Law Commons^™

Branded, Irina D. Manta

SMU Law Review

Marks are traditionally said to serve three functions that are separate from the goals of other forms of IP: source identification, advertising, and guarantee of quality. The story, however, that patents and copyrights incentivize creation and that trademarks do not fulfill that purpose does not withstand scrutiny. This Article argues that brands have evolved in such a way that they serve important incentivizing purposes of their own, and that trademark law influences their ability to do so. This Article identifies three generally neglected functions of trademarks. The first pertains to the creation of original, unique marks and brands in and …

Appearance As A Feminist Issue, Deborah L. Rhode

SMU Law Review

No abstract provided.

Parens Patriae And The States’ Historic Police Power, Margaret S. Thomas

SMU Law Review

Class actions have long been contracting as procedural vehicles in mass tort litigation. At the same time, parens patriae actions brought by state attorneys general for injuries to their state’s citizenry have been expanding. This form of public dispute has emerged as a full-fledged alternative form of aggregate litigation in mass torts. The use of this public alternative is already widespread in consumer, antitrust, environmental, and health law cases.

Despite the widespread use of parens patriae litigation by states, the source of the power to sue in this way is vague and ill-defined. Courts have struggled to articulate and explain …

Defamation: Environmental Allegations Against Fracking Companies Are Defamatory Per Se In Texas, Jessica Schauwecker

SMU Law Review

No abstract provided.

In The Eyes Of The President--Supreme Court Holds Executive Branch Has Exclusive Power To Recognize Foreign Sovereignties, Jennifer Trejo

SMU Law Review

No abstract provided.

Finding A Balance Between Securing Confidentiality And Preserving Court Transparency: A Re-Visit Of Rule 76a And Its Application To Unfiled Discovery, The Honorable Craig Smith, Grant Schmidt, Austin Smith

SMU Law Review

No abstract provided.

Irrational Investors And The Corporate Inversion Puzzle, Gregory R. Day

SMU Law Review

Despite recent legislative and administrative efforts, U.S. corporations continue to engage in a controversial business strategy known as a “corporate inversion.” A U.S. corporation performing an inversion acquires a foreign corporation and then, through a series of complex transactions, restructures in the foreign corporation’s country. In light of the United States’ burdensome corporate tax code, the inversion process allows formally American corporations to become taxable as a foreign entity, generating sizeable tax savings.

It is seldom noticed, however, that the inversion trend raises a significant corporate law puzzle regarding the misaligned incentives dividing directors and shareholders. From a corporate director’s …

Front Matter

SMU Law Review

No abstract provided.

Reconstructing Pregnancy, Sarudzayi M. Matambanadzo Dr.

SMU Law Review

Congress passed the Pregnancy Discrimination Act in 1978 to amend Title VII’s prohibition against sex discrimination to include discrimination on the basis of pregnancy, childbirth, and related medical conditions. More than thirty-five years after the passage of the Pregnancy Discrimination Act, courts have failed to fulfill its promise. This failure lies, in part, from a tendency to reduce pregnancy, with all of its social and cultural meaning, to its “purely” biological elements. For the purposes of the Pregnancy Discrimination Act, courts ground the legal conception of pregnancy in a form of biomedical essentialism that treats pregnancy as a universal given. …

Front Matter

SMU Law Review

No abstract provided.

"He Said, She Said": With A Twist, Ronen Perry, Oren Gazal-Ayal, Chen Toubul

SMU Law Review

Many studies have explored the effect of judges’ memberships in social categories, such as gender, ethnicity, religion, age, and political affiliation, on their decisions. No study has investigated whether membership in social categories affects public perceptions of judicial decisions, especially when such membership is suspected to affect one’s perception of reality. This question is important, inter alia, because the argument that the judiciary must be representative or reflective of society is partly linked to the assumption that representation enhances public trust in the judiciary. Such an assumption holds to the extent that lack of representation is perceived by members of …

The Anatomy Of The Human Rights Framework For Intellectual Property, Peter Yu

SMU Law Review

This article focuses on the complex interactions among scientific productions, intellectual property, and human rights. It begins by outlining the various arguments for or against recognizing patent rights as human rights. It then explores the proper place of intellectual property rights—in particular, patent rights—in the human rights framework for intellectual property. To help facilitate a systematic and holistic study of the framework, this article advances a layered approach to intellectual property and human rights and identifies the framework’s organizing principles and structural layers.

This article further illustrates the proposed layered framework with examples involving four different types of scientific productions: …

The Family Office Exclusion Under The Investment Advisers Act Of 1940, Nathan Crow, Greg S. Crespi

SMU Law Review

A family office is a private firm that manages the wealth of a high net worth family. This article explores Advisers Act Rule 202(a)(11)(G)1, the “Family Office Rule” which excludes qualifying family offices from regulation under the Investment Advisers Act of 1940. Section I discusses the business role played by family offices and general trends in family office governance. Section II provides an overview of the Investment Advisers Act of 1940, in order to put the family office exclusion in context. Section III comprehensively discusses the family office exclusion, including its origins in the Dodd-Frank Act of 2010 as well …

Securities Regulation--Ninth Circuit Declines To Follow Narrow Presentation Of Novel Insider Trading Interpretation Issued By Second Circuit Securities Law "Experts", Jordan Bruns

SMU Law Review

No abstract provided.

First Amendment--Student Speech--Why Bell Tolls A Review Of Tinker'S Application To Off-Campus Online Student Speech, Katherine E. Geddes

SMU Law Review

No abstract provided.

Patentable Subject Matter: Alice Does Not Permit The Dead To Frolic In A 3d Wonderland, Hao J. Wu

SMU Law Review

No abstract provided.

Front Matter

SMU Law Review

No abstract provided.

Reconciling The Premium Tax Credit: Painful Complications For Lower And Middle-Income Taxpayers, Francine J. Lipman, James E. Williamson

SMU Law Review

No abstract provided.

The New Affirmative Action After Fischer V. University Of Texas: Defining Educational Diversity Through The Sixth Amendment's Cross-Section Requirement, Adam Lamparello, Cynthia Swann

SMU Law Review

Skin color and diversity are not synonymous. Furthermore, race provides no basis upon which to stereotype individuals or groups, regardless of whether the reasons are malevolent or benign. Affirmative action policies in higher education should focus on the things that individuals have overcome, not the traits that individuals—and groups—cannot change. Currently, the opposite is true, as such policies equate racial diversity with educational diversity, thus precluding sufficient consideration of factors such as family and personal background, life experience, and the overcoming of adversity that would result in true educational diversity. This is not to say that race is irrelevant, as …

Are Hedge Funds Still Private? Exploring Publicness In The Face Of Incoherency, Cary Martin Shelby

SMU Law Review

Academics have frequently noted that the term “public” is one of the most under-theorized concepts under our federal securities laws. It has never been sufficiently defined by Congress, and issuers must instead rely on various indicators of publicness gleaned from an extensive patchwork of rules and exemptions. A prevalent indicator of publicness includes the status of investors, where investment companies that broadly offer investments to the general public, such as mutual funds and money-market funds, are required to register under a complex web of federal legislation. Relatedly, private investment companies such as hedge funds and private equity funds, which restrict …

Flushed From The Pocket: Daily Fantasy Sports Businesses Scramble Amidst Growing Legal Concern, Jonathan Bass

SMU Law Review

No abstract provided.

Laws For "Aliens And Strangers": Examining The Foreign Commerce Clause Through The Lens Of Indian Commerce Clause Law, Laura Choi

SMU Law Review

No abstract provided.

Extraordinary Results In Extraordinary Rendition, Alexander Turner

SMU Law Review

No abstract provided.

Foreword: Perspectives On Mortgage Lending Regulation, Julia Patterson Forrester Rogers

SMU Law Review

In her short foreword to a symposium issue, the author discusses the Dodd-Frank Wall Street Reform and Consumer Protection Act enacted by Congress in 2010. She then introduces the symposium papers by professors Kathleen Engel, Christopher Odinet, and Steven Schwarcz, which examine the new regulatory framework created by Dodd-Frank from different points of view and consider other types of mortgage lending regulation, including regulation at the state and local levels and proposals for macroprudential regulation. Lastly, the author concludes that mortgage lending regulation promises to continue to be an important topic of discussion, because the bursting of a housing bubble …

Macroprudential Regulation Of Mortgage Lending, Steven L. Schwarcz

SMU Law Review

Following the 2007-2008 global financial crisis, housing finance remains a major potential source of systemic weakness. In light of this predicament, a substantial amount of effort has been put forth to develop regulation to effectively improve mortgage lending and the securitization of mortgage loans. Much of this regulatory effort, however, has a primarily microprudential focus – to correct market failures in order to increase economic efficiency. This article argues in favor of macroprudential regulation of mortgage lending – intended to reduce systemic risk, the risk that a cascading failure of financial system components undermines the system’s ability to generate capital, …

Local Government And Risky Home Loans, Kathleen C. Engel

SMU Law Review

Municipalities from the Central Valley in California to Upstate New York bear the legacy of reckless mortgage lending. Foreclosed homes and toxic titles have caused blight and cost communities billions of dollars. Many cities tried to halt the risky loans by calling on state and federal legislators and regulators to intervene. Some even passed ordinances aimed at curtailing the high-cost loans that were destroying their neighborhoods. Their pleas were dismissed and their ordinances overturned. Ultimately, the subprime crisis played a central role in the great financial crisis when millions of people lost their jobs and, as a consequence, lost their …

The Unfinished Business Of Dodd-Frank: Reforming The Mortgage Contract, Christopher K. Odinet

SMU Law Review

The standard residential mortgage contract is due for a reappraisal in light of today’s mortgage lending and regulatory environment. The goals of Dodd-Frank and the CFPB have been geared toward creating better stability in the residential mortgage market, in part, by mandating more robust underwriting. This is achieved chiefly through the ability-to-repay rules and the “qualified mortgage” safe harbor, which call for very conservative underwriting criteria to be applied to new mortgage loans. And lenders are whole-heartedly embracing these criteria in their loan originations—in the fourth quarter of 2015 over 98% of all new residential loans were qualified mortgages, thus …

Rethinking Deference: How The History Of Church Property Disputes Calls Into Question Long-Standing First Amendment Doctrine, Eric G. Osborne, Michael D. Bush

SMU Law Review

Long-held constitutional principles state that where the factual foundation that underlies a decision is shown to have been wrong, the Supreme Court will reconsider that body of law. This article demonstrates that the foundations upon which the entire doctrine of church property law has been developed may be wrong, necessitating a reconsideration of that area of law. Watson v. Jones, 80 U.S. 679 (1871), a divisive church property dispute from Kentucky, marked the United States Supreme Court’s first entry into church property disputes. Prior to Watson, state courts had handled church property disputes according to the rules of …