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Full-Text Articles in Law
“Victims’ Rights” And Diversion: Furthering The Interests Of Crime Survivors And The Community, Miriam Krinsky, Liz Komar
“Victims’ Rights” And Diversion: Furthering The Interests Of Crime Survivors And The Community, Miriam Krinsky, Liz Komar
SMU Law Review
Against the backdrop of the prosecutorial reform movement, this Article explores the origins of the tensions between victims’ rights and criminal justice reform efforts and argues that while victims’ rights may be in tension with diversion in some individual cases, the broader needs and interests of crime survivors do not conflict with decarceral diversion and deflection strategies. The Article describes the growing movement toward diversion among reform prosecutors and briefly recounts the history of the victims’ rights movement and “tough-on-crime” politics. The Article then discusses the demographics of crime survivors, who are disproportionately from the communities most harmed by “tough …
Hold My Beer, Hold My Price: State Post-And-Hold Regulatory Schemes Constitute Price Fixing Preempted By Federal Antitrust Law, Kathrine Maldonado
Hold My Beer, Hold My Price: State Post-And-Hold Regulatory Schemes Constitute Price Fixing Preempted By Federal Antitrust Law, Kathrine Maldonado
SMU Law Review
The Supreme Court has created various tests in cases involving antitrust preemption of state regulations—such as Midcal’s state immunity two-pronged analysis and Fisher’s hybrid versus unilateral restraint test—without clarifying how the various tests fit together. This has led to circuit splits not only in regard to how courts approach antitrust preemption cases but also in regard to the preemption findings of nearly identical laws in different circuits. In a departure from the Ninth and Fourth Circuits, the Second Circuit recently upheld the validity of Connecticut’s post-and-hold alcohol pricing regulation. State post-and-hold regulations effectuate illegal price fixing between competitors …
Taxing Employers For Imposing Mandatory Arbitration, Class Action Waiver, And Nondisclosure Of Dispute Provisions, Rebecca N. Morrow
Taxing Employers For Imposing Mandatory Arbitration, Class Action Waiver, And Nondisclosure Of Dispute Provisions, Rebecca N. Morrow
SMU Law Review
Employers impose coercive dispute resolution terms on their employees more frequently, more broadly, and with greater legal success than ever before. Recent survey data indicates that mandatory employment arbitration provisions bind more than 60 million American workers—over half of the U.S. private-sector nonunion workforce. Employment class action waivers bind nearly 25 million American workers. In 2018, the Supreme Court held 5–4 that mandatory arbitration provisions and class action waivers imposed by employers on their employees do not violate the National Labor Relations Act. These terms prohibit employees from exposing employer wrongdoing in open court, bar employees with valid wage and …
Barring Immoral Speech In Patent And Copyright, Ned Snow
Barring Immoral Speech In Patent And Copyright, Ned Snow
SMU Law Review
In the past three years, the Supreme Court has twice ruled that Congress’s moral bars to trademark protection violate the First Amendment. Those rulings raise a simple question in other areas of intellectual property. Does the First Amendment preclude Congress from denying patent or copyright protection based on a moral reason? Congress, for instance, might deny patent protection for inventions directed toward the consumption of marijuana. Inventors would accordingly choose not to disclose knowledge about those inventions to the public, and the denial would chill their speech. Similarly, Congress would chill speech if it denied copyright protection for moral reasons. …
No Name, Lawrence M. Friedman
Biology And Illegitimacy, Douglas Nejaime
Biology And Illegitimacy, Douglas Nejaime
SMU Law Review
This symposium Essay examines how biological parenthood, which in the twentieth century served as a mechanism by which to repudiate “illegitimacy” and to protect nonmarital parent–child relationships, today serves to justify new forms of illegitimacy and to separate unmarried parents from their children.
In the second half of the twentieth century, courts and legislatures renounced the discriminatory regime of illegitimacy, in which the children of unmarried parents enjoyed few rights to support or inheritance. They did so by raising the legal status of biological parenthood—extending rights to unmarried biological fathers and their children. Today, though, the vindication of biological ties …
Thoroughly Modern Motherhood, Joanna Grossman
Federal Jurisdiction As Statutory Interpretation: A Majordomo Purposivist Perspective, Martin H. Redish, Andrew F. Rodheim, Nicholas Roosevelt
Federal Jurisdiction As Statutory Interpretation: A Majordomo Purposivist Perspective, Martin H. Redish, Andrew F. Rodheim, Nicholas Roosevelt
SMU Law Review
The study of federal jurisdiction has traditionally involved little more than a combined examination of judicial doctrine and policy. Under this approach, scholars study how the Supreme Court has decided to shape the jurisdiction of the federal courts, and the policies the Court believes jurisdictional doctrine should reflect. Hardly ever have scholars studied the legislative purposes sought to be achieved by federal jurisdiction. It is important to recall, however, that for the most part, modern federal jurisdiction law grows out of a network of congressional statutes—which, in turn, grow out of policy choices made not by unrepresentative judges but by …
From Protecting Water Quality To Protecting States’ Rights: Fifty Years Of Supreme Court Clean Water Act Statutory Interpretation, Stephen Johnson
From Protecting Water Quality To Protecting States’ Rights: Fifty Years Of Supreme Court Clean Water Act Statutory Interpretation, Stephen Johnson
SMU Law Review
In 1972, a bipartisan Congress enacted the Clean Water Act “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Almost fifty years have passed since Congress enacted the law, and during that time, the Supreme Court has played a significant role in the administration and evolution of the law. Since the dawn of the environmental era in the 1970s, the Supreme Court has heard more cases involving the Clean Water Act than any other environmental law. However, the manner in which the Court has analyzed the law has changed substantially over the last half century. …
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 …
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 …
How Analogizing Socio-Legal Responses To Organ Transplantation Can Further The Legalization Of Reproductive Genetic Innovation, Myrisha S. Lewis
How Analogizing Socio-Legal Responses To Organ Transplantation Can Further The Legalization Of Reproductive Genetic Innovation, Myrisha S. Lewis
SMU Law Review
The Nobel Foundation emphasized the significance of genetic innovation to society, science, and medicine by awarding the 2020 Nobel Prize in Chemistry to “the CRISPR/Cas9 genetic scissors.” This Article focuses on “reproductive genetic innovation,” a term that includes cytoplasmic transfer, mitochondrial transfer, and germline or heritable gene editing techniques that are all categorized as “experimental” in the United States. These techniques all use in vitro fertilization, a legal and widely available practice. Yet reproductive genetic innovation has resulted in controversy and numerous barriers including a recurring federal budget rider, threats of federal enforcement action, and the unavailability of federal funding. …
Slavery And The Postbellum University: The Case Of Smu, Lolita Buckner Inniss, Skyler Arbuckle
Slavery And The Postbellum University: The Case Of Smu, Lolita Buckner Inniss, Skyler Arbuckle
SMU Law Review
People who practiced slavery across the United States, or engaged in slavery-related practices, were often the same civically-minded social, legal, and economic leaders who founded the nation’s first colleges and universities. There was, thus, from our earliest times, an unacknowledged but firm tie between the values and high ideals of the academy that existed in stark contraposition to the horrors of human bondage that fueled those institutions. Many North American colleges founded before the Civil War relied on money derived from the elite members of society with direct involvements in slavery. While a growing body of scholarly work discusses early …
A Solution To The Murkiness Of Nonparent Visitation Rights In Texas, Morgan Tauscher
A Solution To The Murkiness Of Nonparent Visitation Rights In Texas, Morgan Tauscher
SMU Law Review
To protect parental rights, Texas law presumes that a child’s parent or parents are in the position to make decisions regarding the best interest of their child. However, Texas courts favor granting nonparent visitation rights, even over parents’ objections, if there is sufficient evidence presented by the nonparent to overcome the presumption. Although Texas law is well-established when considering sufficient evidence to overcome the presumption in nonparent child custody cases, courts are inconsistent about the standards and tests involved in nonparent child visitation cases. There are differences between child custody disputes and visitation disputes, such as the level of parental …
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 …
Using Extrinsic Evidence To Excuse A Liability Insurer’S Duty To Defend, Douglas R. Richmond
Using Extrinsic Evidence To Excuse A Liability Insurer’S Duty To Defend, Douglas R. Richmond
SMU Law Review
Most Americans and American businesses purchase liability insurance to protect against financial loss should they ever be sued. In furnishing this protection, liability insurers contractually promise policyholders that they will defend them against lawsuits seeking covered damages and indemnify them for such damages up to the policy limits. As important as the insurer’s promise of indemnification is to an insured, the insurer’s agreement to defend the insured in litigation is an equally essential aspect of the liability insurance bargain. An insurer must decide whether it has a duty to defend its insured at the outset of a case. There are …
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.
Tribute To Professor Roy Anderson, Timothy Davis
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 …
The Reform Blindspot, Irene Oritseweyinmi Joe, Shelly Richter, Dayja Tillman
The Reform Blindspot, Irene Oritseweyinmi Joe, Shelly Richter, Dayja Tillman
SMU Law Review
The last few years have seen a marked shift in the public’s response to mass incarceration. Some state legislatures have responded by changing criminal statutes and sentencing schemes to reduce the number of people incarcerated in jails and prisons and lessen the collateral consequences faced by those previously convicted of crimes. Although these efforts are laudable, they may fail to consider the limitations imposed upon convicted persons seeking to avail themselves of these benefits without the assistance of counsel. This essay argues that, in addressing the question of how best to effectuate the progressive goals of criminal justice reform, it …
Let’S Move Criminal Justice Reforms Upstream: A Perspective From The Bench, Bridget Mccormack
Let’S Move Criminal Justice Reforms Upstream: A Perspective From The Bench, Bridget Mccormack
SMU Law Review
“[S]ometimes it feels like this. There I am standing by the shore of a swiftly flowing river and I hear the cry of a drowning man. So I jump into the river, put my arms around him, pull him to shore and apply artificial respiration. Just when he begins to breathe, there is another cry for help. So I jump into the river, reach him, pull him to shore, apply artificial respiration, and then just as he begins to breathe, another cry for help. So back in the river again, reaching, pulling, applying, breathing and then another yell. Again and …
Tribute To Professor Jeff Gaba, Jennifer M. Collins
Tribute To Professor Jeff Gaba, Jennifer M. Collins
SMU Law Review
No abstract provided.
Jeff Gaba Tribute, Cindy Bishop