Law Commons^™

Tribute To John Lowe On His Retirement, David Pierce

SMU Law Review

No abstract provided.

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 …

Pregnancy Risk And Coerced Interventions After Dobbs, Elizabeth Kukura

SMU Law Review

Only nine months after the Supreme Court eliminated the federal constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization, fourteen states had banned abortion entirely, and experts estimate the ultimate number of states imposing complete or near-complete restrictions on abortion care will likely rise to twenty-four. Millions of people with the capacity for pregnancy now (or will soon) live in places where getting pregnant means there is no choice other than to carry the pregnancy to term and give birth. One underappreciated, though critically important, impact of Dobbs is the extent to which newly enacted abortion restrictions will …

Appraisal Discrimination: Five Lessons For Litigators, Heather R. Abraham

SMU Law Review

Appraisal discrimination not only persists, but its influence has actually increased in some housing markets. New studies document how contemporary appraisal methods operate as systemic racism, such as how appraisers select from a narrower set of comparable properties when appraising homes in predominantly Black neighborhoods. Recent events have renewed public attention to appraisal discrimination, from shocking news stories to a new multiagency federal task force. In tandem, a new wave of litigation has emerged. This Article examines litigation as one element of a multifaceted approach to combatting appraisal discrimination. After examining the weaknesses of the regulatory framework governing appraisals, this …

A Review And Look Ahead At Criminalizing Pregnancy In The Name Of State Interest In Fetal Life, Sarah E. Burns, Sarah S. Wheeler

SMU Law Review

Across the United States, and especially in communities that are highly policed and in places hostile to abortion, pregnant people are dying, suffering, being separated from their children and families, and going to jail and prison in purported service of the state interest in fetal life recognized in Roe v. Wade and expanded in Planned Parenthood of Pennsylvania v. Casey. This Article focuses on two common practices that cause these harms: criminalizing pregnant people and denying them medical decision-making authority. While these practices are not new, the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization is …

Warranted Exclusion: A Case For A Fourth Amendment Built On The Right To Exclude, Mailyn Fidler

SMU Law Review

Searches intrude; fundamentally, they infringe on a right to exclude. So that right should form the basis of Fourth Amendment protections. Current Fourth Amendment doctrine—the reasonable expectation of privacy test—struggles with conceptual clarity and predictability. The Supreme Court’s recent decision to overturn Roe v. Wade casts further doubt on the reception of other privacy-based approaches with this Court. But the replacement approach that several Justices on the Court favor, what I call the “maximalist” property approach, risks troublingly narrow results. This Article provides a new alternative: Fourth Amendment protection should be anchored in a flexible concept derived from property law—what …

Challenges In Substantive Due Process Litigation, Nancy Leong

SMU Law Review

This Article presents the results of an empirical examination of litigation involving substantive due process claims. I have compiled a dataset consisting of every case in which a federal appellate court adjudicated a substantive due process claim during the year 2019—a total of 98 cases. This census yields important information about the context in which substantive due process rights are litigated and articulated within our civil rights enforcement scheme. As a threshold matter, I show that 92% of substantive due process cases come to the federal appellate courts as actions brought under 42 U.S.C. § 1983. This information underscores that, …

Renewing Educational Autonomy, Johanna Kalb

SMU Law Review

American colleges and universities are facing an unprecedented wave of state legislative actions calling into question the freedom that these institutions have long enjoyed, as well as their ability to serve increasingly diverse student populations. Current constitutional protections for academic freedom under the First Amendment are proving an inadequate defense from these types of incursions. This Article argues for a reexamination and reinvigoration of a constitutional theory of educational autonomy protected by substantive due process, drawing on both the pre-colonial models that informed the creation of American colleges, as well as the earliest cases involving state efforts to control them. …

The U.S. Constitution Is Not A Code: Unraveling The Idea And The Meaning Of Substantive Due Process, Simona Grossi

SMU Law Review

This Article delves into the nuanced meaning of substantive due process by tracing its historical and contemporary contexts. Beginning with the exploration of pre-ratification state constitutions, the debates surrounding ratification, and early Court views on the Constitution’s nature (perceived not as a code but an enduring collection of principles), the study then addresses the role and meaning of stare decisis as positive of history and tradition, and the role of judicial decision-making in our system starting from Marbury v. Madison. The Article concludes by linking substantive due process to universally recognized fundamental rights, emphasizing that our Constitution’s true intent is …

(Gun) Tag, Congress Is It!, Robert E. Wagner

SMU Law Review

The current majority of the Supreme Court has significantly increased access to firearms. In last year’s New York State Rifle & Pistol Association v. Bruen decision, the majority curtailed legislative options for protecting U.S. citizens from the danger presented by unfettered access to life-threatening weapons. The majority refused to acknowledge the danger inherent in firearms and the substantive difference in function between an antique flintlock and an AK-47. The Court’s refusal to consider the change that technology has brought to firearm capabilities has resulted in a dramatically reduced ability for any legislation to address the danger of firearms in a …

The Trilogy Of Personal Jurisdiction And The Importance Of Ford, Jonathan M. Hoffman, Michaela Cloutier, Jason Proctor

SMU Law Review

Litigants and judges alike have struggled to understand and resolve the parameters of personal jurisdiction, particularly in product liability cases. This results in significant costs and time which is likely to be of little benefit to anyone.

Much of this confusion arises from two problems: (1) most of the early Supreme Court decisions on personal jurisdiction arose from contractual disputes; and (2) when the economy expanded after World War II, and new automobiles, commercial aircraft, appliances, and other complex products appeared, the Court’s attempts to resolve personal jurisdiction issues were unsuccessful. For over three decades, the Supreme Court failed to …

Failures In The “Laboratories Of Democracy” And Democratic Due Process As Constitutional Guardrails, Matthew C. Clifford, F. Paul Bland Jr.

SMU Law Review

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court reversed decades of precedent supporting a substantive due process right to abortion under the Fourteenth Amendment, and purported to return the question of reproductive autonomy to the “democratic process” in the states. Justice Thomas, writing in concurrence, militated for reconsidering all of the Court’s substantive due process precedents. In today’s era of democratic backsliding, these are dangerous pronouncements with grave, if not existential, implications for democracy in the United States. The Dobbs majority hazardously asserted that state-level abortion legislation would, in fact, be the result of a democratic process. …

Data Milkshakes: The Rule Of Capture And The Constitutionality Of Data Mining, Bryce Pilawski

SMU Law Review

This Comment examines, explains, and attempts to reconcile the federal judiciary’s implicit reasoning behind the lax protection of metadata in years past, specifically through the lens of the Rule of Capture. With the goal of explaining the historical hesitance courts have shown when protecting metadata, this Comment illustrates why this hesitance is actually motivated by reasoned restraint rather than a mere refusal to protect. In fact, through the lens of the Rule of Capture, metadata tracks the characteristics of resources that have traditionally counseled for the Rule’s application, specifically that the resource is: (1) emerging in value and (2) difficult …

A Tribute To Professor John S. Lowe, Eric C. Camp

SMU Law Review

No abstract provided.

Front Matter

SMU Law Review

No abstract provided.

Protecting “No Surprises” Journalism: Why Courts Should Preserve The Actual Malice Privilege For News Media That Include The Subject’S Response To Allegations Of Misconduct, Zachary R. Cormier

SMU Law Review

The recent onset of the “fake news” era has brought with it a wave of public discussion about the importance of ethical journalism. The sheer volume of misinformation from non-traditional online sources has had the corollary effect of also reducing the trust of many in traditional news sources. This is especially the case when the report involves alleged misconduct or scandal, which stands to potentially benefit opponents of the subject person or organization. Traditional news sources have fought vigorously to both differentiate “fake news” and reinstate public trust in sources committed to ethical journalism. But what exactly is “ethical journalism”? …

Preface, Christopher T. Nace

SMU Law Review

No abstract provided.

No Transfer? No Problem!: The Federal Circuit's Excessive Use Of The Most Potent Weapon In The Judicial Arsenal For § 1404(A) Transfer Appeals, Colin Hickl

SMU Law Review

Like all federal plaintiffs, patent owners who feel their patent has been infringed have the right to file suit in any federal court, so long as venue is proper. Patent plaintiffs often select plaintiff-friendly venues, like the Eastern and Western Districts of Texas. Usually, plaintiffs may select these venues because many of the alleged infringers are large companies with a national presence, which makes them susceptible to suit in many federal courts around the country. Defendants in patent cases often file a motion under 28 U.S.C. § 1404(a) to transfer a case to a more defendant-friendly venue, on the basis …

The Ultimate Metaverse Match: An Analysis Of First Amendment Protections And Unauthorized Trademark Use In Non-Fungible Tokens, Alena Khan

SMU Law Review

The First Amendment has long provided protections for artists’ creative expression and is a fundamental right for all United States citizens. However, with the rise of a predominantly digital world, those protections begin to blur with the introduction of non-fungible tokens (NFTs). Artistic creation often stems from an inspired source, and sometimes, that inspiration may come from registered intellectual property, specifically trademarks. Trademarks are everywhere we look, so it is not unusual for artists to be inspired by the logos, images, colors, figures, or symbols that are featured on billboards, magazine covers, or everyday items. When these trademarks are used …

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, …

Front Matter

SMU Law Review

No abstract provided.

A Tribute To Beth Thornburg, Mary Emma Karam

SMU Law Review

No abstract provided.

May I Use The Restroom? The Supreme Court’S Likely Opportunity To Define “Sex” In Title Ix And End The Transgender Bathroom Debate, Kaleb Degler

SMU Law Review

The Supreme Court’s landmark decision in Bostock, which established that “sex” under Title VII includes gender identity and sexual orientation, now protects LGBTQ+ persons from discrimination in the workplace. However, this interpretation of “sex” was not subsequently applied wholesale to “sex” under Title IX, leaving many LGBTQ+ students—particularly transgender students—subject to the fate of where they were born and the shifting tides of the federal executive. Beginning with the Obama Administration, a history of conflicting guidance and opinion letters has dominated the discussion on whether transgender students are allowed to use the restroom that corresponds with their gender identity.

In …

William V. Dorsaneo, Iii, Nathan L. Hecht

SMU Law Review

No abstract provided.

Tribute To William V. Dorsaneo, Iii, Chip Babcock

SMU Law Review

No abstract provided.

Addressing Big Tech’S Market Power: A Comparative Institutional Approach, Thomas A. Lambert

SMU Law Review

This Article provides a comparative institutional analysis of the three leading approaches to addressing the market power of large digital platforms: (1) traditional antitrust law, the approach thus far taken in the United States; (2) ex ante conduct rules, the approach embraced by the European Union’s Digital Markets Act and several bills under consideration in the U.S. Congress; and (3) ongoing agency oversight, the approach embraced by the United Kingdom with its newly established “Digital Markets Unit.” After identifying the general advantages and disadvantages of each approach, the Article examines how they are likely to play out in the context …

Tribute To Professor Elizabeth Thornburg, Jennifer M. Collins

SMU Law Review

No abstract provided.

Tribute To Professor Beth Thornburg, Melinda Arbuckle

SMU Law Review

No abstract provided.

The Boundaries Of Multi-Parentage, Jessica Feinberg

SMU Law Review

Multi-parentage has arrived. In recent years, a growing number of courts and legislatures have recognized that a child may have more than two legal parents. A number of significant societal, medical, and legal developments have contributed to the trend toward multi-parentage recognition. The traditional family structure of a married different-sex couple and their biological children currently represents only a minority of U.S. families. Stepparents, non-marital partners of legal parents, and extended family members often play a significant role in children’s lives, and it has become increasingly common for same-sex couples to welcome children into their families. In addition, advancements in …

Front Matter

SMU Law Review

No abstract provided.