Law Commons^™

Second Amendment: D.C. Circuit Court Creates Split On The Constitutionality Of Good-Reason Laws, Madeleine Giese

SMU Law Review

No abstract provided.

Texas Gulf Sulphur And Information Disclosure Policy, Onnig H. Dombalagian

SMU Law Review

Texas Gulf Sulphur’s bold ultimatum—"disclose or abstain”— enjoys an enduring place of prominence in discussions of insider trading law be- cause of the intuitive simplicity with which it asserts the expectations of investors in securities markets. As the law of information dissemination has developed into a distinct subset of federal securities law over the past fifty years, however, it is equally important to reflect on how the Texas Gulf Sulphur opinion has shaped the views of courts and regulators in crafting rules and guidelines for information disclosure. Indeed, Texas Gulf Sulphur anticipated—and continues to inform—contemporary debates relating to the dissemination …

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 …

Texas Gulf Sulphur And The Genesis Of Corporate Liability Under Rule 10b-5, Adam C. Pritchard, Robert Thompson

SMU Law Review

This Essay explores the seminal role played by SEC v. Texas Gulf Sulphur Co. in establishing Rule 10b-5’s use to create a remedy against corporations for misstatements made by their officers. The question of the corporation’s liability for private damages loomed large for the Second Circuit judges in Texas Gulf Sulphur, even though that question was not directly at issue in an SEC action for injunctive relief. The judges considered both, construing narrowly “in connection with the purchase or sale of any security,” and the requisite state of mind required for violating Rule 10b-5. We explore the choices of the …

Unintended Consequences: The Link Between Judge Friendly’S Texas Gulf Sulphur Concurrence And Recent Supreme Court Decisions Misconstruing Rule 10b-5, Margaret V. Sachs

SMU Law Review

In his Texas Gulf Sulphur concurrence, Judge Henry J. Friendly coun- seled the federal district courts concerning the numerous pending satellite class actions that had been filed under Section 10(b) of the Securities Ex- change Act and Rule 10b-5. In the course of so doing, he argued forcefully that private Rule 10b-5 litigation should be curtailed. Finding his argument convincing, the Supreme Court issued four major decisions restricting the Rule between 1975 and 1994, while nonetheless expanding it in Basic Inc. v. Levinson. Congress responded by blessing both aspects of the Court’s jurisprudence – imposing its own set of …

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 …

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 …

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 …

The Duty To Disobey Illegal Nuclear Strike Orders, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

This Article argues there is a legal duty to disobey illegal nuclear strike orders. Failure to carry out this duty may result in criminal and civil liability.Because nuclear weapons are quantitatively and qualitatively different from conventional weapons, typical legal calculations regulating their use under the laws of war or humanitarian law, as well as human rights law, change along with the change in weaponry. At least five “unique characteristics” of nuclear weapons ominously distinguish them from conventional weapons in ways that promise only to increase civilian death and suffering. First, quantitatively, the blast power, heat, and energy generated far outstrip …

The Coasian Firm And Insider Trading, Revisited, James C. Spindler

SMU Law Review

I present an economic model of insider trading building upon Haddock & Macey’s classic analysis of trading by the manager of a Coasian firm (i.e., a firm in which agency costs do not exist). Due to current shareholders’ status as expected sellers of shares, Coasian insider trading allows shareholders to expropriate outsiders via the managerial proxy and any signaling value of insider trading is eliminated by shareholders’ biased incentives. Adverse selection results. If a system of credible disclosure exists, an insider trading ban results in more disclosure, more efficient prices, and lower illiquidity costs. While the case for insider trading …

International Law And Extraterritoriality: Brief Of International And Extraterritorial Law Scholars As Amici Curiae (U.S. V. Microsoft), Anthony J. Colangelo, Austen L. Parrish

Faculty Journal Articles and Book Chapters

Written by international and extraterritorial law scholars, the attached amicus brief was submitted in the U.S. v. Microsoft case. That case involves whether Congress, when it enacted the Stored Communications Act, intended to provide federal and local law enforcement authority to unilaterally seize the private email communications of foreign citizens stored abroad.

The amicus brief explains how the Charming Betsy canon and the law of extraterritoriality are part of a well-defined body of law the U.S. Supreme Court has developed for determining how American law applies abroad. These doctrines exist independently: one aims to avoid unsanctioned violations of international law. …

Energy Market And Policy Revolutions: Regulatory Process And The Cost Of Capital, James W. Coleman

Faculty Journal Articles and Book Chapters

As the world embarks on a transition toward a low-carbon economy, one common characteristic of alternatives to fossil fuels has gone surprisingly unexamined: the cost of these alternative sources is disproportionately concentrated in capital expenses, rather than operating expenses. Solar, wind, and hydro power have very low operating expenses: the cost of these power sources is largely in their construction. Even nuclear power has low fuel costs compared to fossil fuel power sources. So as the world decarbonizes the power grid and electrifies the transportation sector, capital costs will grow increasingly important in the energy sector. At the same time, …

Mutual Mistake Or Excuse: Which Approach To Pursue When Seeking Judicial Relief From Contractual Obligations On The Basis Of Supervening Knowledge?, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

When a person seeks to be relieved from their contractual obligations on the basis of supervening knowledge of a fact existing at the time of contracting that has rendered their performance impracticable or even impossible, and/or has frustrated their purpose in entering into the contract, they would appear to have choice between asserting a mutual mistake enforce-ability defense, or instead asserting one or more of the impossibility, impracticability, or frustration of purpose excuse defenses. Do they in fact have this choice, or does each of these approaches for obtaining relief have its own distinct scope of application, with little if …

Does Failure To Mitigate Damages Bar Recovery Of The Costs Of Mitigation?, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

It is well established that a person who makes reasonable efforts to mitigate her damages after a breach of contract will be able to recover the costs of those mitigation efforts as incidental damages and that a person who fails to make such efforts will be denied recovery of the damages that could have been avoided. But will a person who fails to take reasonable efforts to mitigate damages still be able to recover the probable cost of those mitigation efforts as an offset against the reduction in her damages for failure to mitigate, even though she did not incur …

Why Do Bad Antitrust Decisions Sometimes Make Good Law? The Alcoa And Brown Shoe Examples, C. Paul Rogers Iii

SMU Law Review

Do bad antitrust decisions, as based on their facts, sometimes make good law? That is, do wrongly decided antitrust cases, when considered on their merits, sometimes have a lasting impact on the law even though the decision by most accounts should simply be overruled? If so, why do cases in such disrepute on their merits have such staying power, particularly when so much early antitrust precedent is simply ignored today? The Author examines two cases, United States v. Aluminum Co. of America (Alcoa) and Brown Shoe Co. v. United States, as examples of this phenomenon.

Presenting A Critical Perspective On “Economic Efficiency” In Law And Economics Courses, Gregory S. Crespi

SMU Law Review

“Law and Economics” courses are sometimes criticized for inadequately explaining the normative criterion of “economic efficiency” and then applying this criterion throughout the course in a superficial and biased manner that pejoratively labels most governmental market interventions and wealth redistribution measures as inefficient. These criticisms have merit, and in this article I point out a number of conceptual problems, empirical difficulties, and normative shortcomings of the economic efficiency criterion that students need to understand in order to be able to effectively counter policy arguments that rest upon dubious efficiency assessments.

The eight specific shortcomings of the economic efficiency criterion that …

Insurance Law, J. Price Collins, John C. Scott, Blake H. Crawford

SMU Annual Texas Survey

No abstract provided.

Securities Regulation, George L. Flint Jr.

SMU Annual Texas Survey

No abstract provided.

Oil, Gas, And Mineral Law, John F. Brown

SMU Annual Texas Survey

No abstract provided.

Predatory Innovation: The Definite Need For Legal Recognition, Thibault Schrepel

SMU Science and Technology Law Review

No abstract provided.

Germline Editing: Two Steps Forward, One Step Back?, Kristina Smith

SMU Science and Technology Law Review

No abstract provided.

Front Matter

SMU Annual Texas Survey

No abstract provided.

Commercial Transactions, John Krahmer

SMU Annual Texas Survey

No abstract provided.

Consumer Protection, Matthew J. Mcgowan

SMU Annual Texas Survey

No abstract provided.

Civil Procedure: Pre-Trial & Trial, Amanda Sotak, Andrew C. Whitaker, Timothy Daniels, Amber D. Reece

SMU Annual Texas Survey

No abstract provided.

Intellectual Property Law, David Mccombs, Phillip B. Philbin, Jamie Raju, Catherine Reynolds

SMU Annual Texas Survey

No abstract provided.

A Law Professor’S Modest Response To Trumpism: Supervising Student Directed Research Papers On Impeachment, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

This short essay discusses my motivation for and the reading materials and procedures I use when offering about a half-dozen law students each semester a Directed Research option to research and write papers on the topic of Presidential impeachment. I recommend that those faculty members who may have only a modest Constitutional Law background, but who feel as I do that greater understanding and more sustained discussion of the merits and drawbacks of removal of President Trump from office through impeachment is called for, and who wish to facilitate such understanding and discussion without compromising their professional and ethical obligations …

Final Report Of The Berkeley Center For Law & Technology Section 101 Workshop: Addressing Patent Eligibility Challenges, Jeffrey Lefstin, Peter Menell, David O. Taylor

Faculty Journal Articles and Book Chapters

Over the past five years, the Supreme Court has embarked upon a drastic and far-reaching experiment in patent eligibility standards. Since the founding era, the nation’s patent statutes have afforded patent protection to technological innovations and practical applications of scientific discoveries. However, the Supreme Court’s 2012 decision in Mayo Collaborative Services v. Prometheus Laboratories imposed a new limitation on the scope of the patent system: a useful application of a scientific discovery is ineligible for patent protection unless the inventor also claims an “inventive” application of the discovery. The following year, the Court ruled that discoveries of the location and …

You Can Lead A Horse To Water: Heller And The Future Of Second Amendment Scholarship, Eric Ruben, Joseph Blocher

Faculty Journal Articles and Book Chapters

Ten years ago, there was reason to believe that Second Amendment doctrine would—following elements of District of Columbia v. Heller—become rigid and binary. Likewise, scholarship might have followed the same path; digging into the pre-Heller trenches and pitting "pro-gun" against "pro-regulation" views. In "From Theory to Doctrine: An Empirical Analysis of the Right to Keep and Bear Arms After Heller," we showed through empirical study that the doctrinal reality is far more nuanced and interesting. In this essay, we describe how Heller not only inaugurated a new era of constitutional doctrine, but it also helped create a burgeoning new field …

From Theory To Doctrine: An Empirical Analysis Of The Right To Keep And Bear Arms After Heller, Eric Ruben, Joseph Blocher

Faculty Journal Articles and Book Chapters

As a matter of constitutional doctrine, the right to keep and bear arms is coming of age. But although the doctrine has begun to mature in the decade since District of Columbia v. Heller, scholars, advocates, and judges disagree about (and sometimes simply do not know) how to characterize it.

This Article is the first comprehensive empirical analysis of post-Heller Second Amendment doctrine. Beginning with a set of more than one thousand Second Amendment challenges, we have coded every available Second Amendment opinion — state and federal, trial and appellate — from Heller up until February 1, 2016. The dataset …