Digital Commons Network^™

Are We Trapped By Realization?, Reuven S. Avi-Yonah

Articles

In this installment of Reflections With Reuven Avi-Yonah, Avi-Yonah examines the downsides of the realization requirement and potential solutions to them. In an excellent Tax Notes article, Steven Sheffrin recently mounted the most convincing defense of the realization requirement I have read. He explained that the case for taxing unrealized capital gains is based on the Haig- Simons definition of income. In this definition, income equals consumption plus savings when savings includes both realized and unrealized capital gains. If asset prices change because of changes in future cash flows, Haig-Simons income can provide an appropriate guide for designing tax policies.

Environment Scan Of Generative Ai Infrastructure For Clinical And Translational Science, Hua Xu, Jiang Bian, Chunhua Weng, Yifan Peng, Betina Idnay, Zihan Xu, William G. Adams, Mohammad Adibuzzaman, Nicholas R. Anderson, Neil Bahroos, Douglas S. Bell, Cody Bumgardner, Thomas Campion, Mario Castro, James J. Cimino, I. Glenn Cohen, David Dorr, Peter L. Elkin, Jungwei W. Fan, Todd Ferris, David J. Foran, David Hanauer, Mike Hogarth, Kun Huang, Jayashree Kalpathy-Cramer, Manoj Kandpal, Niranjan S. Karnik, Avnish Katoch, Albert M. Lai, Christophe G. Lambert, Lang Li, Christopher Lindsell, Jinze Liu, Zhiyong Lu, Yuan Luo, Peter Mcgarvey, Eneida A. Mendonca, Parsa Mirhaji, Shawn Murphy, John D. Osborne, Ioannis C. Paschalidis, Paul A. Harris, Fred Prior, Nicholas J. Shaheen, Nawar Shara, Ida Sim, Umberto Tachinardi, Lemuel R. Waitman, Rosalind J. Wright, Adrian H. Zai, Kai Zheng, Sandra Soo-Jin Lee, Bradley A. Malin, Karthik Natarajan, Nicholson Price, Rui Zhang, Yiye Zhang

Articles

This study reports a comprehensive environmental scan of the generative AI (GenAI) infrastructure in the national network for clinical and translational science across 36 institutions supported by the CTSA Program led by the National Center for Advancing Translational Sciences (NCATS) of the National Institutes of Health (NIH) at the United States. Key findings indicate a diverse range of institutional strategies, with most organizations in the experimental phase of GenAI deployment. The results underscore the need for a more coordinated approach to GenAI governance, emphasizing collaboration among senior leaders, clinicians, information technology staff, and researchers. Our analysis reveals that 53% of …

Voter Harassment And The Limits Of State And Federal Power, Ellen D. Katz

Articles

Acts of voter harassment are often difficult to prevent. One longstanding, albeit underused, tool for addressing such harassment is found in section 11(b) of the Voting Rights Act (VRA). Continued use of the provision, however, is threatened by recent decisions restricting private enforcement of the VRA. This Essay examines one challenge to such enforcement, exploring the linkage between section 11(b)’s prohibition on voter intimidation and the enforcement of constitutional voting guarantees, on which private enforcement of the provision presently depends. It invites consideration of the idea that this linkage is sufficient and private enforcement is appropriate because section 11(b) provides …

Creditors, Shareholders, And Losers In Between: A Failed Regulatory Experiment, Albert H. Choi, Jeffery Zhang

Articles

In the aftermath of the 2007–08 Global Financial Crisis, regulators encouraged many of the world’s largest banks to hold a new type of regulatory instrument with the goal of improving their safety and soundness. The regulatory instrument was known as a “CoCo,” short for contingent convertible bond. CoCos are neither debt nor equity. They are something in between, designed to give the bank a shot in the arm during times of stress. Many of the largest international banks have issued CoCos worth hundreds of billions of dollars. After more than ten years—a decade that includes the collapse of Credit Suisse …

Memory, Resistance, And Doubt, Richard Primus

Articles

Burroughs v. United States is not a famous case. But it could be. Its central character was a famous man. James Cannon, Jr., was a bishop in the Methodist church, a player in the worlds of business and banking, a ruthless political power broker, and a zealous Prohibitionist. In Virginia, where he lived, his role within the Democratic Party earned him the informal title of “the dry boss of the state,” and his influence extended well beyond the Old Dominion. Indeed, the essayist H.L. Mencken identified Cannon as the most important Prohibitionist in the country. “More than any other man,” …

Secrets Of The Killing State: The Untold Story Of Lethal Injection Introduction, Corinna Barrett Lain

Law Faculty Publications

Three hours. That’s how long it took the state of Alabama to kill Joe Nathan James by lethal injection in 2022, setting a new record for the longest execution in United States history. James’s autopsy showed puncture wounds and bruising at the knuckles and wrists, indicating that executioners had tried (and failed) to insert an IV in those locations. It revealed puncture wounds in his musculature, nowhere near the anatomical vicinity of a vein. And it documented a deep, jagged incision that pathologists suspect occurred when James flinched as executioners were attempting to perform a “cutdown”— a surgical incision used …

Social Murder And The Antisocial Contract, Marissa Jackson Sow

Law Faculty Publications

Social murder is widely understood as the reckless and calculated killing by the State of people who are considered surplus and thus made redundant by the State. It is not merely an outcome, however; social murder, is an antidemocratic process, and—certainly as it is manifesting in the United States under the second Trump Administration—is also an anti-constitutionalist project aimed at destroying society, eliminating social goods, and renegotiating an American social contract that is, definitionally, antisocial. Social murder is as much about the elimination of social life as it is about the interruption of physical life. And it is fueled by …

Brief Of Amicus Curiae Professor Corinna Barrett Lain In Support Of Neither Party, Corinna Barrett Lain

Law Faculty Publications

“I don’t think it’s a secret that we inherited one of the worst, most incompetent and most ill-funded Department of Corrections in the country. . . [a]nd I don’t think it takes a leap to suggest that we should understand whether they are capable of carrying out the death penalty before we do it.” That is how Attorney General Kris Mayes described Arizona’s Department of Corrections, Rehabilitation & Reentry (“ADCRR”) less than two years ago. Ryan Thornell, director of the ADCRR, agreed, attesting in a declaration in 2023 that the ADCRR lacked “the necessary institutional knowledge and expertise to conduct …

Crypto And The Fiduciary Investor, Eric D. Chason

Faculty Publications

Without much aid from MPT [modern portfolio theory], how should courts approach claims of imprudent investment in cryptocurrency? Courts might take this lack of aid as itself relevant. If MPT cannot place cryptocurrency in a portfolio, then perhaps fiduciary investors should refrain from doing so. Taking this approach would, however, overextend the prudent investor rule’s reliance on MPT. While the creators of the prudent investor rule certainly relied on MPT, the prudent investor rule does expressly adopt it. Moreover, courts should be wary of fixing investment practices in place. It would be ironic if the prudent investor rule, which intended …

The Kincare Craze In Child Protection: Romanticism, Subterfuge, And Racial Separatism, James G. Dwyer

Faculty Publications

Among recent developments in family law, the most prevalent issue on legislative agendas has been Kincare as an alternative to non-relative foster care when maltreated children cannot remain with parents. Long an available option legally but traditionally regarded with skepticism by child protection workers, Kincare is now idealized. A steady stream of state legislative bills aims to encourage or command child protection and foster care agencies to place maltreated children in the home of relatives or friends of their parents whenever one is available, ostensibly based on an assumption that this is categorically better for children than living with unrelated …

Patenting The Taboo: Sex, Drugs, And Abortion, Andrew Gilden, Sarah R. Wasserman Rajec

Faculty Publications

The patent system provides a surprisingly rich archive of the interplay between social norms and technological change. Patent law requires applicants to publicly disclose the novelty and usefulness of their inventions, thereby bringing to light areas of innovation that may have previously lived in the shadows. In other words, patent law encourages public disclosure of technologies that are taboo—developed and practiced in secret, for reasons such as social approbation, illegality, or religious sanctity. To obtain a patent for a taboo technology, patentees must establish their legitimacy as innovators while navigating cultural norms that are hostile to their fields of innovation. …

No Knock? No Case: Prosecutorial Deterrence As A Countermeasure To No-Knock Warrants, Tamika Griffin Moses

Law Faculty Publications

The high-profile deaths of Amir Locke and Breonna Taylor ignited a national debate surrounding the legitimacy of no-knock warrants. Their deaths are part of a cycle of reaction and inaction that permeates this debate. As the impacted communities and segments of the populace respond by demanding that federal and state legislatures abolish or severely restrict the use of no-knock warrants, they are met with inaction. The legislative bodies have failed to pass laws banning the warrants and judges continue to sign them. This inaction continues to undermine the public’s trust in law enforcement and challenges the legitimacy of a democracy …

Impacts Of Recent Us Supreme Court Administrative Law Jurisprudence On The Electricity Wholesale Markets, Joel B. Eisen

Law Faculty Publications

Recent decisions by the US Supreme Court have prompted a shift toward limiting the authority of US federal administrative agencies, including the Federal Energy Regulatory Commission (FERC), the agency that oversees the nation’s wholesale electricity markets. This Article explores the impact of several of the Court’s major decisions on rules and administrative orders by FERC that govern the wholesale markets. These include decisions empowering judges to overturn agency regulations, enabling challengers to agency enforcement to force agencies to pursue cases in federal courts, and allowing lawsuits to challenge agency rules long after their issuance. These decisions promise to have significant …

Reparations For Civilian Victims In Ukraine And Gaza: Legal Frameworks, Normative Debates, And Implementation, Chiara Giorgetti

Law Faculty Publications

Reparations for the victims of armed conflict and mass human rights violations are a cornerstone of international law. Yet, as recent conflicts in Ukraine and Gaza illustrate well, reparations remain a difficult subject and raise important questions regarding the scope of State responsibility, the rights of individual victims, and the availability of appropriate mechanisms for adjudicating claims. [...]

Interrogating Miranda's Custody Requirement, Lauren E. Clatch

Law Faculty Publications

Interrogating officers need only issue Miranda warnings in “custodial” settings, and a significant degree of psychological coercion makes a setting custodial. This Article asks a question at the heart of Miranda caselaw: Have courts applied Miranda’s custody trigger consistent with people’s real experiences of police questioning? If not, courts are allowing, and justifying, the admission of unwarned self-incriminating statements by deeming those interrogations “noncustodial” even when there is a significant element of compulsion. To compare courts’ custody decisions to civilians’ perceptions of coercion in interrogations, I surveyed laypeople across two studies using forty interrogation scenarios from jurisdictionally diverse cases spanning …

Artificial Intelligence And Energy Democracy, Joel B. Eisen, Heather E. Payne

Law Faculty Publications

Artificial intelligence (AI) is quickly transforming many professional activities, and the electric grid has already started to see adverse impacts from its use, such as the burgeoning demand for electricity from data centers. This Article acknowledges these impacts, but also demonstrates that AI can be put to beneficial use on the grid. It proposes and describes a specific use of AI: assisting citizen intervenors in public utility commission (PUC) proceedings, who currently face barriers to participation due to the technical complexity and confidentiality imposed by monopoly utilities. The Article describes how AI can assist intervenors to overcome the barriers to …

Tribute To Professor C. Paul Rogers Iii, Kathrine Maldonado

SMU Law Review

No abstract provided.

Regulating The Forever Wild, Edward W. De Barbieri

SMU Law Review

Communities in rural areas regularly come into conflict with government bodies regarding the use of protected lands. From New York, to Alaska, to Nevada—and many places in between—a common question emerges: who should have authority to regulate human activity on and around wilderness lands? It is not a new phenomenon for urban dwellers, often controlling money and political power, to use influence and a specter of conservation to control what is permitted in rural spaces. Resulting unrest among rural resi­dents may be the result of the exclusion of poor, racially underrepresented, indigenous, and other residents who earn their livelihood from …

Obituary For The Birth Certificate, Malinda L. Seymore

SMU Law Review

Have birth certificates outlived their usefulness? Birth certificates establish an individual’s name, identity, age, race, sex and gender, parental authority, and citizenship. In addition, the information collected at the time of birth and reflected on a long-form birth certificate provides data for public health policy, population statistics, internal migration, government planning, and resource allocation. Birth certificates are also the all-access pass to American life, necessary for many functions of modern life: registering a child in school, signing a child up for soccer, getting a driver’s license and passport, enlisting in the military, and applying for government benefits. All of this, …

The Future Of Frozen Embryos, Clare Ryan, Benjamin J. Mcmichael

SMU Law Review

he 2024 Alabama Supreme Court decision in LePage v. Center for Reproductive Medicine, which declared frozen embryos to be “children,” represents a significant shift in the legal treatment of in vitro fertilization (IVF) in the United States. This Article examines the context, implications, and potential consequences of LePage for family law, tort law, and access to reproductive technologies. The Article analyzes how this shift could impact disputes over embryo disposition, establishment of legal parentage, and liability for fertility clinics. It also explores the decision’s relationship to broader debates about fetal personhood in the wake of Dobbs v. Jackson Women’s …

Socially Responsible Ai In The Gpt Era, Yussuf A. Aleem

SMU Law Review

Recent advancements in artificial intelligence (AI) showcase its rapid evolution and promise, with the potential to profoundly transform decision-making, self-expression, and even the practice of law. However, AI also presents formidable challenges, including the further entrenchment of societal inequalities, widespread labor disruption, and existential threats to humanity. Modern AI systems show early signs of general intelligence, enabling them to perform a wide range of tasks beyond those of chatbots in both virtual and physical environments. Despite industry assurances of responsible AI development, these technologies are easily exploited and often exhibit troubling behaviors that even their creators struggle to understand.

This …

Front Matter

SMU Law Review

No abstract provided.

The Neuroscience Of Evidentiary Rules: The Case Of The Present Sense Impression, Christopher S. Sundby

SMU Law Review

The Federal Rules of Evidence (FRE) play a critical role in federal trials by determining what evidence the jury will be allowed to hear. Nonetheless, the rules are largely premised on untested psychological assumptions. The Present Sense Impression Rule (PSIR), for example, is an exception to the general ban against hearsay based on the assumptions that statements about contemporaneous events have fewer memory errors; are less likely to be lies; and, when they are lies, that listeners are better able to detect the lie than if the declarant has had time to prepare.

The rule, in other words, is based …

Guilty Pleas Matter: Waivers And The Forgotten Solemnity Of A Sacred Process, Julian A. Cook Iii

SMU Law Review

Approximately 98% of federal cases are resolved by means of a guilty plea. Thus, it is the guilty plea hearing, not the jury trial, that is the heart and lungs of our criminal justice system. Given the frequency of its use, coupled with the deeply impactful personal consequences that necessarily accompany a conviction, district courts play a critical evaluative and safeguarding function. As famously stated by the Supreme Court in Brady v. United States, the decision to plead guilty “is a grave and solemn act to be accepted only with care and discernment . . . .”

Guilty Pleas …

Improving Regulatory Notice, Joshua Ulan Galperin, E. Donald Elliott

SMU Law Review

Effective notice of law is the cornerstone of any legal system, and yet many federal administrative agencies do not give small businesses, NGOs, and interested citizens notice of the vast amount of new or modified law they produce. They merely publish the text in the Federal Register, which works tolerably well for larger enterprises but not their smaller competitors and citizens’ groups. Despite these facts, few scholars have explored how agencies provide notice of the law. Even fewer have proposed ways that agencies could improve the methods they use for giving more effective notice of significant regulatory changes and …

Protect My Property, Not My Privacy!: How A Recent Circuit Split Illustrates The Need To Reinstate The Traditional Property-Based Fourth Amendment Framework, Mary Katherine Smith

SMU Law Review

The Fourth and Fifth Circuit’s split calls for reexamination of the Fourth Amendment search framework—a framework that revolves around one’s reasonable expectation of privacy. The underlying question motivating this Comment is how to account for individual privacy in a world where, arguably, old notions of privacy no longer exist. And ironically the answer lies in shifting the focus from privacy to property. The circuit split over geofence searches is a symptom of a larger problem: The current Fourth Amendment search framework is unworkable in the digital age.

Thus, this Comment has dual objectives. The first objective is analyzing the geofence …

Agency Capture In Immigration Law, Shalini Bhargava Ray

SMU Law Review

Debates over administrative law doctrine and practice have long occurred in the shadow of agency capture, a phenomenon by which private interests co-opt an agency’s public mission. Scholars posit that capture often operates through the migration of agency personnel to the very industries they previously regulated and vice versa, referred to as the “revolving door.” The tremendous administrative law literature on agency capture, however, has never systematically addressed the potential relevance of capture to immigration regulation and enforcement. Given the vastness of the immigration bureaucracy, the massive annual appropriations it commands, and immigration’s salience in public discourse, the possibility of …

The Homeowner Strikes Back: The Rise Of Antisquatter Laws, Sam Fowler

SMU Law Review

Beginning in 2024, a host of states across the country began enacting or considering new laws targeting squatting that seek to expedite the removal of squatters. Generally, these antisquatting laws create criminal penalties for squatters, allow sheriffs to remove squatters, and shorten the time for eviction. This wave of legislation is generally attributed to several viral videos and news stories about squatters that seem to game the system by moving into unattended homes, even those where the rightful owners or tenants are living, and then claiming they have a lease. The owners will generally call the police, who are unable …

You’Ve Got Mail—Or Not? The Deepening, Decades-Long Circuit Split Surrounding The Tax Filing Mailbox Rule, Colton Franks

SMU Law Review

Tax filing deadlines have always been a source of anxiety for U.S. citizens, and the law surrounding the subject is equally perplexing. Federal courts developed a mailbox rule to determine whether a document is timely filed through the mail, but the federal circuits did not agree on how it functioned. Congress subsequently passed Section 7502 of the Internal Revenue Code to clear up confusion among the circuits. However, this only sparked a new debate—whether the statute takes the place of the common law mailbox rule or merely adds another avenue for the taxpayer to prove timely filing. This circuit split …

After Identity: Reverse Discrimination, Anti-Essentialism, And The Future Of Title Vii, Maayan Sudai, Lihi Yona

SMU Law Review

This Article argues that the Supreme Court’s unanimous decision in Ames v. Ohio Department of Youth Services marks a turning point in Title VII’s long-standing struggle with identity. By striking down the “background circumstances” rule, a doctrine that required majority-group plaintiffs to meet a heightened evidentiary burden, the Court appeared at first glance to reaffirm its steady march toward strict anticlassification. We offer a different reading. We contend that Ames gestures toward a third, overlooked normative framework within antidiscrimination law: anti-essentialism. This framework, rooted in feminist, critical race, and queer theory, rejects both the rigidity of anticlassification and the categorical …