Digital Commons Network^™

Professional Liability, Shelby Taylor, R. Max Ward, Josh Sherman

SMU Annual Texas Survey

This Article describes and analyzes major developments in professional liability law that occurred in Texas between December 1, 2022, and November 30, 2023.

Green And Proud: Protecting The Antiquities Act As A Means Of Fighting Climate Change And Promoting American Patriotism, Cameron King

SMU Law Review

This Comment addresses recent developments in Antiquities Act jurisprudence. Given the dearth of serious legal challenges confronting the Antiquities Act for the first 100 years of its existence, the past twenty-five years of near continuous controversy have made the Antiquities Act a hot-button issue in environmental law and politics.

As recently as two years ago, the nature of scholarly interest in the Antiquities Act was vastly different. Then, the issue was President Trump’s reduction of the sizes of two major monuments. Questions surfaced about the President’s ability to make such a reduction. With the election of Joe Biden and the …

Make America Healthy: Reducing High Pharmaceutical Prices Without Reducing Innovation, Srividhya Ragavan

SMU Law Review

Cost of medication in the United States has historically remained one of the highest in the world. The conundrum that the United States has faced in balancing innovation with affordability of life-saving medications is palpable, especially when faced with the reality of patent monopolies conflicting with healthcare obligations. The result is an overflow of issues, which emphasize the need to delineate limits on innovation to balance pharmaceutical novelty with robust public health within the United States. This has increasingly shifted the focus of patent law into the realm of healthcare issues. Naturally, it leads to an inquiry about how best …

The Copyright Requirement Of Human Authorship For Works Containing Artificial Intelligence-Generated Content, Runhua Wang

IP Theory

The U.S. Copyright Office (the “Office”) unwaveringly refuses to register copyrights for artworks created by artificial intelligence (“AI”) systems. The prima facie reason is a lack of authorship because the U.S. copyright regime recognizes only humans as authors. However, the fundamental reason lies in the fact that legislators have not yet determined whether to grant copyrights to AI users. Despite adjustments made by the Office in response to the use of AI systems in creation, the agency’s implementation of copyright statutes suggests that it remains extremely conservative, rejecting any AI-generated content (“AIGC”) from copyright registration.

Will the copyright regime continue …

Can Crt Save Dei?: Workplace Diversity, Equity & Inclusion In The Shadow Of Anti-Affirmative Action, Tanya K. Hernandez

Faculty Scholarship

Just four years after the nation’s summer of 2020 protests—sparked by the murder of George Floyd— culminated in a racial reckoning in which many organizations across the country instituted racial equity measures and policies, legislators across the nation are enacting anti-Critical Race Theory (CRT) bans in a seeming backlash to this advocacy for racial justice. The bans simultaneously mischaracterize CRT as anti-White discrimination while strategically conflating it with workplace diversity, equity, and inclusion (DEI) initiatives. Further inflaming the racially hostile public discourse is the U.S. Supreme Court’s recent decision in Students for Fair Admissions v. Harvard (2023), which greatly narrows …

Investigating The Relationship Between Politics And Education, Alaina M. Winrow

Honors Theses and Capstones

This paper looks into how politics plays a role in the public K-12 education system in the United States, specifically looking at the state of New Hampshire. Federal, state, and local governments provide important resources through funding to schools and create the laws that govern them. However, educational politics can be controversial at times. Within the past several years, there have been more tense school board meetings and divisive laws being passed or considered around the nation. Overall, the divisive political climate has influenced much of the discussion surrounding education and has created more stress for educators, administrators, school staff, …

Tsai Today (2024), Southern Methodist University, Dedman School Of Law, Tsai Center For Law, Science And Innovation

Tsai Today

No abstract provided.

The Trouble With Classifications, Aziz Z. Huq

Public Law and Legal Theory Working Papers

The Supreme Court relies increasingly on anti-classification rules to implement the Constitution’s commands of even-handed state treatment. These rules direct attention to whether an instance of a forbidden classification is present on the face of a challenged law. They contain two necessary steps. First, a court defines a general category of impermissible terms. Second, a court ascertains whether an instance of the category is found in enacted text—triggering the familiar strict scrutiny analysis. So defined, anti-classification rules now dominate Equal Protection, Free Speech, ‘dormant’ Commerce Clause, and even Free Exercise jurisprudence. The Roberts Court celebrates them as “commonsense,” citing their …

Trade Secrecy's Information Paradox, Christopher Buccafusco, Jonathan S. Masur, Deepa Varadarajan

Public Law and Legal Theory Working Papers

Trade secret law is meant to encourage socially beneficial behaviors by permitting firms to protect their investments in the creation of valuable information. In theory, the ability to protect valuable information will make firms more likely to create that information in the first instance. But the law can also be used to shield socially harmful behaviors from public oversight. Firms can assert trade secret protection to prevent journalists, watchdogs, and criminal defendants from learning whether they are engaged in dangerous, wrongful, or biased activity. Ideally, trade secret law should sort socially beneficial uses from socially harmful ones, permitting only the …

Administrative Enslavement, Adam Davidson

Public Law and Legal Theory Working Papers

There are currently over a million people enslaved in the United States. Under threat of horrendous punishment, they cook, clean, and even fight fires. They do this not in the shadow of the law but with the express blessing of the Thirteenth Amendment’s Except Clause, which permits enslavement and involuntary servitude as punishment for a crime.

Despite discussions of this exception in law reviews, news reports, and Netflix documentaries, few commentators have recognized that this enslavement happens silently. No prosecutor, judge, or defense attorney tells convicted people that they will be enslaved as punishment for their crime. It is only …

Politicians The Founders Warned You About, Neil Fulton

UC Law Constitutional Quarterly

Many articles have explored the Founders’ intentions regarding the constitutional text. Much less attention has focused on the Founders’ ideas regarding the traits needed of the leaders in a constitutional republic. The Constitution focuses on governing structures, many of which relate to the electoral process. The Constitution does not spell out the ideal traits of the leaders elected pursuant to those processes. Nonetheless, the Founders possessed clear views about the virtues and qualifications that ideal political leaders required. Indeed, the Founders issued warnings about certain archetypal political figures who, because of their flagrant disregard of the ideal virtues and qualifications, …

Skinny Labels: Changing Scenario Of Induced Infringement And Public Policy, Sandhu, Amit Dhillon

Santa Clara High Technology Law Journal

A patent is an exclusive right granted for an invention to the inventor. However, when it comes to life-sustaining products, these exclusive rights have a negative impact on people’s lives. The government has tried to develop initiatives, such as the Hatch-Waxman Act, to compensate and speed up the entry of affordable medicines into the market. But when one patent addressing one medical condition (indication) blocks the entry of the generic, the use of skinny labels makes it possible for the generic players to carve out the label and enter the market only with indications that are off-patent. This helps bring …

Against Associational Standing, Michael T. Morley, F. Andrew Hessick

Scholarly Publications

Associational standing is a widely used doctrine that has never been subject to serious academic scrutiny. It allows an organization that has not suffered any injury in fact to sue in its own name to assert its members' causes of action. Though the doctrine is often associated with public interest groups, major corporations have usurped it to be able to sue, through trade groups or entities created solely to pursue a particular lawsuit, without becoming party litigants to the case.

The Supreme Court first recognized associational standing as an offshoot of third-party standing to allow an organization that had suffered …

Transforming Legal Sex, Noa Ben-Asher

North Carolina Law Review

No abstract provided.

Making A Mother: The Supreme Court And The Constitutive Rhetoric Of Motherhood, Lucy Williams

North Carolina Law Review

No abstract provided.

Wto Law And Environmental Processes And Production Methods (Ppms): A Deconstruction, Irene Musselli

Indian Journal of International Economic Law

In principle, WTO members can adopt PPM measures to protect the environment, provided certain conditions are met to prevent the misuse of these measures for protectionist purposes. In practice, the judicial review of such measures in the WTO context is punctuated by practical difficulties, and is fraught with intractable uncertainty: most PPM regulations that were challenged passed on principle but failed on specific details related to the dispute at hand. This article aims to contribute to the PPM discussion by providing critical and deconstructive perspectives on trade law. It argues that the challenges in assessing WTO compliance of PPMs stem …

Wipo Negotiations On Intellectual Property, Genetic Resources And Associated Traditional Knowledge, Peter K. Yu

Faculty Scholarship

At the 2000 General Assembly, the World Intellectual Property Organization (WIPO) established the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) to address intellectual property issues relating to genetic resources, traditional knowledge (TK) and traditional cultural expressions (TCEs). Although the IGC initially focused its work on studying these issues, it obtained a new mandate to accelerate its work in October 2009 and began text-based negotiations on an international instrument, or international instruments, a few months later. These negotiations paved the way for WIPO to convene a diplomatic conference to conclude an International Legal Instrument Relating …

Narrow But Deep: The Mcculloch Principle, Collective-Action Theory, And Section Three Enforcement, Neil S. Siegel

Faculty Scholarship

In Trump v. Anderson, 144 S. Ct. 662 (2024), the Supreme Court of the United States held that the Colorado Supreme Court erred in excluding President Donald J. Trump from the Republican Party's primary ballot in the state.  The Court reasoned that the Constitution makes Congress, not the states, solely responsible for enforcing Section 3 of the Fourteenth Amendment.  Scholars of Section 3 have demonstrated that Section 3 is self-executing, so the Court's rationale lacks a sound basis in the original or contemporary meaning of the text of the Civil War Amendments, the original intent of their drafters, or …

Preservation Through Transformation: An Interpretive Analysis Of Title Vii’S Failure To Secure Remedy For The Wrongs Of Workplace Sexual Harassment, Halle Rudman

CMC Senior Theses

The establishment of Title VII of the Civil Rights Act of 1964 as federal law was a pivotal moment in the pursuit of workplace equality and eradication of discrimination. Unfortunately, the application of Title VII in sexual harassment cases has fallen short of the statute’s noble intentions. In this paper, I argue that the judicial treatment of Title VII has been disloyal to its original purpose, perpetuating systemic inequalities and hindering progress towards gender equality in the workplace. I first establish a framework for the reasonable construction of a statute, drawing on work from various legal theorists to establish three …

Aducanumab, Accelerated Approvals & The Agency: Why The Fda Needs Structural Reform, Matthew Herder

Articles, Book Chapters, & Popular Press

The US Food and Drug Administration’s controversial decision to grant accelerated approval to aducanumab (Aduhelm), a therapy for Alzheimer’s disease, has motivated multiple policy reforms. Drawing upon a case series of other drugs granted accelerated approval and interviews of senior FDA officials, I argue that reform should be informed but not defined by aducanumab. Rather, structural reforms are needed to reshape FDA’s core priorities and restore the regulatory system’s commitment to scientific rigor.

The American Antimonopoly Tradition: Origins, Contradictions, Transformations, Daniel A. Crane

Articles

Proponents of antitrust reform argue for the rediscovery of an American antimonopoly tradition that predated the Sherman Act by centuries and suggests the reimagination of a more robust contemporary policy against concentrated economic power. But historically there have been a number of distinct and often contradictory strands of American antimonopoly. The American colanists inherited a weak, recent, and largely invented antimonopoly common law tradition focused on exclusive grants of privilege from the crown. In the nineteenth century, antimonopoly became a generative and ubiquitous concept in state legislatures and courts, but one with multiple, inconsistent meanings that evolved in the decades …

Making Sense Of 303 Creative: A Free Speech Solution In Search Of A Problem, David S. Schwartz

Constitutional Commentary, Vol. 37 and later (2023–present)

In 303 Creative v. Elenis, the Supreme Court held that a website designer had a First Amendment right to refuse to create wedding websites for same-sex couples, even though she would create such websites for opposite-sex couples and despite the fact that her refusal violated a Colorado antidiscrimination law. 303 Creative purports to resolve a tension between freedom of speech and public accommodations laws as applied to “creative professionals” whose products or services are expressive. But this problem is largely theoretical. It did not really exist outside a small handful of ginned-up controversies between purportedly creative wedding-related businesses run by …

Effects Of Dehumanization And Disgust-Eliciting Language On Attitudes Toward Immigration: A Sentiment Analysis Of Twitter Data, Katherine S. Wahrer, Cynthia J. Najdowski, John V. Passarelli

Psychology Faculty Scholarship

Attitudes towards immigration have been shown to be driven by dehumanization and disgust. The more people dehumanize immigrants and the more disgusted they feel, the more negative attitudes they tend to have toward immigrants. However, little is known about how exposure to social media content that links dehumanization, disgust, and immigration influences users’ attitudes on this issue. This is important to consider because the majority of adults in the United States are on social media. We used Twitter data, machine learning, and sentiment analysis to investigate whether exposure to dehumanizing or disgust-eliciting tweets about immigration impacts users’ own sentiment toward …

Separation Of Structures, Alex Zhang

Faculty Articles

This Article makes three main contributions. First, it fleshes out the theory of separation of structures as distinct from contemporary scholarly approaches. Second, it writes the intellectual history of separation of structures, which has been an integral part of the separation of powers enterprise since its inception, including at the Founding. Third, it explores the scholarly and doctrinal implications of structural separation of powers. In particular, adjudicating the constitutionality of agency structures requires methodological pluralism that incorporates the normative values underlying the structural design. That is, under separation of structures, current doctrine should evolve beyond the formalism heavily criticized by …

Criminal Recordkeeping, Andrew K. Jennings

Faculty Articles

Business managers must create and keep records for decision-making. Yet doing so presents an obvious problem for those who manage illegal businesses: their records would make for powerful evidence in the hands of prosecutors. That problem raises a question—why would one knowingly create and keep such records when their mere existence risks detection and sanction? The answer, in short, is that the interaction of illicit activity’s complexity and continuity compels recordkeeping. A business, including a criminal one, cannot be managed without adequate information about its operations, obligations, and condition. Just how complex and long-lived its affairs are will drive the …

Climatizing National Security, Mark P. Nevitt

Faculty Articles

Is climate change a national security issue? Human security? Ecological security? This Article addresses the growing nexus between climate change and various conceptions of security with a particular emphasis on climate change's national security impacts. This Article argues that there is a growing connection between national security and climate change and a corresponding need to address the normative implications of "climatizing national security." This connection can be observed through three lenses: mitigation (reducing greenhouse gas emissions from military and national security sources); adaptation (investing in climate resilient infrastructure in an effort to prepare for climate impacts), and response (addressing climate-exacerbated …

Don't Kill The Baby! The Case For Ai In Arbitration, Michael J. Broyde, Yiyang Mei

Faculty Articles

Since the introduction of Generative AI (GenAI) in 2022, its ability to simulate human intelligence and generate content has sparked both enthusiasm and concern. While much of the criticism focuses on AI’s potential to perpetuate bias, create emotional dissonance, displace jobs, and raise ethical questions, these concerns often overlook the practical benefits of AI, particularly in legal contexts. This article examines the integration of AI into arbitration, arguing that the Federal Arbitration Act (FAA) allows parties to contractually choose AI-driven arbitration, despite traditional reservations.

This article makes three key contributions: (1) It shifts the focus from debates over AI’s personhood …

Cultivating Attentiveness To Law In India Through Legal Anthropology, Deepa Das Acevedo, Jahnavi Chamarthi

Faculty Articles

This Article reviews and analyses scholarship at the intersection of anthropology and law. The first half of the Article provides context for understanding the boundaries, animating concerns, and tensions that have characterised the anthropology of law as an area of interdisciplinary inquiry. We focus especially on the subdiscipline’s Anglo-American history and show how a promising early period of engagement dissipated as both anthropologists and legal scholars lost enthusiasm for each others’ insights and methods. Then, we expand our analysis outward. Because legal anthropology belongs within, and is increasingly attentive to, the broader field of law and society scholarship, we explore …

Legal Loopholes And Uncertainties Of Nominee Structures Under Foreign Business Law Of Thailand: Comparative Analysis With Austrian Investment Law, Harald Hinterer

Chulalongkorn University Theses and Dissertations (Chula ETD)

Laws and regulations concerning foreign direct investments in Thailand are at an all-time high. One of the most relevant legal bases for foreign direct investment is the Foreign Business Act B.E. 2542 (1999) (the “FBA”), which imposes restrictions on certain business activities. This research paper critically examines the effectiveness of the FBA in regulating foreign direct investment, with particular attention to nominee structures that may be used to circumvent statutory ownership restrictions. While the FBA aims to strike a balance between attracting foreign investment and protecting national interests, by focusing solely on capital shareholding, it contains loopholes which permit a …

การพัฒนามาตรการทางกฎหมายเพื่อการส่งเสริมการบริจาคอาหารส่วนเกินในธุรกิจที่ประกอบกิจการเกี่ยวกับอาหาร, สุดจิรา เรืองทิพย์พิพัฒน์

Chulalongkorn University Theses and Dissertations (Chula ETD)

งานวิจัยฉบับนี้มีจุดมุ่งหมายเพื่อศึกษากฎหมายและนโยบายที่เกี่ยวข้องกับการส่งเสริมการบริจาคอาหารส่วนเกินในภาคธุรกิจอาหาร ซึ่งเป็นกลไกสำคัญในการลดขยะอาหาร เสริมสร้างความมั่นคงทางอาหาร และสนับสนุนเป้าหมายการพัฒนาที่ยั่งยืน (SDG 2 และ SDG 12) โดยใช้การวิจัยเอกสารเปรียบเทียบกฎหมายไทยกับกฎหมายของสหรัฐอเมริกา สหภาพยุโรป (โดยเฉพาะฝรั่งเศส) และแคนาดา ร่วมกับการประมวลทฤษฎีเศรษฐศาสตร์สิ่งแวดล้อมและเศรษฐกิจหมุนเวียน เพื่อศึกษาทางกฎหมายด้านความรับผิดของผู้บริจาค แรงจูงใจทางภาษี มาตรฐานความปลอดภัย ตลอดจนความเป็นไปได้ในการนำเครื่องมือคาร์บอนเครดิตมาใช้ในบริบทไทย ผลการวิจัยพบว่า ประเทศไทยยังขาดกฎหมายเฉพาะในการคุ้มครองผู้บริจาค ขาดสิทธิประโยชน์ทางภาษี และยังไม่มีแนวทางกลางด้านความปลอดภัยของอาหารบริจาค ซึ่งเป็นอุปสรรคต่อการส่งเสริมการบริจาคจากภาคธุรกิจ ผู้วิจัยเสนอให้ตราพระราชบัญญัติส่งเสริมการบริจาคอาหารและลดการสูญเสียอาหาร กำหนดนิยาม หลักเกณฑ์ และความคุ้มครอง จัดตั้งกองทุนเยียวยาและสนับสนุนระบบประกันภัย เพิ่มสิทธิประโยชน์ทางภาษี พัฒนา ระบบ e-Donation ควบคู่การตรวจสอบย้อนกลับ ออกแนวทางกลางด้านความปลอดภัย และนำการบริจาคอาหารเข้าสู่โครงการ T-VER มาตรการเหล่านี้จะสร้างกรอบกฎหมายที่ส่งเสริมการบริจาคอย่างรอบด้าน สอดคล้องกับหลักนิติธรรม ประโยชน์สาธารณะ และความยั่งยืนของประเทศ