Law Commons^™

Reaching Across The Threshold Of The Fourth Amendment - Why Payton V. New York Should Be Interpreted Broadly, Caroline Hunt

SMU Law Review

No abstract provided.

The Wrong Decision At The Wrong Time: Utah V. Strieff In The Era Of Aggressive Policin, Julian A. Cook Iii

SMU Law Review

No abstract provided.

Copyright Ownership—Even Iron Man Couldn’T Protect The Work For Hire Doctrine From Third-Party Infringers, Elizabeth Vinson

SMU Law Review

No abstract provided.

Front Matter

SMU Law Review

No abstract provided.

Banking On Diversity: Does Gender Diversity Improve Financial Firms’ Risk Oversight, Kristin N. Johnson

SMU Law Review

No abstract provided.

An Open Field For Professional Athlete Litigation: An Analysis Of The Current Application Of Section 301 Preemption In Professional Sports Lawsuits, Morgan Francy

SMU Law Review

No abstract provided.

Implicit Bias And Prejudice In Mediation, Carol Izumi

SMU Law Review

Mediators aspire and endeavor to meet their ethical duty of “neutrality” in mediation. Yet their ability to actually conduct mediations without bias, prejudice, or favoritism toward any party is extraordinarily difficult, if not impossible. Research shows that unconscious mental processes involving stereotypes and attitudes affect our judgments, perceptions, and behavior toward others. Implicit bias, the automatic association of stereotypes and attitudes with social groups, may produce discriminatory responses toward parties despite a mediator’s best efforts at creating an outwardly even-handed process. Even the most well-intentioned and egalitarian mediators must actively engage in bias reduction strategies to mitigate prejudice in mediation.

Do You Believe In Magic?: Self-Determination And Procedural Justice Meet Inequality In Court-Connected Mediation, Nancy Welsh

SMU Law Review

Proponents of the “contemporary mediation movement” promised that parties would be able to exercise self-determination as they participated in mediation. When courts began to mandate the use of mediation, commentators raised doubts about the vitality of self-determination. Though these commentators also suggested a wide variety of reforms, few of their proposals have gained widespread adoption in the courts.

Ensuring the procedural justice of mediation represents another means to ensure self-determination. If mediation provides parties with the opportunity to exercise voice, helps them demonstrate that they have considered what each other had to say, and treats them in an even-handed and …

Critical Procedure: Adr And The Justices’ “Second Wave” Constriction Of Court Access And Claim Development, Eric K. Yamamoto

SMU Law Review

Expansive alternative dispute resolution (ADR) was the centerpiece of efficiency-based procedural reforms in the 1980s and early 1990s. ADR and other reforms collectively altered the litigation landscape, at times for the better. Yet some scholars raised early questions about ADR’s effect on systemic litigation fairness and the ability of the disenfranchised to assert and maintain claims in court. Amid second wave procedural changes, commencing around the mid-2000s, a Justice Scalia-led majority significantly expanded the grasp of compelled, private, and individualized arbitration. Under the shroud of efficiency, that Court majority imposed those second wave changes by judicial fiat, bypassing formal rulemaking. …

The Lost Promise Of Arbitration, Sarah Rudolph Cole

SMU Law Review

This article disputes the notion that arbitration, a historically informal process, tends to disadvantage minority disputants or provide them with quick decisions tainted by prejudice. Responding to Richard Delgado’s seminal work, Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution, this article attempts to shed greater light on the benefits of modern arbitration for minority disputants. Although still capable of improvement, arbitration may well provide greater protections to minority disputants than does litigation. Since Delgado first wrote his article, the use of arbitration as a primary dispute resolution mechanism has increased dramatically, particularly among businesses and …

The Shadow Of Free Enterprise: The Unconstitutionality Of The Securities & Exchange Commission's Administrative Law Judges, Linda D. Jellum, Moses M. Tincher

SMU Law Review

Six years ago, Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), for the first time giving the Securities and Exchange Commission (SEC) the power to seek monetary penalties through its in-house adjudication. The SEC already had the power to seek such penalties in federal court. With the Dodd-Frank Act, the SEC’s enforcement division could now choose between an adjudication before an SEC Administrative Law Judge (ALJ) or a civil action before an Article III judge. With this new choice, litigants contended that the SEC realized a significant home-court advantage. For example, the Wall Street Journal …

The Carried Interest Standoff: Reaffirming Executive Agency Authority, Dean Galaro, Gregory S. Crespi

SMU Law Review

This Article argues that, if reform is necessary, carried interest taxation should be amended by agency rulemaking and not by Congress. Much has already been said about carried interest, but this Article attempts to look through a new lens—legislative history. Carried interest presents a complicated question about the application of foundational partnership tax principles. It is an issue that has received popular attention only within the last decade. Since then, the face of reform has been efforts in Congress to pass an overly complex bill—Section 710. By looking back through the legislative history of carried interest, we begin to see …

Soggy Debt—The Seventh Circuit Widens The Split On Fdcpa Liability For Time-Barred Claims In Bankruptcy, Elijah C. Stone

SMU Law Review

No abstract provided.

Front Matter

SMU Law Review

No abstract provided.

Reining In Internet-Age Expansion Of Exemption 7(C): Towards A Tort Law Approach For Ferreting Out Legitimate Privacy Concerns And Unwarranted Intrusions Under Foia, Clay Calvert, Austin Vining, Sebastian Zarate

SMU Law Review

Using the July 2016 federal appellate court decision in Detroit Free Press, Inc. v. U.S. Department of Justice as an analytical springboard, this article explores the expansion of Freedom of Information Act (FOIA) Exemption 7(C) in the Internet era. In Detroit Free Press, the Sixth Circuit recognized a privacy interest in mug shots under Exemption 7(C). The practical impact of the decision is to uphold the general policy of the U.S. Marshals Service not to release mug shots. This article illustrates the yawning gap between tort law, which this article argues would deny recovery for the Internet posting of …

Free Speech, The Search For Truth, And The Problem Of Collective Knowledge, Frederick Schauer

SMU Law Review

No abstract provided.

The High Cost Of Free-To-Play Games: Consumer Protection In The New Digital Playground, Erik Allison

SMU Law Review

No abstract provided.

The Social Origins Of Innovation Failures, Laura Pedraza-Farina

SMU Law Review

This Article identifies and describes a crucial source of innovation failure— linked not to the market but to the structure of social relations that underlie market transactions—that this Article terms social network innovation failures. This source of innovation failure, however, has been obscured by two assumptions in traditional market failure models of innovation. First, market failure models frequently assume that public, non-secret knowledge (or information) will flow freely among communities of innovators and be put to its optimal use. Second, market failure models pay little attention to how good ideas emerge, assuming that good ideas will follow from investment in …

Taxing Prizes And Awards: Proposed Amendments To Section 74 To Treat Meritorious Achievements Equitably, Tayler Green

SMU Law Review

No abstract provided.

When Fingerprints Are Key: Reinstating Privacy To The Privilege Against Self-Incrimination In Light Of Fingerprint Encryption In Smartphones, Efren Lemus

SMU Law Review

No abstract provided.

Re-Zoning The Sharing Economy: Municipal Authority To Regulate Short-Term Rentals Of Real Property, Cory Scanlon

SMU Law Review

No abstract provided.

Alternative Dispute Resolution: A Critical Reconsideration, Richard Delgado

SMU Law Review

No abstract provided.

Front Matter

SMU Law Review

No abstract provided.

The Unbearable Lightness Of Alternative Dispute Resolution: Critical Thoughts On Fairness And Formality, Richard Delgado

SMU Law Review

Years ago, I published Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution in Wisconsin Law Review. Arriving in the early years of the deformalization movement, Fairness and Formality sounded a warning about the risks this conflict resolution approach poses for disempowered disputants. Coming on the heels of an article in the same vein by Owen Fiss, Fairness & Formality attracted attention in part because its message ran counter to the prevailing ideology, according to which alternative dispute resolution is superior in many respects to the in-court variety—cheaper, faster, and friendlier, particularly for the uninitiated.

Soon, however, …

Negotiating While Female, Andrea Kupfer Schneider

SMU Law Review

Why are women paid less than men? Prevailing ethos conveniently blames the woman and her alleged inability to negotiate. This article argues that blaming women for any lack of negotiation skills or efforts is inaccurate and that prevailing perceptions about women and negotiation are in-deed myths. The first myth is that women do not negotiate. While this is true in some lab studies and among younger women, more recent workplace data calls this platitude into question. The second myth is that women should avoid negotiations because of potential backlash. Although women in leadership do face an ongoing challenge to be …

Does Alternative Dispute Resolution Facilitate Prejudice And Bias? We Still Don’T Know, Gilat J. Bachar, Deborah R. Hensler

SMU Law Review

By the time Professor Richard Delgado and his colleagues wrote their seminal article on the risk of alternative dispute resolution (ADR) facilitating prejudice, ADR programs were well-established in the United States, supported by legislative and court mandates, private contracts, and U.S. Supreme Court decisions. Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution and Delgado’s subsequent review article, ADR and the Dispossessed: Recent Books About the Deformalization Movement, were cited hundreds of times by scholars and practitioners but did little to stop the movement to substitute mediation, arbitration, and other dispute resolution procedures for public adjudication. …

Contextual Analysis In Arbitration, Pat K. Chew

SMU Law Review

The arbitration process is embedded in a much larger context than the four walls in which the arbitration occurs. Exploring and studying that context—including the arbitral institution, the arbitrators, each party, the arbitration process, and the broader cultural and political environment—inform what actually occurs and to what extent one party may have inherent advantages over the other. This article illustrates this contextual analysis in two diverse settings: domestic employment arbitrations and international trade arbitrations. These analyses reveal one party’s advantages over the other, which are explained in part by market and cultural forces in which these arbitrations are embedded. Interdisciplinary, …

Do Alternative Dispute Resolution Procedures Disadvantage Women And Minorities?, Charles Craver

SMU Law Review

When different legal controversies arise, parties frequently employ alternative dispute resolution procedures to resolve them. Yet some members of ethnic minority groups and women may seek judicial proceedings out of a concern that their ethnicity or gender may undermine their ability to achieve beneficial bargaining outcomes through ADR. This article addresses the real and perceived challenges of ethnic minorities and women in ADR. It draws upon decades of research into dispute resolution bargaining processes to illustrate that most traits associated with ethnicity and gender are irrelevant today with respect to ADR. When persons are taught even minimally about the bargaining …

Dispute System Design And Bias In Dispute Resolution, Lisa Blomgren Amsler, Alexander B. Avtgis, Michael Scott Jackman

SMU Law Review

This article examines the role of mediator race and gender in perceptions of procedural justice as measure of accountability and representative bureaucracy in a national mediation program for complaints of employment discrimination at a large federal organization, the United States Postal Service. Mediation represents a forum of accountability in which employees may hold an employer accountable for violating federal law prohibiting forms of employment discrimination, in this case, race discrimination, sex discrimination, and sexual harassment. Representative bureaucracy theory suggests passive or symbolic representation when the demographics of public officials should mirror those of the public they serve. Some research suggests …

Are Validation Notices Valid? An Empirical Evaluation Of Consumer Understanding Of Debt Collection Validation Notices, Jeff Sovern, Kate E. Walton

SMU Law Review

A principal protection against the collection of consumer debts that are not actually owed is the Fair Debt Collection Practices Act’s (FDCPA) validation notice, which obliges debt collectors demanding payment to notify consumers of their rights to dispute debts and request verification, among other things. This Article reports on the first public study of whether consumers understand the notices or what they take away from them. For nearly four decades, courts have decided whether validation notices satisfied the FDCPA without ever knowing when or if consumers understand the notices. This Article attempts to remedy that problem.

Collectors who prefer that …