A host of explanations were posited on how this was able to happen from the “issuer pays” model of CRAs and conflicts of interest to underscoring the CRA’s regulatory license and their ensuing insulation from legal liability. Historically, credit ratings were akin to opinions. However, when courts started to consider structured finance ratings as commercial speech in the 2000s, CRAs became more vulnerable to litigation. This article studies …

Joseph W. Mcknight: Antiquarian Law Book Collector Extraordinaire, Gregory Ivy

SMU Law Review

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Shades Of Theology In Suits Affecting The Parent-Child Relationship: A Tribute Honoring The Memory Of Professor Joseph W. Mcknight, Dr. Beverly Caro Dureus

SMU Law Review

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Constructive Ambiguity And Judicial Development Of Insider Trading, Jill E. Fisch

SMU Law Review

The Texas Gulf Sulphur decision began what has become a fifty-year project of developing U.S. insider trading regulation through judicial law- making. During the course of that project, the courts developed a complex, fraud-based approach to determining the scope of liability. The approach has led, in many cases, to doctrinal uncertainty, a result that is reflected in the recent decisions in Newman, Salman, and Martoma.

In the face of this uncertainty, many commentators have called for a legislative solution. This article argues, however, that the true challenge of insider trading regulation is a lack of consensus about the appropriate scope …

A Texas Two-Step In The Right Direction—Looking Beyond Recent Legislation To Improve The Provision Of Special Education Services In Texas, Taylor Michals

SMU Law Review

This article analyzes the current state of the special education system in Texas following the 85th Legislative Session, focusing on the practical and legal implications of the limitation imposed by the Texas Education Agency in 2004 before analyzing Senate Bill 160, which requires Texas to remove the limitation on special education services, and its future impact on special education in Texas. Additionally, this article addresses Senate Bill 927, which outlined a plan to ensure that students who were previously denied services receive an adequate evaluation, why the legislation failed, and potential remedies for students who have been negatively impacted by …

Avoiding The Alien Tort Statute: A Call For Uniformity In State Court Human Rights Litigation, Alicia Pitts

SMU Law Review

For decades, the Alien Tort Statute (ATS) has played a valuable role in human rights litigation in U.S. courts. However, in recent years, the U.S. Supreme Court has limited the ATS’s effectiveness in a number of respects. In response to these decisions, many scholars have predicted that litigants will begin to evade the restrictive ATS jurisprudence by bringing traditional ATS cases in state courts. This comment reveals that this tactic has not become as prevalent as scholars predicted and evaluates the only two state court cases uncovered by the author’s research. This comment then explains why litigating would-be ATS cases …

“Heal Thyself.”—An Argument For Granting Asylum To Healthcare Workers Persecuted During The 2014 West African Ebola Crisis, Bethany Echols

SMU Law Review

This article argues for a change in United States asylum policy at a time when change is needed most. Those seeking asylum must prove that they fear persecution in their home country based on one of five protected categories and that their government is the persecutor or is unable to control the actions of the persecutors. Multiple articles have recognized that the “particular social group” is the most difficult category of asylum seeker to analyze. Not only do the standards for particular social groups (PSGs) vary among circuit courts, but judicial consistency is lacking.

This article focuses on a particular …

Richard Posner: A Class Of One, Robert C. Farrell

SMU Law Review

Judge Richard Posner, best known for his contributions to the field of law and economics, has also made an outsized contribution to another area of the law—the equal protection class-of-one claim. By some combination of happenstance and design, Posner was able to shape the class-of-one doctrine even where his views were inconsistent with Supreme Court precedent. The Supreme Court’s initial exposition of the doctrine had identified an equal protection violation when there was intentionally different treatment of similarly situated persons without a rational basis for the difference in treatment. Posner insisted that this language included within it a requirement that …

Rico Run Amok, John K. Cornwell

SMU Law Review

In 1970, Congress enacted RICO to eradicate organized crime in America. To enlist the help of private citizens in this effort, the statute included civil provisions providing treble damages for plaintiffs who proved that they were injured by a pattern of racketeering activity. As the decades passed, civil RICO dramatically expanded its reach, addressing misconduct in a diverse array of contexts, including high-profile suits against the Clinton Foundation and Trump University. This Article examines this evolution, focusing on three factors that have figured prominently in civil RICO’s runaway growth: the broad interpretation of what constitutes a RICO “enterprise”; the flexibility …

Policing Narrative, Tal Kastner

SMU Law Review

Counter narrative, a story that calls attention to and rebuts the presumptions of a dominant narrative framework, functions as an essential tool to reshape the bounds of the law. It has the potential to shape the collective notion of what constitutes legal authority. Black Lives Matter offers a counter narrative that challenges the characterization of the shared public space, among other aspects of contemporary society, as the space of law. Using the concept of necropower—the mobilization and prioritization of the state’s power to kill—I analyze the contested physical and conceptual space of law exposed by the counter narrative of Black …

Twitter And The #So-Calledjudge, Elizabeth G. Thornburg

SMU Law Review

Two-hundred-eighty characters may be insufficient to deliver a treatise on the judiciary, but it is more than enough to deliver criticism of the third branch of government. Today, these tweeted critiques sometimes come not from the general public but from the President himself. Attacks such as these come at a challenging time for court systems. We live in a highly politicized, polarized society. This polarization is reflected in attitudes toward the courts, particularly the federal courts. Unfortunately, public doubts about the court system come at a time when public understanding of the structure of government, and especially the court system, …

Front Matter

SMU Law Review

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The Legacy Of Professor Joseph Webb Mcknight, Justice Nathan L. Hecht

SMU Law Review

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Joseph Webb Mcknight (Obituary Originally Printed In The Magdalen College Record), William Bridge, Gregory Ivy

SMU Law Review

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Professor Joseph Mcknight, Jurist And Historian, Alexander Mccall Smith

SMU Law Review

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Joe Mcknight: Friend, Mentor, Scholar & Legend, Brian L. Webb

SMU Law Review

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A Curious Parental Right, Margaret Ryznar

SMU Law Review

The United States Supreme Court has not articulated the appropriate level of scrutiny for judicial review of interferences with the parents’ care, custody, and control of their children, despite determining it to be constitutionally fundamental. While some observers have called for the selection of a level of scrutiny to prevent inconsistencies among the lower courts, the complexity of the parental right has made it difficult for courts to use one level of scrutiny in such cases. To accommodate this complexity, this Article begins to build a new framework for conceptualizing the parental right in a way that explains and justifies …

A Look Back At The Future Of Ucc Damages Remedies, Roy Ryden Anderson

SMU Law Review

Article Two of the Uniform Commercial Code stands today as a living testament to Karl Llewellyn and the many other brilliant and dedicated lawyers from well over a half century ago who participated actively in its drafting. Of the Code’s several articles, Article Two is particularly noteworthy because it alone has survived to the present day without significant substantive amendment. That longevity is most remarkable given the ensuing fifty plus years of expanded knowledge, technological advance, and innovative changes in fundamental business practice that have occurred in our ever-evolving economy. At its inception, much of Article Two represented novel departure …

Front Matter

SMU Law Review

No abstract provided.