Digital Commons Network^™

The Persistence Of Common Law Limits On Armed Travel In The Early Republic: Surety And Affray Laws In Historical Context, Saul Cornell

SMU Law Review

In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court abandoned the two-step test that had emerged after its landmark, but controversial ruling in District of Columbia v. Heller. The new approach announced in Bruen rejected the second prong of this test, casting aside means end scrutiny, or balancing, in favor of a “text, history, and tradition” approach. More recently, in United States v. Rahimi, the Court clarified some of the confusion over its Bruen test. One ongoing problem that lawyers and judges face when implementing this framework flows from the nature of materials …

Second Amendment Originalism, “General Law,” And Rahimi’S Two-Fold Failure, Nelson Lund

SMU Law Review

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

New York State Rifle & Pistol Association v. Bruen (2022), set out a bold new standard of review for Second Amendment cases. The Court rightly repudiated the intermediate-scrutiny approach adopted by the circuit courts after District of Columbia v. Heller (2008). Bruen purported to require that any gun regulation falling within the plain text of the Amendment be upheld only if the government can demonstrate that the regulation is consistent with America’s historical …

Levels Of Generality, The Limits Of Originalism, And The Supreme Court’S Second Amendment Jurisprudence, Amanda L. Tyler

SMU Law Review

Just how originalist is the Court’s Second Amendment jurisprudence after United States v. Rahimi? This is perhaps one of the biggest questions left in the decision’s wake. As it turns out, the answer is not altogether clear post-Rahimi. This is because the case produced some seven separate opinions, many of which—even though they agree as to the bottom line—get there by very different paths. This Article suggests that Rahimi, perhaps more than any other recent decision by the Court, underscores the crucial role that levels of generality in constitutional interpretation play, while illustrating the problems with …

“One Step Too Many”: Deference In Bruen, Loper Bright, And Rahimi, Haley Proctor

SMU Law Review

This Article examines the Supreme Court’s rejection of deferential twostep tests in New York State Rifle & Pistol Ass’n v. Bruen and Loper Bright Enterprises v. Raimondo. Prior to these decisions, Second Amendment and administrative law doctrines limited courts’ interpretive role at Step One in order to create space for regulatory judgments to which courts would defer at Step Two. Bruen and Loper Bright rejected this approach, reclaiming courts’ authority to ascertain legal norms and (less emphatically) to apply them to concrete disputes without deferring to regulators.

Although it was decided the same term as Loper Bright, many …

The Role And Impact Of Forensic Evidence In The Prosecution Of Homicide Cases In The U.S., Afrah Dakhilallah A. Altubait

Theses and Dissertations

The role of forensic evidence in the criminal justice process is an important topic that is significant from both theoretical and practical perspectives. The present study is dedicated to a critical analysis of the role of this evidence in the U.S. criminal justice process with a focus on its significance in homicide cases. Specifically, this dissertation examines the implications of using DNA and fingerprint evidence for convictions in U.S. homicide cases by analyzing the role of DNA and fingerprint evidence in the prosecution of “hot” and “cold” homicide cases, discussing the main ways in which forensic evidence assists with prosecuting …

The Effectiveness Of The Hague Convention In Addressing International Child Abduction, Areej A. Dakelallah Althubiti

Theses and Dissertations

Parental child abduction is a growing concern fueled by immigration, cross-cultural marriages, evolving family dynamics, and gaps in the implementation and enforcement of developed international frameworks. This study examines the effectiveness of and challenges to the enforcement of the Hague Convention on the Civil Aspects of International Child Abduction (HCCA), which was developed to address this problem. Specifically, the goal of this research is to assess the effect the HCCA has had on parental kidnapping, analyze its effectiveness in resolving international custody disputes, and identify the legal and practical obstacles that inhibit implementation. While the prevalence of parental kidnapping continues …

Front Matter

SMU Science and Technology Law Review

No abstract provided.

Advancing The Characterization Of Geophysical Signals Through Array Processing And Artificial Intelligence, Miro Ronac Giannone

Earth Sciences Theses and Dissertations

In geophysics, seismic and infrasound observations are routinely employed to constrain the nature and origin of events. Seismoacoustics, as a discipline, is built upon the simultaneous detection and integrated analysis of these data types. This joint approach is critical not only for advancing scientific understanding but also for supporting global monitoring efforts in hazard mitigation and nuclear explosion treaty verification. The data analyzed in this dissertation were recorded by array deployments, which consist of multiple sensors arranged in predetermined configurations to enhance signal detection, resolve directionality, and quantify waveform coherence. Leveraging these array recordings, I introduce novel approaches which combine …

Front Matter

SMU Science and Technology Law Review

No abstract provided.

Debugging The Trademark Laws Part Ii: Criminal Penalties For Trafficking In Counterfeit Microelectronics, Patricia E. Campbell

SMU Science and Technology Law Review

Counterfeit microelectronics have been a persistent problem in government and industry supply chains for many years. Counterfeit electronic parts (e.g., integrated circuits, transistors, capacitors) pose serious risks to human health and safety, harm the economy, and jeopardize national security. Trafficking in counterfeit goods and services was first criminalized in 1984, and Congress has acted on several occasions to increase the corresponding penalties. Nevertheless, the trade in counterfeit microelectronics continues to evolve to meet market demands, and relatively few criminal cases have been brought for trafficking in counterfeit microelectronics. While several factors may contribute to this apparent lack of enforcement, the …

The Artificial Intelligence Trolley Problem: Governance In The Post-Chevron World, James M. Cooper, Kashyap Kompella

SMU Science and Technology Law Review

This Essay addresses a growing Constitutional challenge in public governance: the increasing delegation of consequential decisions to algorithmic systems that encode value trade-offs between liberty and security, equity and efficiency, and expression and control, without visibility, legal justification, or institutional oversight. We view this hidden normative choice an example of the “Artificial Intelligence (AI) Trolley Problem.” Like the classic moral dilemma, it involves unavoidable sacrifices among competing goods. Unlike its philosophical counterpart, however, algorithmic trade-offs occur silently. They are embedded in data proxies, optimization logic, and model design, and insulated from scrutiny by claims of technical neutrality. This Essay argues …

Systemic Risk And The Social Contract, Kevin Frazier

SMU Science and Technology Law Review

The stability of the constitutional order turns, in part, on a stable economy and reliable advances in technology. Political order cannot withstand economic collapse or a massive technological failure. Such crises chip away at the collective will to adhere to the social contract because they indicate the government may not have the capacity to uphold its end of the bargain—protecting individual liberty from broad threats. “Unprecedented” economic downturns, however, have a precedent of emerging from the very deliberate decision of some actors to pursue extremely risky behavior in their self-interest at the expense of the public. Societal disruption from over-dependence …

Robot Regulators, Brian L. Frye

SMU Science and Technology Law Review

No abstract provided.

Willful Ignorance Or Embracing Ai To Find Prior Art? Uspto Misses The Mark, Henry H. Perritt Jr.

SMU Science and Technology Law Review

Artificial intelligence (AI) is frequently in the news. Policymakers and business executives must decide whether it is a revolutionary phenomenon, likely to overturn established enterprises and practices, or if it is a mere modest advancement in decades-old natural language capability over-advertised by Silicon Valley seeking the “next big thing” and hyped by reporters eager for the next byline. The patent office and the patent bar are not immune from the turmoil. The USPTO has issued several policies and inquiries related to the impact of AI on various aspects of patent prosecution. Most recent is a Request for Comments on the …

Enhancing Law Review Impact, Jeffrey A. Parness

SMU Law Review Forum

This Article advocates law review reforms that would enhance the impact of the ideas within various journals’ published works. Opportunities, yet not often seized, chiefly arise from the new technologically based mechanisms for delivering information. Impact enhancement can be achieved with major, yet low effort, reforms to the solicitation, editing, and distribution stages of journal publication.

Data Privacy In K-12 Education: Protecting Students In The 21st Century, Kate Hughes

SMU Science and Technology Law Review

Connectivity has come to define a new generation, with kids today comprising a large sector of the online community. With most of their days spent at school, it is no surprise that the 21st-century classroom has become a playground in the digital sense, with districts growing increasingly reliant on “EdTech” platforms that promise high-impact solutions to an industry entrusted with laying the foundations of the next generation. As the “big data” movement continues to progress, the education sector will continue to reinvent itself alongside the chance to discover new efficiencies and create new opportunities for timely feedback, individualized instruction, and …

Prepare For Landing: The Dot’S Authority To Regulate Unfair And Deceptive Practices Amidst The Supreme Court’S Elimination Of Chevron Deference, Ali Garman

Journal of Air Law and Commerce

On June 28, 2024, the Supreme Court overturned Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. with their decision in Loper Bright v. Raimondo—holding that judges are not obligated to defer to agency interpretations of the statutes they administer. One month after this decision, the Fifth Circuit Court of Appeals held that the Department of Transportation does not have authority to issue a rule regulating how airlines communicate certain fees to customers during the booking process. This decision contradicts the Seventh Circuit Court of Appeals’ earlier decision to uphold similar DOT regulations attempting to prohibit unfair and deceptive …

Let’S Jettison Some Executive Perks: Exploring The Sec And Irs Approaches To Personal Use Of Corporate Aircraft, Christine Lane

Journal of Air Law and Commerce

In 2023, 46% of the S&P 500 companies provided personal use of corporate aircraft to their chief executive officers, and 31% provided this perk to other named executive officers. This type of executive compensation has notoriously garnered much attention from the media, given the large amount of investor money spent on personal travel and the environmental impacts of flying private. In addition, the line between personal travel and business travel is often blurred, and the media has tracked flight paths of corporate aircraft to speculate that some flights may be incorrectly categorized as business trips when the jets land and …

Air Strikes In Myanmar - An Analysis Under International Law, Jacob Davis

Journal of Air Law and Commerce

Since the Russian invasion of Ukraine in 2022, and the reignited Israel-Palestine conflict in 2023, international law regulating the use of air power has been put to the test. The use of air strikes in civilian areas has put this shortcoming at the forefront of conversation about the use of force, and what constitutes a war crime in modern conflict.

This conversation has centered around the two aforementioned conflicts but has left other international disputes out of the discussion. In particular the civil war in Myanmar, a bloody conflict which follows decades of ethnic violence, political stratification, and a successful …

Transportation Security Administration Use Of Facial Recognition Technology: Turbulence Surrounding Traveler Rights, Mckenly Redmon

SMU Science and Technology Law Review

Facial recognition technology has been employed by law enforcement agencies and private companies for decades. This technology promises safer and more efficient processes to identify individuals in the name of safety. However, not everyone approves of their biometric data being collected. This Article provides an overview of the current use of facial recognition technology by the Transportation Security Administration (TSA) in airport security checkpoints. It begins by explaining the underlying technology behind facial recognition and explores the safety and security concerns behind it. Building on this foundation, this Article then evaluates how the TSA’s use of facial recognition influences science …

Aviation Cybersecurity And Third-Party Software Service Providers: Do Companies Like Crowdstrike Get A Free Pass To Create Cyber Vulnerabilities?, Claire Konerza

Journal of Air Law and Commerce

Commercial aviation has steadily become the busiest and most efficient means of travel across the world. In order to keep up with the increasing demands of its customers, the industry has undergone numerous digital and technological transformations in recent years. Collision avoidance systems have allowed for more planes in the skies, online ticket reservations have made booking a flight as simple as a few clicks, and in-flight wi-fi allows passengers to engage in both work and leisure at 30,000 feet. Overall, these innovations have increased safety, capacity, and convenience for both airlines and their customers. However, these transformations have also …

Front Matter

SMU Law Review

No abstract provided.

Symposium Preface, Madeleine Nelson

SMU Law Review

No abstract provided.

A Critique Of Findings On Gun Ownership, Use, And Imagined Use From The 2021 National Firearms Survey: Response To William English, Deborah Azrael, Joseph Blocher, Philip J. Cook, David Hemenway, Matthew Miller

SMU Law Review

For a paper that has not yet been through peer review or even been formally published, William English’s “2021 National Firearms Survey” has been remarkably prominent in gun rights advocacy and scholarship. As of December 2024, it has been cited in roughly sixty-five briefs, invoked at oral argument in the Supreme Court and multiple courts of appeals, and regularly cited in public writings and published academic work.

This response is offered in the spirit of a peer review. Our focus is on methodological issues, questionable statistical results, and problematic conclusions. Because of serious methodological issues, English’s draft fails to provide …

History's Identity Crisis, Allison Orr Larsen

SMU Law Review

Lower court judges across the country are struggling to manage the Supreme Court’s new “history and tradition” test that applies to Second Amendment challenges. This Article articulates one fundamental reason for the struggle: nobody is quite sure what a judge is actually doing when she evaluates claims about what happened in the past. Is it traditional legal reasoning—weighing evidence and looking for patterns? Is it fact-finding of the sort we think expert historians should testify about—conveying to a trial judge the best evidence we have about the purpose of colonial gun laws? Or is it a different sort of fact-finding—generalized …

The Mutability Of Dangerousness: Domestic Violence And Second Amendment Restoration After Rahimi, F. Lee Francis

SMU Law Review

This Article considers whether the Constitution permits the permanent disarmament of individuals once deemed dangerous—particularly in cases involving domestic violence. In United States v. Rahimi, the Supreme Court reaffirmed that the Second Amendment protects the right of the people to keep and bear arms, subject only to regulation consistent with historical tradition. That tradition, as examined under New York State Rifle & Pistol Association v. Bruen, does not support lifetime bans absent an ongoing threat.

The Article argues that dangerousness is not immutable. Founding-era laws recognized disarmament as a temporary, conditional measure tied to present conduct, not a …

Judge–Scholar Collaboration And The Second Amendment, Andrew Willinger, Eric Ruben

SMU Law Review

Legal scholarship is overly abstract and theoretical, making it unhelpful to judges and lawyers. That, at least, is the classic critique from the bench. When it comes to the Second Amendment, however, a different pattern has emerged: judges consistently cite law review articles and look to the academy for guidance. Most recently, in United States v. Rahimi, some Justices went further, implicitly inviting more scholarly work to help the Court answer open questions raised by its novel methodological approach to the Second Amendment. This Article explores this aberrant trend.

We raise several explanations for the distinctive scholarly role in …

Potential Competitors’ Antitrust Standing Against Preemptive Acquisitions, Frank Lior, C. Paul Rogers Iii

SMU Law Review

This Article revolves around potential competitors’ “antitrust standing” rights in private merger litigation, especially against preemptive acquisitions. It builds upon various cases in which courts had explicitly recognized that a potential competitor has standing to challenge an allegedly anticompetitive merger that foreclosed it from entering the market dominated by an incumbent firm. Such mergers can be categorized as “strategic preemptive acquisitions.” Specifically, the courts held in these particular cases that the potential competitor’s “antitrust injury,” that is—exclusion from the relevant market—stems from the incumbent’s intentional and strategic acquisition of a company or set of assets that were required for the …

Crypto Chaos In The Courtroom: Navigating Bankruptcy’S Digital Gold Rush, Grayson Timmins

SMU Law Review

The explosion of cryptocurrency, along with other digital assets, has led to many new transactions and investment opportunities for those interested in broadening their portfolios. While cryptocurrency is new, the failure of a cryptocurrency exchange requires the application of the same bankruptcy procedures in the same way as parties using traditional U.S. currency. In bankruptcy, these intangible assets are designated property of the estate and are deemed subject to the court’s jurisdiction. At this point, an issue arises: Once classified as property of the estate, how should crypto be classified?

The lack of regulatory infrastructure regarding this classification further complicates …

Privatizing Child Welfare: Texas’S Gamble With Community-Based Care, Grace Byers

SMU Law Review

There are arguably few populations with greater vulnerability in the United States than children in active child welfare cases. Beyond the abuse or neglect that triggered a child welfare investigation, the child will endure the trauma of having their life uprooted. A child may encounter dozens of people throughout a child welfare case: investigators, police officers, caseworkers, doctors, psychologists, judges, foster parents, and many others. At this critical junction in a child’s life, the state is appointed as the child’s legal conservator to care for the child, find them a temporary home, and provide services to them and their parents …