Digital Commons Network^™

When Time Stands Still: Eliminating Immigration “Death Sentences”, Lori A. Nessel

SMU Law Review

The nation prides itself on the notion of rebirth—the ideal that one can leave their past behind, come to the United States, and seize the opportunities available to advance and remake oneself. Yet, when it comes to immigration law, neither the passage of time nor a life full of positive equities ameliorates past wrongdoing or allows for future opportunities. In the words of the Senate Subcommittee when Congress permanently removed the statute of limitations for deportation from the Immigration and Nationality Act in 1952, “If the cause for exclusion existed at the time of entry, it is believed that such …

Front Matter

SMU Law Review

No abstract provided.

Algorithmic Destruction, Tiffany C. Li

SMU Law Review

Contemporary privacy law does not go far enough to protect our privacy interests, particularly where artificial intelligence and machine learning are concerned. While many have written on problems of algorithmic bias and data deletion, this Article introduces the novel concept of the “algorithmic shadow” and explains the new privacy remedy of “algorithmic destruction,” also known as algorithmic disgorgement or machine unlearning. The algorithmic shadow describes the persistent imprint of training data that has been fed into a machine learning model and used to refine that machine learning system. This shadow persists even if data is deleted from the initial training …

The Unexpected Consequences Of Automation In Policing, Elizabeth E. Joh

SMU Law Review

This Article has two aims. First, it explains how automated decision-making can produce unexpected results. This is a problem long understood in the field of industrial organization, but identifying its effects in policing is no easy task. The police are a notoriously difficult institution to study. They are insular, dislike outsiders, and especially dislike critical outsiders. Fortunately, we have the benefit of a decade’s worth of experimentation in police use of automated decision-making and the resulting political backlash against some of these uses. As a result, some large urban police departments have undergone external investigations to see whether tools like …

Expanding Civil Rights To Combat Digital Discrimination On The Basis Of Poverty, Michele Estrin Gilman

SMU Law Review

Low-income people suffer from digital discrimination on the basis of their socio-economic status. Automated decision-making systems, often powered by machine learning and artificial intelligence, shape the opportunities of those experiencing poverty because they serve as gatekeepers to the necessities of modern life. Yet in the existing legal regime, it is perfectly legal to discriminate against people because they are poor. Poverty is not a protected characteristic, unlike race, gender, disability, religion or certain other identities. This lack of legal protection has accelerated digital discrimination against the poor, fueled by the scope, speed, and scale of big data networks. This Article …

Front Matter

SMU Law Review

No abstract provided.

The Flubs That Bind: Stare Decisis And The Problem Of Indeliberate Doctrinal Misstatements In Appellate Opinions, Richard Luedeman

SMU Law Review

Speak to enough lawyers (especially litigators) about their experiences grappling with binding appellate case law in their jurisdictions, and a significant number of them will complain about statements in appellate case law that patently contradict prior precedent, incorrectly articulate legal standards, or otherwise mangle the doctrine in an area. The image of courts as deliberative doctrine-producing machines ignores the reality that certain statements in judicial opinions might not have been carefully, deliberately constructed. Often, the result is harmless. But in some instances, doubt about the deliberateness of dubious doctrinal statements in judicial opinions can become an unavoidable problem for litigants …

Bostock: A Clean Cut Into The Gordian Knot Of Causation, Melissa Essary

SMU Law Review

Regardless of merit, most individual employment discrimination claims die a fast death at summary judgment. Judges apply the fine mesh net created by McDonnell Douglas v. Green, and most cases are caught in its trap. This dated, obfuscatory Supreme Court case creates a complex and flawed binary approach to causation: either discrimination or an innocent reason caused an adverse employment action. For decades, all three levels of the federal judiciary have wrestled with McDonnell Douglas, creating snarls and knots in construing causation. Because of this causal confusion, the ideal of equal opportunity in employment is on life-support.

Judges and practitioners …

Psychologically Bound: Why Expert Evidence Regarding Battered Woman Syndrome Should Be Admissible, Christa Bunce

SMU Law Review

The affirmative defense of duress was created to protect a person coerced into committing a violent physical crime. Alongside duress, battered woman syndrome (BWS) is a psychological theory created to explain why women choose to kill abusive partners rather than leave them. Although BWS is a well-known and supported legal theory, historically, courts have been reluctant to allow expert evidence regarding the syndrome into testimony to help explain a battered woman’s behavior. Battered women have been so subjected to abuse and violence that their psychological perception is altered. In cases where expert evidence has been admitted, it profoundly affected jurors’ …

The Law’S Role In Ending The Suicide Crisis: Liability For Suicide Under The State-Created Danger Doctrine, Brittany White

SMU Law Review

The mounting prevalence of suicides in the United States has translated into a full-fledged, nationwide suicide crisis, impacting the lives of far too many. Even if an individual is fortunate enough never to have directly endured the tragedy of losing a loved one to suicide, they have certainly been exposed to this crisis through ever-frequent media reports of suicides. Given the widespread and detrimental nature of this crisis, it is imperative that prompt action is taken by individuals and institutions across a multitude of disciplines, the law notwithstanding. Indeed, the force of law itself implies that certain faculties possessed by …

May I Use The Restroom? The Supreme Court’S Likely Opportunity To Define “Sex” In Title Ix And End The Transgender Bathroom Debate, Kaleb Degler

SMU Law Review

The Supreme Court’s landmark decision in Bostock, which established that “sex” under Title VII includes gender identity and sexual orientation, now protects LGBTQ+ persons from discrimination in the workplace. However, this interpretation of “sex” was not subsequently applied wholesale to “sex” under Title IX, leaving many LGBTQ+ students—particularly transgender students—subject to the fate of where they were born and the shifting tides of the federal executive. Beginning with the Obama Administration, a history of conflicting guidance and opinion letters has dominated the discussion on whether transgender students are allowed to use the restroom that corresponds with their gender identity.

In …

Working Toward Break Point: Professional Tennis And The Growing Problem With Employee And Independent Contractor Misclassifications, Elizabeth Priest

SMU Law Review

An often overlooked yet extremely pressing issue in the U.S. economy is the misclassification of workers as independent contractors when they are actually employees. Because of such misclassifications, workers are denied their rights to federal antidiscrimination protections and the ability to collectively bargain through unions. Courts across the country utilize a variety of legal tests to determine if a worker is an employee or an independent contractor. The three most important legal tests are the right to control test, the economic realities test, and the ABC test.

Using men’s professional tennis as a case study, this Comment argues for the …

Boss Mom: Why Texas Should Revise Its Legislation To Allow Gestational Surrogacy Contract Enforcement For Social Surrogacies, Krista Thompson

SMU Law Review

Career-driven women have consistently been forced to choose between their careers and creating a family. However, with the use of reproductive technology, this is no longer necessary. In recent years, fertile women have been looking to gestational surrogacy as a pregnancy alternative. These women are opting to use surrogates not be- cause they cannot bear a child but because being pregnant is not feasible for their careers. These surrogacies have been termed “social surrogacies.” However, surrogacy laws throughout the United States are diverse and complicated, and many do not allow for the enforcement of social surrogacy contracts. These states, particularly …

The Deficiencies Of Oregon Ballot Measure 110, Jacob Towles

SMU Science and Technology Law Review

In 1970, the Federal Government enacted the Controlled Substance Act (CSA), which made certain drugs and substances illegal absent a medical prescription. The control of drugs through the CSA exists to prevent harm to the public. Nonetheless, some cities and states have enacted laws that allow for the benefit of selling or pleasure of using illegal drugs to outweigh the legal ramifications.

In November 2020, The Drug Addiction Treatment and Recovery Act, also known as Oregon Ballot Measure 110 (Measure 110), made Oregon the first state in the country to decriminalize all drugs. Measure 110 was enacted with the overarching …

Front Matter

SMU Science and Technology Law Review

No abstract provided.

Selling Out For A Song: “Artist Abuse” And Saving Creatives From Servitude And Economic Disadvantage In The Entertainment Industry, Rick G. Morris

SMU Science and Technology Law Review

Artists drive the entertainment industry with their creative work, and in some cases, there are protections for artists when it comes to their work, wealth, and autonomy. However, the area of contracts called “private law,” under which artists’ contracts fall, is lightly regulated in comparison to other employment agreements. Artists, often at the beginning of their careers, are signed to long-term contracts that take advantage of them and do not provide adequate compensation. Artists might be locked into contractual arrangements that they cannot free themselves from. Sometimes, they are directly cheated. And much of this comes from people they trust, …

Creating A United Front: Harmonizing The United States Regulatory Policies Surrounding Human Embryonic Stem Cell Research, Sydney Kossow

SMU Science and Technology Law Review

Stem cell therapy is an imperative development in science and medicine that is heavily regulated worldwide. With the potential to cure illnesses, help understand disease development, and advance regenerative medicine, a harmonized regulatory policy is crucial to capitalize on the benefits of stem cells. This article examines an important topic of discussion surrounding stem cell therapy and research: the political debate on how and when embryonic stem cells can be used. In addition to examining ethical challenges, this article discusses the legal challenges surrounding using embryonic stem cells to inform regenerative therapies. Specifically, this article will examine the National Institute …

Direct-To-Consumer Genetic Testing: Privacy Issues & Impacts On Biological Relatives, Quinn Prchal

SMU Science and Technology Law Review

Numerous direct-to-consumer genetic testing services now offer individuals genetic sequencing, testing, and ancestry mapping services outside of the traditional healthcare infrastructure and regulatory barriers. The rise of direct-to-consumer testing services presents policy questions on how to best protect consumers while still promoting future innovation. From a data privacy perspective, concerns include who can share other people’s genetic information, what entities can use the information, what happens if the information is stolen, and whether law enforcement, or other entities, can request information from a third party. The overarching concern is that once disclosed, genetic information often cannot be unshared or returned. …

Remaining Human: How The Airline Deregulation Act Shields Commercial Air Carriers From Legal Liability For Mishandling Human Remains, Abigail A. Lahvis

Journal of Air Law and Commerce

The Airline Deregulation Act of 1978 (ADA) deregulated the domestic airline industry. Specifically, the ADA ended the dual administrative system, which allowed the states to regulate intrastate airfare and permitted the federal government’s Civil Aeronautics Board (CAB) to regulate interstate airfare. The Act also included a broad preemption clause to prevent the states from reimposing economic regulations on air travel. The preemption clause prohibits a “State . . . [from] enact[ing] or enforc[ing] any law, rule, regulation, standard, or other provision having the force and effect of law relating to rates, routes, or services of any air carrier.”

The Supreme …

Regulating Science Fiction: The Regulatory Deficiencies In A Rapidly Growing Commercial Space Industry, H. Austin Simpson

Journal of Air Law and Commerce

This Comment explores the deficiencies of the legal framework governing commercial space with the advent of satellite mega-constellations. The scope and size of these so-called constellations are completely unlike anything the space industry has contemplated since the first rocket was launched into orbit. Moreover, these constellations are an extremely new phenomenon—the prime movers in the industry are just beginning to create these massive man-made wonders in space. As such, the legal framework was designed around space operations that are much smaller in scope. That framework has struggled to keep pace with the rapidly growing commercial space industry generally and the …

At The Crossroads Between Bankruptcy And Aviation: The Proposed Bankruptcy Venue Reform And The Imperilment Of Foreign Airlines’ Availment To U.S. Bankruptcy Courts Under Chapter 11, Pauline Hodencq

Journal of Air Law and Commerce

The COVID-19 pandemic has wreaked havoc on several of the nation’s industries, aviation being no stranger given the financial difficulties, flight cancellations, and health mandates the sector consequently faced. Despite concerns that a wave of bankruptcy filings would submerge U.S. bankruptcy courts, the domestic need for restructuring did not arise as predicted, the main reason being the federal assistance provided to enterprises in peril. On the contrary, foreign debtor airlines were the ones to avail themselves of the experience and efficiency of magnet districts for restructuring under Chapter 11 of the Bankruptcy Code. Simultaneously, large domestic corporations sought the assistance …

Will Nfts Solve Some Of The Age-Old Problems In Art Law?, Ursula Von Schlenhenried

SMU Science and Technology Law Review

Non-Fungible Tokens, or NFTs, are digital assets based on blockchain technology and are steadily growing in popularity in the art market. The technology has created a novel way of establishing ownership through tamper-resistant cryptographic records. A majority of NFTs are created via the Ethereum protocol and are most notably associated with other assets, such as digital art. Even prominent auction houses, like Christie’s, have joined the action. NFTs offer a whole host of new and interesting legal concerns, including questions surrounding smart contracts. The concerns surrounding traditional art, however, are long-standing and include (but are not limited to) provenance, authenticity, …

The Case For The Abolition Of Criminal Confessions, Guha Krishnamurthi

SMU Law Review

Confessions have long been considered the gold standard of evidence in criminal proceedings. But in truth, confession evidence imposes significant harms on our criminal justice system, through false convictions and other violations of defendants’ due process and moral rights. Moreover, our current doctrine is unable to eliminate or even curb these harms.

This Article makes the case for the abolition of confession evidence in criminal proceedings. Though it may seem radical, abolition is sensible and best furthers our penological goals. As a theoretical matter, confession evidence has low probative value, but it is prejudicially overvalued by juries and judges. Consequently, …

Integrated Nonmarital Property Rights, E. Gary Spitko

SMU Law Review

Nonmarital cohabitation has become a mainstream family structure in the United States. Yet despite the increasing prevalence of nonmarital cohabitants, American family property law generally fails to support nonmarital couples. This inequality under the law disproportionately disadvantages persons of color, those with relatively less education, and couples with relatively fewer economic resources. This Article considers the post-Obergefell need for law reform to better support nonmarital families, examines the principles that should ground nonmarital property rights reform, and proposes a novel approach to nonmarital property rights that integrates the law of dissolution with the law of succession, unifies the law …

The Boundaries Of Multi-Parentage, Jessica Feinberg

SMU Law Review

Multi-parentage has arrived. In recent years, a growing number of courts and legislatures have recognized that a child may have more than two legal parents. A number of significant societal, medical, and legal developments have contributed to the trend toward multi-parentage recognition. The traditional family structure of a married different-sex couple and their biological children currently represents only a minority of U.S. families. Stepparents, non-marital partners of legal parents, and extended family members often play a significant role in children’s lives, and it has become increasingly common for same-sex couples to welcome children into their families. In addition, advancements in …

Diligent Zero, Frédéric G. Sourgens

SMU Law Review

Energy transition policies will soon transform the backbone of our globalized economy. Problematically, leading policymakers advocate for a form of energy system shock therapy: they argue we should abandon fossil fuels to achieve net zero greenhouse gas emissions as soon as technically feasible. Because current energy systems have deep structural importance for our daily lives and determine everything from where we live to how we work, such shock therapy has potentially catastrophic economic, social, and cultural consequences around the world. I argue that we can achieve meaningful energy transition success without such catastrophic consequences if we pivot from a net …

Compelling Code, Nicole Ligon

SMU Law Review

Does the First Amendment protect computer code from being compelled by the government? As society becomes more reliant on coded devices— like pacemakers, insulin pumps, and even some baby bassinets—courts will need to grapple with this question. In considering compulsions related to code, this Article concludes that intermediate scrutiny is almost always the appropriate standard of review. Rather than expressing a particular viewpoint, code generally constitutes a functional and neutral script. Given that a machine’s interpretation of code generally results in an objective action, not a subjective belief, the government need only show in most instances that the compulsion furthers …

Combatting Ai’S Protectionism & Totalitarian-Coded Hypnosis: The Case For Ai Reparations & Antitrust Remedies In The Ecology Of Collective Self-Determination, Maurice Dyson

SMU Law Review

Artificial Intelligence’s (AI) global race for comparative advantage has the world spinning, while leaving people of color and the poor rushing to reinvent AI imagination in less racist, destructive ways. In repurposing AI technology, we can look to close the national racial gaps in academic achievement, healthcare, housing, income, and fairness in the criminal justice system to conceive what AI reparations can fairly look like. AI can create a fantasy world, realizing goods we previously thought impossible. However, if AI does not close these national gaps, it no longer has foreseeable or practical social utility value compared to its foreseeable …

Customary International Law As A Vessel For Global Accord: The Case Of Customary Rules-Of- The-Road For Governing The Orbital Highways Of Earth, Hjalte Osborn Frandsen

Journal of Air Law and Commerce

In a time where the international community seems unable or unwilling to commit to binding instruments to solve global-governance issues, ranging from climate to cybercrime, increased reliance on customary norms presents a path forward. Using the case of space traffic, this author investigates if and how customary international law can emerge to govern complex transnational issues. The traditional approach to international custom is augmented with perspectives from the broader field of social science to accord for the influence of private actors and technological development on the formation of customary law.

Commercialization of the space sector has unleashed a tremendous proliferation …

Credibility In Empirical Legal Analysis, Hillel J. Bavli

Faculty Journal Articles and Book Chapters

Empirical analysis is central in both legal scholarship and litigation, but it is not credible. Researchers can manipulate data to arrive at any conclusion they wish to obtain. A practice known as data fishing—searching for and selectively reporting methods and results that are favorable to the researcher—entirely invalidates a study’s results by giving rise to false positives and false impressions. Nevertheless, it is prevalent in law, leading to false claims, incorrect verdicts, and destructive policy. In this article, I examine the harm that data fishing in empirical legal research causes. I then build on methods in the sciences to develop …