Digital Commons Network^™

Challenges In Substantive Due Process Litigation, Nancy Leong

SMU Law Review

This Article presents the results of an empirical examination of litigation involving substantive due process claims. I have compiled a dataset consisting of every case in which a federal appellate court adjudicated a substantive due process claim during the year 2019—a total of 98 cases. This census yields important information about the context in which substantive due process rights are litigated and articulated within our civil rights enforcement scheme. As a threshold matter, I show that 92% of substantive due process cases come to the federal appellate courts as actions brought under 42 U.S.C. § 1983. This information underscores that, …

Death After Dobbs, Kathy L. Cerminara

SMU Law Review

Courts have recognized that decisions about medical care near the end of life enjoy both common law and constitutional protections since the 1970s, when patients, their families, and the medical establishment invited legal input into those intensely private discussions. In Cruzan v. Director, Missouri Department of Health, the U.S. Supreme Court famously “strongly assumed” that substantive due process protected decisions to withhold or withdraw such treatment as arising from a fundamental liberty interest. Beginning on June 24, 2022, however, the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization prompted concern over whether substantive due process protection for end-of-life …

Renewing Educational Autonomy, Johanna Kalb

SMU Law Review

American colleges and universities are facing an unprecedented wave of state legislative actions calling into question the freedom that these institutions have long enjoyed, as well as their ability to serve increasingly diverse student populations. Current constitutional protections for academic freedom under the First Amendment are proving an inadequate defense from these types of incursions. This Article argues for a reexamination and reinvigoration of a constitutional theory of educational autonomy protected by substantive due process, drawing on both the pre-colonial models that informed the creation of American colleges, as well as the earliest cases involving state efforts to control them. …

Constraining And Licensing Arbitrariness: The Stakes In Debates About Substantive-Procedural Due Process, Helen Hershkoff, Judith Resnik

SMU Law Review

“Due process,” unmodified by the words “substantive” or “procedural,” has long marked the obligation of federal and state governments to protect individuals against arbitrary and unfettered uses of state power. Constitutional guarantees of rights to remedies and access to court date back centuries and, during the twentieth century, were reread to include all persons regardless of race, gender, and class. Moreover, the need for governments to legitimate their own decisions propelled interpretations of the Due Process Clauses of the Fifth and Fourteenth Amendments in conjunction with evolving interpretations of equal protection to ensure that courts provided even-handed treatment.

Thus, on …

The U.S. Constitution Is Not A Code: Unraveling The Idea And The Meaning Of Substantive Due Process, Simona Grossi

SMU Law Review

This Article delves into the nuanced meaning of substantive due process by tracing its historical and contemporary contexts. Beginning with the exploration of pre-ratification state constitutions, the debates surrounding ratification, and early Court views on the Constitution’s nature (perceived not as a code but an enduring collection of principles), the study then addresses the role and meaning of stare decisis as positive of history and tradition, and the role of judicial decision-making in our system starting from Marbury v. Madison. The Article concludes by linking substantive due process to universally recognized fundamental rights, emphasizing that our Constitution’s true intent is …

Front Matter

SMU Law Review

No abstract provided.

The Trilogy Of Personal Jurisdiction And The Importance Of Ford, Jonathan M. Hoffman, Michaela Cloutier, Jason Proctor

SMU Law Review

Litigants and judges alike have struggled to understand and resolve the parameters of personal jurisdiction, particularly in product liability cases. This results in significant costs and time which is likely to be of little benefit to anyone.

Much of this confusion arises from two problems: (1) most of the early Supreme Court decisions on personal jurisdiction arose from contractual disputes; and (2) when the economy expanded after World War II, and new automobiles, commercial aircraft, appliances, and other complex products appeared, the Court’s attempts to resolve personal jurisdiction issues were unsuccessful. For over three decades, the Supreme Court failed to …

Protecting “No Surprises” Journalism: Why Courts Should Preserve The Actual Malice Privilege For News Media That Include The Subject’S Response To Allegations Of Misconduct, Zachary R. Cormier

SMU Law Review

The recent onset of the “fake news” era has brought with it a wave of public discussion about the importance of ethical journalism. The sheer volume of misinformation from non-traditional online sources has had the corollary effect of also reducing the trust of many in traditional news sources. This is especially the case when the report involves alleged misconduct or scandal, which stands to potentially benefit opponents of the subject person or organization. Traditional news sources have fought vigorously to both differentiate “fake news” and reinstate public trust in sources committed to ethical journalism. But what exactly is “ethical journalism”? …

Data Milkshakes: The Rule Of Capture And The Constitutionality Of Data Mining, Bryce Pilawski

SMU Law Review

This Comment examines, explains, and attempts to reconcile the federal judiciary’s implicit reasoning behind the lax protection of metadata in years past, specifically through the lens of the Rule of Capture. With the goal of explaining the historical hesitance courts have shown when protecting metadata, this Comment illustrates why this hesitance is actually motivated by reasoned restraint rather than a mere refusal to protect. In fact, through the lens of the Rule of Capture, metadata tracks the characteristics of resources that have traditionally counseled for the Rule’s application, specifically that the resource is: (1) emerging in value and (2) difficult …

The Ultimate Metaverse Match: An Analysis Of First Amendment Protections And Unauthorized Trademark Use In Non-Fungible Tokens, Alena Khan

SMU Law Review

The First Amendment has long provided protections for artists’ creative expression and is a fundamental right for all United States citizens. However, with the rise of a predominantly digital world, those protections begin to blur with the introduction of non-fungible tokens (NFTs). Artistic creation often stems from an inspired source, and sometimes, that inspiration may come from registered intellectual property, specifically trademarks. Trademarks are everywhere we look, so it is not unusual for artists to be inspired by the logos, images, colors, figures, or symbols that are featured on billboards, magazine covers, or everyday items. When these trademarks are used …

Revoking Trademark Consent: Can It Be Done?, Keegan Pearl

SMU Science and Technology Law Review

In 2022, Dallas Mavericks guard, Luka Doncic, was engaged in a quiet, albeit significant legal dispute with his mother. The dispute centered around Doncic’s attempt to register a new trademark to use for various goods and services. Doncic, however, previously gave his mother consent to use his name and likeness for a similar trademark, which was officially registered in 2018. Due to the likelihood of confusion, and his mother’s unwillingness to cede her rights in the outdated mark, Doncic was prevented from registering his new mark. Thus, Doncic filed a cancellation petition with the USPTO, which argued he should be …

Technology Law, Rights & Ethics - One Choice, One Future, G.A. Walker

The International Lawyer

No abstract provided.

Foreword: A Tipping Point For Antitrust Law, C. Paul Rogers Iii

SMU Science and Technology Law Review

No abstract provided.

Generative Ai Art: Copyright Infringement And Fair Use, Michael D. Murray

SMU Science and Technology Law Review

The discussion of AI copyright infringement or fair use often skips over all the required steps of the infringement analysis in order to focus on the most intriguing question, “Could a visual generative AI generate a work that potentially infringes a preexisting copyrighted work?” and then the discussion skips further ahead to, “Would the AI have a fair use defense, most likely under the transformative test?” These are relevant questions, but without considering the actual steps of the copyright infringement analysis, the discussion is misleading or even irrelevant. This neglecting of topics and stages of the infringement analysis fails to …

Biotechnology Patent Law Top Ten Of 2022: Inducement, Clear Error, And Interferences Galore, Kevin E. Noonan, Andrew W. Torrance

SMU Science and Technology Law Review

Five-year anniversaries are symbolized by a product of natural biotechnology: wood. This article marks the wood anniversary of the “Top Ten Biotechnology Patent Cases” series that began in 2018. Imagining the world in 2018 is challenging, in part because it was, indeed, a different world. There had not been a major pandemic in one hundred years. Inflation was low. The economy hummed along. No individual war appeared to threaten more than regional stability. O tempora, o mores! The year 2022 was quite different. SARS-CoV-2 continued to stalk the land, having had a monumentally mortiferous effect for several years. High inflation …

Who Framed Roger Rabbit? Probably The Secret Codes, Jian Micah De Jesus

SMU Law Review Forum

Roger Rabbit was falsely accused of murdering Marvin Acme, the owner of Toontown, after photos revealed Acme’s alleged affair with Roger’s wife. A few snapshots, while seemingly harmless, brought a 104-minute journey into uncovering the truth and scandal behind the murder and proving Roger’s innocence. And while the camera that took the photos was not necessarily a criminal justice technology that framed Roger Rabbit, there are real-life cases where a DNA software or a breathalyzer has negatively affected many defendants. Despite the proven usefulness of these technologies, it is not a perfect method in accusing and convicting defendants. The criminal …

Front Matter

SMU Annual Texas Survey

No abstract provided.

Bankruptcy & Commercial Law, Sally M. Henry

SMU Annual Texas Survey

This Article analyzes and discusses cases—arising from the U.S. Court of Appeals for the Fifth Circuit, the Bankruptcy Courts in Texas, the Texas Supreme Court, and the Texas Courts of Appeals—that resolved some fascinating and important issues in the areas of bankruptcy and commercial law during this Survey period.

Criminal Procedure: Confessions, Searches, Seizures & Suppression Issues, Barbara Parker Hervey, Carson Guy

SMU Annual Texas Survey

This Article analyzes and discusses the most impactful Texas Court of Criminal Appeals cases involving the law of criminal procedure decided during this Survey period. Broadly, this Article addresses two of criminal procedure’s main subject areas—confessions and searches and seizures.

Franchise Law, Deborah S. Coldwell, Kristina Pierre-Louis, Wes Dutton, Sam Mallick, Alexander Clark, Wilson Miller, Joe Pinto

SMU Annual Texas Survey

The 2022 Annual Texas Survey on Franchise Law presents an assortment of novel and familiar legal issues in Texas state and federal courts. This year’s Survey period contains decisions favorable to franchisors, franchisees, and third parties associated with franchised businesses on disputes involving intellectual property rights, enforceability of forum selection clauses, the essential elements of common law and statutory claims, and remedies available to franchise parties involved in litigation, among other issues. As in prior years, the Survey showcases developments in franchise law that serve as helpful reminders to practitioners advising parties involved in any stage of a franchise relationship.

Insurance Law, J. Price Collins, Janet Tolbert, Ashley Gilmore

SMU Annual Texas Survey

This Article describes and analyzes major developments in insurance law that occurred in Texas between December 1 and November 30 of 2022.

Autonomous Archaeological Authority: The Future Of Drone Use And Privacy Laws In Cultural Heritage Preservation, Kara Anderson

Journal of Air Law and Commerce

Since ancient times, humanity has placed high value on natural and cultural phenomena, with Philo of Byzantium recording the first list of the “Seven Wonders of the Ancient World” as early as 225 B.C.E. Similarly, modern world leaders continue to recognize the value of these and more sites through preserving them as United Nations Educational, Scientific, and Cultural Organization (UNESCO) World Heritage sites. With the advancement of drone technology, researchers now employ drones to aid preservation efforts since drones can enter dangerous and humanly-inaccessible spaces, provide detailed images of sites the human eye cannot see, and assist governments in identifying …

Navigating Through Cloudy Skies: The Montreal Convention & Article 17 “Accidents” Post-Moore, Elan Wilson

Journal of Air Law and Commerce

The Montreal Convention is a multilateral treaty that comprehensively regulates international air carriers. Specifically, Article 17 of the treaty allows passengers to recover against air carriers for injuries or deaths on international flights, so long as certain requirements are met. In Air France v. Saks, the Supreme Court held that “accident”—a controlling term in Article 17—describes an event that is external to the passenger and “unexpected or unusual.” Last year, in Moore v. British Airways PLC, the First Circuit purported to identify a split over what this language means. According to Moore, there are courts who (correctly) …

The Drone Star State: How A Challenge To Texas Drone Law Became The Latest Battleground Between The First Amendment And The Right To Privacy, Edward W. "Ted" Tooley

Journal of Air Law and Commerce

Texas is unconstitutionally infringing upon the First Amendment in the form of its overly restrictive drone regulations. While the state originally set out to create a robust privacy law providing maximum protection to its citizens, its overbroad statute instead produced the latest constitutional conflict between two of our nation’s oldest and most sacred rights. For almost a decade, Texas drone law stood unchallenged, garnering the state a reputation as arguably the least friendly jurisdiction for drone journalism. These regulations, however, have never been more vulnerable. There is a constitutional challenge unfolding in federal district court that, if successful, will redefine …

Delayed Flights And Delayed Rights: It Is Time For The United States To Follow The European Union’S Lead And Enact More Regulations To Protect Airline Passengers, Hannah Foote

Journal of Air Law and Commerce

Since Congress passed the Airline Deregulation Act of 1978, travelers have benefitted from airline deregulation through discounted prices and greater access to air travel, but these benefits have largely been offset by the reality that many airline passengers are unsatisfied with the airline industry’s customer service, or lack thereof. This Comment argues that the United States should follow the European Union’s lead and, in accordance with Regulation EC 261, require airlines to compensate passengers when their flights are delayed or canceled. The concentrated aviation industry has created a market that does not adequately protect airline passengers, and the courts have …

The Department Of Transportation’S Failures In Regulating Emotional Support Animals, Jillian Doughty

Journal of Air Law and Commerce

In the past decade, the number of emotional support animals being used to treat a wide array of mental and emotional disorders has multiplied exponentially. This increase has been met with mixed reactions in the context of air travel. While some passengers are thrilled to sit next to a dog on their flight, others are frustrated due to the belief passengers with emotional support animals are exploiting a loophole to travel with their pet for free. Regardless of the differing perceptions, emotional support animals are a valid, affordable way to treat mental health illnesses without incurring negative side effects associated …

Houston Security Camera Ordinance: Reasonable Safety Measure Or Orwellian Surveillance, Clint Nuckolls

SMU Science and Technology Law Review

A new ordinance went into effect in Houston, Texas in July 2022, which looks to leverage technology and require certain businesses to install surveillance cameras at their own cost and turn footage over to the police on demand without a warrant. The ordinance specifically requires bars, nightclubs, convenience stores, sexually oriented businesses, and game rooms to install surveillance cameras, with accompanying lighting at all places where customers are permitted, keep the cameras running at all times, even when the business is closed, and store the footage for at least thirty days, all at the expense of the business owners. The …

Front Matter

SMU Law Review

No abstract provided.

The Ripple Effects Of Dobbs On Health Care Beyond Wanted Abortion, Maya Manian

SMU Law Review

The Supreme Court’s momentous decision in Dobbs v. Jackson Women’s Health Organization to overturn fifty years of precedent on the constitutional right to abortion represents a sea of change, not only in constitutional law, but also in the public health landscape. Although state laws on abortion are still evolving after Dobbs, the decision almost immediately wreaked havoc on the delivery of medical care for both patients seeking abortion care and those not actively seeking to terminate a pregnancy. This Article also argues that focusing the public’s attention on the deleterious consequences of abortion bans for health care beyond wanted abortion …

Pregnancy Risk And Coerced Interventions After Dobbs, Elizabeth Kukura

SMU Law Review

Only nine months after the Supreme Court eliminated the federal constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization, fourteen states had banned abortion entirely, and experts estimate the ultimate number of states imposing complete or near-complete restrictions on abortion care will likely rise to twenty-four. Millions of people with the capacity for pregnancy now (or will soon) live in places where getting pregnant means there is no choice other than to carry the pregnancy to term and give birth. One underappreciated, though critically important, impact of Dobbs is the extent to which newly enacted abortion restrictions will …