Digital Commons Network^™

Achieving Privacy, Anupam Chander, Meaza Abraham, Sandeep Chandy, Yuan Fang, Dayoung Park, Isabel Yu

SMU Law Review

Is privacy a luxury for the rich? Remarkably, there is a dearth of literature evaluating whether data privacy is too costly for companies to implement or too expensive for governments to enforce. This paper is the first to offer a review of the costs of compliance and to summarize national budgets for enforcement. Our study suggests that, while privacy may indeed prove costly for companies to implement and may present a special burden for small and medium-sized businesses, it is not too costly for governments to enforce. Indeed, the European Union, seen as a global champion of privacy, expends less …

Slavery And The Postbellum University: The Case Of Smu, Lolita Buckner Inniss, Skyler Arbuckle

SMU Law Review

People who practiced slavery across the United States, or engaged in slavery-related practices, were often the same civically-minded social, legal, and economic leaders who founded the nation’s first colleges and universities. There was, thus, from our earliest times, an unacknowledged but firm tie between the values and high ideals of the academy that existed in stark contraposition to the horrors of human bondage that fueled those institutions. Many North American colleges founded before the Civil War relied on money derived from the elite members of society with direct involvements in slavery. While a growing body of scholarly work discusses early …

How Analogizing Socio-Legal Responses To Organ Transplantation Can Further The Legalization Of Reproductive Genetic Innovation, Myrisha S. Lewis

SMU Law Review

The Nobel Foundation emphasized the significance of genetic innovation to society, science, and medicine by awarding the 2020 Nobel Prize in Chemistry to “the CRISPR/Cas9 genetic scissors.” This Article focuses on “reproductive genetic innovation,” a term that includes cytoplasmic transfer, mitochondrial transfer, and germline or heritable gene editing techniques that are all categorized as “experimental” in the United States. These techniques all use in vitro fertilization, a legal and widely available practice. Yet reproductive genetic innovation has resulted in controversy and numerous barriers including a recurring federal budget rider, threats of federal enforcement action, and the unavailability of federal funding. …

The Constitutional Basis For Inmate Gender Confirmation Surgery, Bryce Couch

SMU Law Review

Transgender refers to “people whose gender identity, gender expression, or behavior does not conform to what is socioculturally accepted as, and typically associated with, the legal and medical sex to which they were assigned at birth.” Despite representing a small percentage of the U.S. population (0.58%), the transgender community is disproportionately represented in the prison system. Studies suggest that one-in-six transgender people (16%) have been incarcerated in their lifetime, compared to 2.8%–6.6% of the general U.S. population. In total, transgender individuals comprise 0.24% of the U.S. prison and jail population.

Unfortunately, research indicates that the prison system is “ill-prepared to …

Hold My Beer, Hold My Price: State Post-And-Hold Regulatory Schemes Constitute Price Fixing Preempted By Federal Antitrust Law, Kathrine Maldonado

SMU Law Review

The Supreme Court has created various tests in cases involving antitrust preemption of state regulations—such as Midcal’s state immunity two-pronged analysis and Fisher’s hybrid versus unilateral restraint test—without clarifying how the various tests fit together. This has led to circuit splits not only in regard to how courts approach antitrust preemption cases but also in regard to the preemption findings of nearly identical laws in different circuits. In a departure from the Ninth and Fourth Circuits, the Second Circuit recently upheld the validity of Connecticut’s post-and-hold alcohol pricing regulation. State post-and-hold regulations effectuate illegal price fixing between competitors …

Front Matter

Journal of Air Law and Commerce

No abstract provided.

Cause And Effect In Antidiscrimination Law, Hillel J. Bavli

Faculty Journal Articles and Book Chapters

Standards of causation in antidiscrimination law, and disparate-treatment cases in particular, are deeply flawed. Their defects have caused an illogical, obscure, and unworkable proof scheme that requires an overhaul to curb the harm that it engenders and to allow the antidiscrimination statutes to serve their objectives effectively. This Article proposes a theory and method of causation that achieves this goal. The problem stems from the inadequacies associated with current standards of causation in disparate-treatment cases—the but-for test and the motivating-factor test. The proposed “factorial” approach introduces a causal standard that addresses these inadequacies. It entails three innovations over current causation …

Transparency In Plea Bargaining, Jenia I. Turner

Faculty Journal Articles and Book Chapters

lea bargaining is the dominant method by which our criminal justice system resolves cases. More than 95% of state and federal convictions today are the product of guilty pleas. Yet the practice continues to draw widespread criticism. Critics charge that it is too coercive and leads innocent defendants to plead guilty, that it obscures the true facts in criminal cases and produces overly lenient sentences, and that it enables disparate treatment of similarly situated defendants.

Another feature of plea bargaining — its lack of transparency — has received less attention, but is also concerning. In contrast to the trials it …

Remote Criminal Justice, Jenia I. Turner

Faculty Journal Articles and Book Chapters

The coronavirus pandemic has forced courts to innovate to provide criminal justice while protecting public health. Many have turned to online platforms in order to conduct criminal proceedings without undue delay. The convenience of remote proceedings has led some to advocate for their expanded use after the pandemic is over. To assess the promise and peril of online criminal justice, I surveyed state and federal judges, prosecutors, and defense attorneys across Texas, where virtual proceedings have been employed for a range of criminal proceedings, starting in March 2020. The survey responses were supplemented with direct observations of remote plea hearings …

Playing By The Rule: How Aba Model Rule 8.4(G) Can Regulate Jury Exclusion, Anna Offit

Faculty Journal Articles and Book Chapters

Discrimination during voir dire remains a critical impediment to empaneling juries that reflect the diversity of the United States. While various solutions have been proposed, scholars have largely overlooked ethics rules as an instrument for preventing discriminatory behavior during jury selection. Focusing on the ABA Model Rule 8.4(g), which regulates professional misconduct, this article argues that ethics rules can, under certain conditions, offer an effective deterrent to exclusionary practices among legal actors. Part I examines the specific history, evolution, and application of revised ABA Model Rule 8.4(g). Part II delves into the ways that ethics rules in general, despite their …

Race-Conscious Jury Selection, Anna Offit

Faculty Journal Articles and Book Chapters

Among the central issues in scholarship on the American jury is the effect of Batson v. Kentucky (1986) on discriminatory empanelment. Empirical legal research has confirmed that despite the promise of the Batson doctrine, both peremptory strikes and challenges for cause remain tools of racial exclusion. But these studies, based on post facto interviews, transcript analysis, and quantitative methods offer little insight into Batson’s critical impact on real-time decision-making and strategy in voir dire. If we increasingly know what kinds of juries are produced in the post-Batson world, we know very little about how they are produced.

This Article addresses …

Benevolent Exclusion, Anna Offit

Faculty Journal Articles and Book Chapters

The American jury system holds the promise of bringing commonsense ideas about justice to the enforcement of the law. But its democratizing effect cannot be realized if a segment of the population faces systematic exclusion based on income or wealth. The problem of unequal access to jury service based on socio-economic disparities is a longstanding yet under-studied problem—and one which the uneven fallout of the COVID-19 pandemic only exacerbated. Like race- and sex-based jury discrimination during the peremptory challenge phase of jury selection, the routine dismissal of citizens who face economic hardship excludes not only people but also the diversity …

Framing Individualized Sentencing For Politics And The Constitution, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

For decades, there was not much growth in the U.S. Supreme Court’s interpretation and application of the Eighth Amendment’s prohibition on cruel and unusual punishments. In recent years, though, the Court has expanded the Amendment’s scope to prohibit executing intellectually disabled and juvenile offenders, to ban capital punishment for all non-homicide offenses against individuals, and to for-bid life-without-parole sentences for juveniles when that punishment was mandatorily imposed or imposed on non-homicide offenders. With changing politics and a changing Court, any further expansion of Eighth Amendment protections will likely be difficult for years to come. With the recent confirmation of Amy …

Death Of The Particular Social Group, Natalie Nanasi

Faculty Journal Articles and Book Chapters

Applicants seeking asylum in the United States must demonstrate that they fear persecution on account of one of five protected grounds—race, religion, national origin, political opinion, or membership in a particular social group (PSG). The PSG ground has long been the most complex and challenging avenue for relief, and in the Trump era, already precarious protections for vulnerable people such as survivors of intimate partner and gang violence were further impaired.

The Board of Immigration Appeals’ first, and longstanding, definition of a PSG in Matter of Acosta required members to possess “common immutable characteristics,” those that, like the other statutory …

Facilitating Capital Raising: The Sec’S 2020 Amendments To The Exempt Offering Framework, Marc I. Steinberg, Taylor E. Santori

Faculty Journal Articles and Book Chapters

No abstract provided.

Law Of The Gun: Unrepresentative Cases And Distorted Doctrine, Eric Ruben

Faculty Journal Articles and Book Chapters

There is a familiar saying, “If all you have is a hammer, everything looks like a nail.” The so-called Law of the Hammer takes a distinctive form in adjudication. If all judges see is one repeating fact pattern for a given area of law, they might perceive it as archetypical and build the law around it. If that fact pattern does not accurately reflect the field, however, the result can be analytical distortion in terms of both the choice of doctrine and its implementation.

This Article uses Second Amendment jurisprudence to illustrate this phenomenon. It reveals how District of Columbia …

Exploring The Implications Of Artificial Intelligence, Kristin N. Johnson, Carla L. Reyes

Faculty Journal Articles and Book Chapters

Emerging technologies promise to play a transformative role in our society, enabling driverless cars, enhanced accuracy and efficiency in disease mapping, greater and less expensive access to certain consumer services, including consumer financial services. Discussions regarding the role of emerging technologies increasingly center on the development and integration of artificial intelligence technologies or AI-an assemblage of technologies that rely on a variety of computational techniques. This Essay offers a modest primer outlining a general understanding of the contours and contributions of Al, as well as introducing the articulated benefits and limits

of these technologies.

This Essay examines the increasingly pervasive …

Autonomous Corporate Personhood, Carla L. Reyes

Faculty Journal Articles and Book Chapters

Several states have recently changed their business organization law to accommodate autonomous businesses—businesses operated entirely through computer code. A variety of international civil society groups are also actively developing new frameworks— and a model law—for enabling decentralized, autonomous businesses to achieve a corporate or corporate-like status that bestows legal personhood. Meanwhile, various jurisdictions, including the European Union, have considered whether and to what extent artificial intelligence (AI) more broadly should be endowed with personhood to respond to AI’s increasing presence in society. Despite the fairly obvious overlap between the two sets of inquiries, the legal and policy discussions between the …

Virtual Guilty Pleas, Jenia I. Turner

Faculty Journal Articles and Book Chapters

The coronavirus pandemic led criminal courts across the country to switch to virtual hearings to protect public health. As the pandemic subsides, many policymakers have called for the continued use of the remote format for a range of criminal proceedings. To guide decisions whether to use remote criminal justice on a regular basis, it is important to review the advantages and disadvantages of the practice.

Remote criminal proceedings have been praised for their convenience and efficiency, but have also raised concerns. Many have worried that videoconferencing inhibits effective communication between defendants and their counsel, hinders defendants’ understanding of the process, …

Tributes To Family Law Scholars Who Helped Us Find Our Path: Dorothy E. Roberts, Jessica Dixon Weaver

Faculty Journal Articles and Book Chapters

Professor Dorothy Roberts is a legacy builder and an inspiration for women, African American scholars, youth, and ordinary folks who want to make a difference in the lives of others. Her work in the field of family, race, and gender law is nothing short of prolific. She is a powerhouse whose research and advocacy reach across law into the fields of Africana studies, sociology, anthropology, medicine, psychology, political science, business, economics, and human rights. She is one of the first female professors to unpack how the law interfaces with Black women in various roles—as mother, wife, partner, daughter, caretaker, worker, …

The Ties That Bind: What Pauli Murray Teaches Us About Race, Family, Slavery, And Inequality, Jessica Dixon Weaver

Faculty Journal Articles and Book Chapters

Pauli Murray is an unsung American hero. The modern-day understanding of equality and the legal arguments used to obtain it for various groups including African Americans, women, and the LGBTQ community were the brainchild of Pauli Murray. This essay illustrates how Dr. Murray’s family history is emblematic of the struggle for racial justice and equality in America. The pain and tenacity of her ancestors shaped her destiny and spurred her activism. Her family experiences illuminate the many ways that the foothold of structural racism began with placing insurmountable legal barriers between Black men, women, and children as a family unit. …

Presidential Administration And Fda Guidance: A New Hope, Nathan Cortez, Jacob S. Sherkow

Faculty Journal Articles and Book Chapters

Assessments of a President’s first 100 days in office typically focus on legislative priorities and executive orders. Less attention is paid to early victories achieved via guidance and other informal acts of “presidential administration.” The COVID-19 pandemic has opened a window for the Biden Administration to effectuate critical public health policies through guidance issued by the Food and Drug Administration. This brief essay highlights the power—and pitfalls—of effectuating public health policy this way, and discusses the lasting power of guidance for any new administration.

Immoral Patents, David O. Taylor

Faculty Journal Articles and Book Chapters

Only to a limited extent have U.S. legislators recognized the moral and ethical implications of the patentability of controversial technologies. I find this absence of legislative debate curious for several reasons, including the fact that for decades there has been an intense public debate over the government’s involvement in, and regulation of, research and development related to biotechnology, including reproduction technologies, and particularly the use and destruction of embryonic stem cells, embryos, and fetuses—areas of considerable moral and ethical concern. Nor has there been debate regarding patentability with respect to other areas of concern, such as technologies that damage the …

Front Matter

Journal of Air Law and Commerce

No abstract provided.

Programmed To Protect And Serve: The Dawn Of Drones And Robots In Law Enforcement, Nanci K. Carr

Journal of Air Law and Commerce

No longer does the field of law enforcement rely solely on human cognition and capability as drones have become first responders, responding to emergency calls with a drone rather than a human officer. Drone technology can transform police work, just as it has package delivery and military strategy. These drone officers allow for higher law enforcement efficiency, safer communities, and even saved lives. However, they also raise civil liberty concerns given that the drones have the power to track vehicles and people without consent, and they can collect and store video records of everyday life, reducing expectations of privacy. This …

A Primer On Opposing Construction Of Wind Farms Near Public-Use Airports, Alan Armstrong

Journal of Air Law and Commerce

We are witnessing an explosion in the construction of wind turbine generators, cell phone towers, and television/radio broadcast towers around the United States. The statutes, rules, regulations, and police guidance addressing when and where such structures can be erected near public-use airports are complex and intricate. The Federal Aviation Administration (FAA) focuses more on subjective than objective criteria in assessing whether an obstruction to air navigation is a hazard to air navigation.

To the extent the FAA conducts studies to determine whether an obstruction is a hazard, the courts are not uniform in assessing the effects of FAA studies. In …

Rethinking Cyberspace Operations: Widespread Electromagnetic Jamming By States Indicates Cyber Interference Is Not A Use Of Force, Vincent L. Defabo

Journal of Air Law and Commerce

Determining if a cyberspace operation by a State actor is an act of war (i.e., use of force under the U.N. Charter) has led to a misguided approach. In 2012, twenty legal experts that published the Tallinn Manual got it wrong. By utilizing the “effects-based approach” they attempted to equate the effects a cyber operation causes to that of a missile to determine if a use of force has occurred. While their underlying premise, that existing international law should be applied to cyber operations, was sound, the analytical approach is flawed.

This paper explores how the analytical model used by …

International Aviation Law And Pandemic, Timothy Ravich

Journal of Air Law and Commerce

Commercial airplanes are vectors of infectious disease, advancing, if not sparking, global epidemics and potentially pandemics by exporting pathogens from endemic areas of the world to non-endemic places. For example, according to the global scientific community, the Zika virus was introduced to the Americas by air travel. Researchers also believe that infected mosquitos on international flights contributed to the worldwide spread of malaria, Middle East Respiratory Syndrome, and the West Nile virus. Most recently, governmental authorities worldwide, in addition to issuing national or local shelter-in-place orders, closed their borders and grounded nearly all international air travel on account of the …

Arbitration Clauses In Intellectual Property Contracts: Past, Precedence, And Future, Julien Chaisse, A. Marisport

The International Lawyer

No abstract provided.

The Obligation To Prosecute Or Extradite (Belgium V. Senegal)

The International Lawyer

No abstract provided.