Digital Commons Network^™

Race Preferences, Diversity, And Students For Fair Admissions: A New Day, A New Clarity, Maimon Schwarzschild, Gail Heriot

SMU Law Review

This Article traces the legal path to the Supreme Court’s decision in Students for Fair Admissions v. Harvard and the University of North Carolina (2023), from the famous Bakke case in 1978 to the Grutter decision twenty-five years later. It reviews the shifting fortunes of the “diversity” rationale for racial preferences in higher education and assesses the widening—rather than narrowing—gulf between the Court’s majority and the dissenting Justices on the issue of racial preferences.

After half a century of closely contested Supreme Court decisions, some of them seeming to point in opposing directions, others relying on fragmented pluralities among the …

Reversing Grutter, Lackland H. Bloom Jr.

SMU Law Review

In 2023, the Supreme Court modified its 2003 decision in Grutter v. Bollinger. That decision had allowed colleges, graduate schools, and professional schools to explicitly consider race in the admissions process. In two cases decided together, Students for Fair Admissions v. Harvard University and University of North Carolina, a 6–3 majority of the Court held that colleges could not employ a general racial preference but could take account of how race affected the specific applicant. The decision was based on the Court’s understanding of the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act …

Front Matter

SMU Law Review

No abstract provided.

In Honor Of Professor Lackland Bloom, Marc I. Steinberg

SMU Law Review

No abstract provided.

A Role Model Among Law Professors, Randy Beck

SMU Law Review

No abstract provided.

A Tribute To Lackland H. Bloom, Jr., Jeffrey D. Kahn

SMU Law Review

No abstract provided.

Taxing Composite Transactions, Emily Cauble

SMU Law Review

In a variety of contexts, taxpayers engage in composite transactions—essentially two transactions in one. For instance, when an individual sells property for less than its fair market value to a friend or relative, the transaction involves a sale and a gift. As another example, from time to time, retailers run promotions offering to rebate the price of merchandise if a team wins a sporting event. A buyer of the merchandise, effectively, makes a purchase and also places a bet on the sporting event’s outcome.

Tax law’s treatment of composite transactions is not uniform. In some contexts tax law fully bifurcates …

The Confrontation Clause & State Action, John L. Watts

SMU Law Review

The Sixth Amendment’s Confrontation Clause works in conjunction with the right to counsel and trial by jury to protect the people against the government’s abuse of its prosecutorial monopoly. However, the history of the Court’s Confrontation Clause jurisprudence has not always focused on the Sixth Amendment’s goal of limiting government power and was treated as virtually synonymous with the hearsay rules. In Crawford v. Washington, the Court restored the Confrontation Clause to constitutional significance by correctly identifying it as a procedural guaranty that empowers the jury to evaluate the reliability of government witnesses through live testimony subject to cross-examination. Unfortunately, …

Press Freedoms Under Pressure: Clinical Perspectives On The State Of Press Freedoms In Texas In 2024, Peter B. Stefensen, Thomas S. Leatherbury

SMU Law Review

Amid existential challenges to the press as an institution, public accountability journalists in Texas are navigating their own set of difficulties. For those who report on state and local entities, journalists are encountering increasingly constrained avenues for obtaining public information, a greater tendency for government bodies to prioritize image control over transparency, a higher likelihood of retaliation from public officials for performing important accountability work, and a judiciary that seems to respect the press less and less. By surveying journalists, and members of press and legal organizations who support accountability journalism, we use their accounts to evaluate these trends, to …

Raising The Bar In Child Welfare Law, Diane M. Sumoski

SMU Law Review

This article explores the unique opportunities arising from child welfare law practice in clinical legal education. While training law students for lawyering in all practice areas, the clinic can also inspire experienced child welfare practitioners to raise the level of their practice. The article provides an overview of the child welfare practice in Texas, the various roles of lawyers in the system, the special training required for these lawyers, and how the lawyers are employed and paid. The article proposes that the clear impact of child welfare legal practice on clients, combined with its interdisciplinary complexity, creates an ideal combination …

Front Matter

SMU Law Review

No abstract provided.

Accommodating Religion After Groff, Charles A. Sullivan

SMU Law Review

At the end of last term, Groff v. DeJoy “clarified” an earlier Supreme Court decision that had largely nullified Title VII’s duty that employers reasonably accommodate their workers’ religious practices by virtue of a very broad interpretation of a statutory exception. That exception permitted denying accommodation when the result would be “undue hardship,” and the Court in the earlier case had described that defense as triggered whenever the accommodation would impose “more than de minimis” costs. This atextual reading had the effect of largely erasing the duty, and over time became increasingly out of sync with the Court’s religious liberties …

Algorithmic Adjudication And Constitutional Ai—The Promise Of A Better Ai Decision Making Future?, April G. Dawson

SMU Science and Technology Law Review

Algorithmic governance is when algorithms, often in the form of AI, make decisions, predict outcomes, and manage resources in various aspects of governance. This approach can be applied in areas like public administration, legal systems, policy-making, and urban planning. Algorithmic adjudication involves using AI to assist in or decide legal disputes. This often includes the analysis of legal documents, case precedents, and relevant laws to provide recommendations or even final decisions. The AI models typically used in these emerging decision-making systems use traditionally trained AI systems on large data sets so the system can render a decision or prediction based …

Liability Rules For Automated Vehicles: Definitions And Details, William H. Widen, Philip Koopman

SMU Science and Technology Law Review

This paper explains how the law ought to assign liability for automated vehicle accidents by providing an example of a proposed statute. We advocate for the creation of the legal fiction of a “Computer Driver,” which can have negligence liability, anytime a court or jury determines that the Computer Driver’s behavior failed to imitate or exceed the level of care we would expect of an attentive and unimpaired Human Driver in similar circumstances. We then use this concept to explain how to determine contributory negligence and comparative fault when control of a vehicle is transferred from a Computer Driver to …

Generative Ai In The Attorney-Client Relationship: An Exercise In Critical Revision And Client Management, Michael L. Smith

SMU Science and Technology Law Review

Discussions of generative AI in legal practice and education often assert that this technology will lead to a sea change in legal writing, research, and revision. While some of the more breathless proclamations deserve skepticism, there’s little doubt that this technology may generate new forms of headaches for those in the legal field—particularly once it’s in the hands of clients or opposing counsel who wish to use this technology to save the time, money, and effort required for complex legal tasks.

This essay proposes an exercise template for law students that illustrates how generative AI technology may be misused or …

Neither Here Nor There: Redefining “Presence” For A Virtual Criminal Justice System, Brandon M. Draper

SMU Science and Technology Law Review

The coronavirus (“COVID-19”) pandemic dramatically altered how the criminal justice system operated by adding virtual options to traditionally in-person proceedings. The impact of the criminal justice system’s failure to include virtual jury trials among these options was shocking, but not surprising: jury trial rates across the country dropped close to zero percent and several in-custody defendants died from COVID-19 before a jury could determine their guilt or innocence. After the pandemic, criminal courts across the country made many of these virtual options permanent, but only for non-evidentiary proceedings and other non-jury trial settings. The failure to include criminal jury trials …

Unconscionability And Poverty, Mark G. Kelman

SMU Law Review Forum

Matthew Desmond made the claim in Evicted, his powerful work on housing insecurity, that those concerned with alleviating poverty should focus not merely on ensuring that poor people have higher disposable incomes, but on countering the exploitative price gouging that depresses the value of whatever income they have. This suggests the possibility that it might be a worthwhile anti-poverty strategy for courts to use the unconscionability doctrine to regulate exploitative contracts.

Three main issues follow from considering this possibility: (1) Do the poor actually pay more for goods of the same quality? (2) If they indeed pay more, do …

The War[Hol] Between Artistic Creativity And Commercial Use Within The Fair Use Defense, Morgan Houghtlin

SMU Law Review

In May 2023, the Supreme Court decided Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, articulating the standard for the “fair use” defense under a copyright infringement claim. The Court’s decision significantly narrowed the first factor of the fair use analysis, characterizing “purpose and use” in terms of the commercial nature of a secondary work with little consideration of the art’s creative value. This opinion deviates from the broader conception of “fair use” articulated in Campbell v. Acuff-Rose Music, Inc. (1994) and introduces various implications for modern-day artists and content creators. Specifically, Justice Sotomayor’s majority opinion and …

Navigating Passenger Compensation: Implications For Airlines And Consumers, Noor Ain

Journal of Air Law and Commerce

Amid winter’s icy grip, as frigid December storms swept across the nation, a distressing scenario unfolded for countless airline passengers. In the realm of air travel, a ticket represents more than just a mere document. It embodies a contract, a covenant between passengers and airline companies. It symbolizes an agreement made by airlines—a commitment to delivering timely and uninterrupted travel experiences. Following the pandemic, which brought about technological failures, system outages, and staffing shortages, many travelers found themselves stranded due to prolonged flight delays or cancellations. Currently, the absence of viable options for passengers to seek recompense in the form …

The Fall Of Z-Library: The “Burning Of The Library Of Alexandria” Or Protection For Authors Against Ai Companies, Lisa Silveira

SMU Science and Technology Law Review

The development and advancement of artificial intelligence (“AI”) is changing the way we use technology while creating an ongoing battle between media and technology companies. With AI companies gathering data from the internet to train programs like ChatGPT, authors have growing concerns about unpermitted use of their work when pirated copies of their books exist illegally online through shadow libraries. This article examines the popular shadow library known as Z-Library and the views of its proponents and opponents. In addition, this article will discuss the training process AI companies use and the data sets containing content from shadow libraries. While …

It Comes With Baggage: The Heavy Weight Implications Of Weighing Airline Passengers, Brooke Sutter

Journal of Air Law and Commerce

The aviation industry is one of the most regulated industries that exists in modern society. Before an airplane can take a passenger from one destination to another, diligent and thorough checks are performed on the aircraft, the runway, the pilots, the crewmembers, the luggage, the route, and the numerous other points of potential risk. Due in part to this diligence, air travel is also one of the safest forms of travel. However, one point of potential risk that is underregulated and overlooked in the safety calculation is the weight of the passengers. The act of weighing passengers is not just …

Curiousity Killed The (Fat) Cat: Promoting Safety Over Profit In The Space Tourism Industry, Ryan Puente

Journal of Air Law and Commerce

Humans have never been more capable than they are now of dominating the extreme environments of the universe. This newfound capacity to enter the depths of the oceans and exit the familiar grasp of the atmosphere has led to an unprecedented ability to explore the corners of the universe. This ability brings excitement and opportunity but also presents many potentially fatal risks associated with the unknowns of the extreme environments being explored. The space tourism industry, like other extreme tourism industries, faces the challenge of navigating the forefront of human exploration in a sustainable way that preserves the lives and …

Proposed Methodologies To Cure The No-Fly List’S Current Violations Of The Due Process Clause For Affected U.S. Citizens, Sierra Stone

Journal of Air Law and Commerce

Often, the No-Fly List is a helpful tool that increases the safety of commercial aviation for U.S. citizens flying domestically and internationally. The TSA and various intergovernmental agencies utilize a nomination process and those who meet the requisite criteria are added to a database and can be entered into the No-Fly List. Once being placed on the “List,” an individual is no longer allowed to board a flight flying anywhere within or over U.S. airspace. However, for a small number of people, this deprivation of the ability to fly came unjustifiably and without realistic opportunities to be removed from the …

If Held Holds: Held V. Montana And The Future Of Constitutional Environmental Litigation, Leonora Owsley

SMU Science and Technology Law Review

The State of Montana is one of three states whose constitutions presently contain a “green amendment[.]” These amendments, enshrined in their respective Bills of Rights, protect a citizen’s fundamental right to a clean and healthy environment, ideally ensuring that the state’s government cannot infringe upon that right. However, following the green amendment’s adoption in 1972, Montana’s law still prioritized its extractive energy and hard rock mining industries over its citizens’ environmental rights. Now, that landscape is beginning to change. In 2011, Montana adopted an amended State Energy Policy Act, which expressly forbade its agencies from considering the effects of climate …

Front Matter

SMU Law Review

No abstract provided.

Preface: An Homage, Elan Wilson

SMU Law Review

No abstract provided.

The Post-Racial Deception Of The Roberts Court, Cedric M. Powell

SMU Law Review

Students for Fair Admissions v. Harvard/UNC (SFFA) is a post-racial deception unmoored from precedent and societal reality. SFFA deceives the polity and signals an all out assault on anti-discrimination law. To preserve its institutional legitimacy, the Roberts Court promotes doctrinal and conceptual distortions—post-racial deceptions of cognizable injuries advanced through reverse discrimination claims of white plaintiffs; racial proxy claims of discrimination proffered by Asian-Americans; and the fairness rationale of the Court’s circular post-racial edict that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Chief Justice Roberts’s majority opinion discards the …

Students For Fair Admissions V. Universities For Division, Exclusion, And Inequity: The Petitions, The Arguments, And The Decision, Josh Blackman

SMU Law Review

Students for Fair Admissions v. Harvard (SFFA) will be studied by law students for generations, in much the same way that Bakke and Grutter were studied before. But there is much more to SFFA than the final decisions about Harvard University and the University of North Carolina will reveal. This Article, published for a symposium by the SMU Law Review, focuses on three stages of the litigation: the petitions, the oral arguments, and the decision. Part I recounts the complex procedural history, which began in federal courts in Massachusetts and North Carolina. The Harvard case reached the Supreme Court first, …

Individual Dignity As The Foundation Of An Inclusive Society, Cory R. Liu, Anthony Pericolo

SMU Law Review

In Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, the Supreme Court considered voluminous evidence that Harvard discriminated against Asian Americans to keep the racial composition of its student body similar year after year. The Court held that Harvard engaged in unlawful discrimination, providing clarity to an area of the law that was filled with ambiguities and self-contradictions. The Court’s decision made clear that discrimination in favor of some racial groups necessarily inflicts discriminatory, race-based harms on others.

This Article explores how Fair Admissions sheds light on the failure of identity politics to create a genuinely …

Tribute To Professor Lackland H. Bloom, Jr., Jason Bloom

SMU Law Review

No abstract provided.