Law Commons^™

The Quad (The 2014 Alumni Magazine), Southern Methodist University, Dedman School Of Law

The Quad (Law Alumni Magazine), 1988-present

• SMU Dedman School of Law welcomes Jennifer M. Collins as the Judge James Noel Dean and Professor of Law
• Celebrating historic gifts to the law school including the Hunter Legal Center and the VanSickle Family Law Clinic
• SMU Dedman Law and The Texas Lawbook CLE Series co-host a new series of CLEs covering topics ranging from the insider trading trial of Mark Cuban to what it's like to be the GC of a major Dallas sports team
• A dialogue on constitutional law with Harvard Law Professor Alan Dershowitz
• A Tribute to Adelfa Callejo

Flowback: Federal Regulation Of Wastewater From Hydraulic Fracturing, Jeffrey M. Gaba

Faculty Journal Articles and Book Chapters

Natural gas produced through hydraulic fracturing remains a critical, and controversial, component of U.S. energy production. A key environmental issue associated with fracking is the management and disposal of the enormous quantities of wastewater generated in the process.

Substantial federal authority exists to regulate fracking wastewater under the Resource Conservation and Recovery Act and the Clean Water Act. Regulation under RCRA, however, depends on classification of the wastewater as a RCRA “hazardous waste.” Although EPA has generally exempted oil and gas wastes, including fracking wastewater, from classification as a RCRA hazardous waste, it appears that fracking wastewater would not generally …

An 'I Do' I Choose: How The Fight For Marriage Access Supports A Per Se Finding Of Persecution For Asylum Cases Based On Forced Marriage, Natalie Nanasi

Faculty Journal Articles and Book Chapters

There is something special about marriage. The U.S. Supreme Court, in striking down anti-miscegenation laws, restrictions on the right to marry for disadvantaged groups, and most recently, the Defense of Marriage Act, has long recognized the marital union to be "sacred" and "fundamental to…existence." Yet this analysis is dramatically different when courts consider asylum law, where a woman who is seeking refuge in the United States to protect her from a forced marriage abroad will likely be denied protection because the harm she fears is not considered to be a "persecutory" act. She may therefore be forced to spend a …

Civil Liberties And The Indefinite Detention Of U.S. Citizens, Chris Jenks

Faculty Journal Articles and Book Chapters

Section 1021 of the 2012 National Defense Authorization Act provides for the indefinite detention of individuals deemed to be part of or substantially supportive of al Qaeda, the Taliban, and associated forces in hostilities against the United States or its coalition allies. Yet the Congress which drafted Section 1021 doesn’t know what its operative terms mean and the Executive Branch simultaneously claims the provisions are problematic yet meaningless and signs them into law. The result is uncertainty over the Executive Branch’s armed conflict detention authority, not on distant battlefields, but here in the United States. This article focuses on three …

Overstepping Ethical Boundaries? Limitations On State Efforts To Provide Access To Justice In Family Courts, Jessica Dixon Weaver

Faculty Journal Articles and Book Chapters

Family law courts in America are overwhelmed with self-represented parties who try their best to navigate an unfamiliar territory laden with procedural and evidentiary rules. Efforts to level the playing field in these courts have resulted in state entities and judges taking on roles that previously belonged to attorneys. State supreme court judges and state agencies draft and promulgate family law forms, such as divorce pleadings and paternity acknowledgments, to provide poor citizens access to justice. While these efforts have resulted in positive outcomes for some families, reliance on the state’s imprimatur has caused significant harm to others. Upon closer …

Double Take: The Law Of Embezzled Lives, Joanna L. Grossman, Lawrence M. Friedman

Faculty Journal Articles and Book Chapters

This essay is about double lives and role-playing in law and society when and why it occurs, how the law responds to it, and its social meaning or significance.

The authors discuss situations in light of many examples, where it is (or was) considered wrong or illegal to live two lives; or where the "false" life is a lie of the type that would be considered gravely and impermissibly deceptive.

What Is Extraterritorial Jurisdiction?, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

The phenomenon of extraterritorial jurisdiction, or the exercise of legal power beyond territorial borders, presents lawyers, courts, and scholars with analytical onions comprising layers of national and international legal issues; as each layer peels away, more issues are revealed. U.S. courts, including the Supreme Court, have increasingly been wrestling this conceptual and doctrinal Hydra. Any legal analysis of extraterritorial jurisdiction leans heavily on the answers to two key definitional questions: What do we mean by “extraterritorial”? And, what do we mean by “jurisdiction”? Because the answer to the first question is often conditional on the answer to the second, the …

Beyond Child Welfare - Theories On Child Homelessness, Jessica Dixon Weaver

Faculty Journal Articles and Book Chapters

According to recent federal data from 2013, the number of children who experience homelessness in the United States has reached an astonishing 2.5 million. Among industrialized nations, America has a one of the highest poverty rates among children, peaking at 22% in 2010. This Article considers why there is an ambivalent and sometimes hostile response to chronic, persistent poverty among families with young children. Various reports on the state of homeless families state that the cause of homelessness is a combination of lack of affordable housing, extreme poverty, decreasing government support, domestic violence, the challenge of raising children alone, and …

Larry From The Left: An Appreciation, Grant M. Hayden, Matthew T. Bodie

Faculty Journal Articles and Book Chapters

This essay approaches the scholarship of the late Professor Larry Ribstein from a progressive vantage point. It argues that Ribstein's revolutionary work upended the "nexus of contracts" theory in corporate law and provided a potential alternative to the regulatory state for those who believe in worker empowerment and anti-cronyism. Progressive corporate law scholars should look to Ribstein's scholarship not as a hurdle to overcome, but as a resource to be tapped for insights about constructing a more egalitarian and dynamic economy.

Monitoring, Reporting, And Fact-Finding: Does The Human Rights Council Report On Human Rights In North Korea Provide A Template For The Sri Lankan Investigation?, Chris Jenks

Faculty Journal Articles and Book Chapters

2014 has already heralded two significant developments related to monitoring, reporting, and fact-finding (MRF) mechanisms for collecting information on alleged international law violations. First, the Human Rights Council (HRC) published their “Report of the detailed findings of the commission of inquiry on human rights in the Democratic People’s Republic of Korea” in February. This report may provide a roadmap for the second important development, the HRC’s decision in March to investigate alleged international law violations during the final phase of the armed conflict in Sri Lanka. More broadly, both these efforts offer lessons for any group or body participating in …

Pleading Securities Fraud Claims - Only Part Of The Story, Marc I. Steinberg

Faculty Journal Articles and Book Chapters

The failure to survive a motion to dismiss based on deficient pleading of claims alleged in a federal securities class action results in the end of the litigation (when such motion is granted with prejudice). This obstacle, however, presents only part of the story. Today, due to developments that are addressed in this Article, plaintiffs institute federal securities class actions against fewer types of defendants as contrasted with the situation two decades ago.

Oil, Gas, And Mineral Law, Richard F. Brown

SMU Annual Texas Survey

No abstract provided.

Taxation, Cynthia M. Ohlenfrost, Sam Megally, William J. Ledoux

SMU Annual Texas Survey

No abstract provided.

Limits On The Search For Truth In Criminal Procedure: A Comparative View, Jenia I. Turner

Faculty Journal Articles and Book Chapters

Across diverse legal traditions, the search for truth is a basic function of the criminal process. Uncovering the truth about the charged crime is regarded as an essential precondition to achieving justice, enforcing criminal law, and legitimating the verdict. Yet while truthseeking is a broadly accepted goal in the criminal process, no system seeks the truth at all costs. The search for truth must on occasion yield to considerations related to efficiency, democratic participation, and protection of individual rights.

Different jurisdictions around the world show different preferences with respect to the tradeoffs between these values and the search for truth …

The Humanities And Public Life By Peter Brooks (Ed.) With Hilary Jewett, Anna Offit

Faculty Journal Articles and Book Chapters

No abstract provided.

Perpetuities And The Genius Of A Free State, Joshua C. Tate

Faculty Journal Articles and Book Chapters

The recent rise of perpetual trusts has brought new attention to previously obscure state constitutional prohibitions of perpetuities. This symposium commentary examines the historical origins of the first such prohibition, Clause 23 of the 1776 North Carolina Constitution and Declaration of Rights, which provided that “perpetuities and monopolies are contrary to the genius of a free State, and ought not to be allowed.” Although many good reasons can be offered for the provision, it is curiously absent from the constitutions of the twelve other original states. Why did this provision emerge only in North Carolina, and not in Virginia, Massachusetts, …

Empiricism, Experimentalism, And Conditional Theory, Victoria Frances Nourse, Gregory C. Shaffer

SMU Law Review

No abstract provided.

Sharing Stupid $H*T With Friends And Followers: The First Amendment Rights Of College Athletes To Use Social Media, Mary Margaret Meg Penrose

SMU Science and Technology Law Review

No abstract provided.

Importing Energy, Exporting Regulation, James W. Coleman

Faculty Journal Articles and Book Chapters

This Article identifies and addresses a growing contradiction at the heart of United States energy policy. States are the traditional energy regulators and energy policy innovators — a role that has only grown more important without a settled federal climate policy. But federal regulators and market pressures are increasingly demanding integrated national and international energy markets. Deregulation, the rise of renewable energy, the shale revolution, and new sources of motor fuel precursors like crude and ethanol have all increased interstate energy trade.

The Article shows how integrated national energy markets are driving states to regulate imported fuel and electricity based …

Unilateral Climate Regulation, James W. Coleman

Faculty Journal Articles and Book Chapters

It is now plain that decades of negotiation toward a binding global climate treaty have failed. Yet, at the same time, many nations are adopting a range of unilateral policies to address climate change. The existing literature on climate policy neglects these unilateral climate regulations because it focuses on the necessity and possible design of a multilateral climate treaty. But these domestic regulations present a unique puzzle: given that climate outcomes are determined by global emissions, and that unilateral regulations inevitably influence incentives to regulate elsewhere, how can domestic action achieve the greatest marginal reduction in global emissions? In other …

Interstate Conflict And Cooperation In Criminal Cases: An American Perspective, Jenia I. Turner

Faculty Journal Articles and Book Chapters

Over the last decade, the European Union has adopted legislation that calls for the mutual recognition of arrest warrants, investigation orders, and penal judgments. These laws have aimed to strengthen the Union’s response to transnational crime, and EU policymakers are currently considering legislation to further harmonize the Union's law enforcement efforts. This Article compares these developments within the EU to the U.S. legal framework on mutual recognition in criminal matters. It examines the individual, state and systemic interests that U.S. state courts have considered in deciding whether to recognize other states' judgments, warrants, or investigative actions. These competing interests have …

The Law Is A Causeway: Metaphor And The Rule Of Law In Russia, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

The chapter explores how a metaphor for the rule of law created by the playwright Robert Bolt captures the difficulty that Russia has experienced in its self-proclaimed pursuit of a rule-of-law state: "The law is not a 'light' for you or any man to see by; the law is n instrument of any kind. The law is a causeway upon which, so long as he keeps to it, a citizen may walk safely." In Russia, the failure to build a rule-of-law state has been, among other things, a failure to create what this metaphor describes as the essence of that …

Juries And The Criminal Constitution, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

Judges are regularly deciding criminal constitutional issues based on changing societal values. For example, they are determining whether police officer conduct has violated society’s "reasonable expectations of privacy" under the Fourth Amendment and whether a criminal punishment fails to comport with the "evolving standards of decency that mark the progress of a maturing society" under the Eighth Amendment. Yet judges are not trained to assess societal values, nor do they, in assessing them, ordinarily consult data to determine what those values are. Instead, judges turn inward, to their own intuitions, morals, and values, to determine these matters. But judges’ internal …

Moral Touchstone, Not General Deterrence: The Role Of International Criminal Justice In Fostering Compliance With International Humanitarian Law, Chris Jenks

Faculty Journal Articles and Book Chapters

This article contends that international criminal justice provides minimal general deterrence of future violations of international humanitarian law (IHL). Arguments that international courts and tribunals deter future violations – and that such deterrence is a primary objective – assume an internally inconsistent burden that the processes cannot bear, in essence setting international criminal justice up for failure. Moreover, the inherently limited number of proceedings, the length of time required, the dense opinions generated, the relatively light sentences and the robust confinement conditions all erode whatever limited general deterrence international criminal justice might otherwise provide. Bluntly stated, thousands of pages of …

The Janus Moon Rising - Why 2014 Heralds United States' Detention Policy On A Collision Course...With Itself, Chris Jenks

Faculty Journal Articles and Book Chapters

2014 will serve as a test of the United States’ claims that its detention policy is consistent with the law of armed conflict (LOAC). If, as President Obama has repeatedly stated, U.S. involvement in the armed conflict in Afghanistan will end this year, then any LOAC based detention of belligerents linked solely to that conflict ends as well. That should mean the release or transfer of members of the Taliban currently detained at Guantanamo. It won’t.

Qualified Immunity And Privacy-The Fifth Circuit Finds That Students Have No Clearly Established Right To Confidentiality In Their Sexual Orientation, Michael Sheetz

SMU Law Review

No abstract provided.

Front Matter, Smu Law Review

SMU Law Review

No abstract provided.

The Constitutionality Of Negotiated Criminal Judgments In Germany, Thomas Weigend, Jenia I. Turner

Faculty Journal Articles and Book Chapters

In a long-awaited judgment, the German Constitutional Court in 2013 upheld the constitutionality of the 2009 German law authorizing the negotiation of criminal judgments between the court and the parties. In this Article, we provide background on recent developments in “plea bargaining” law and practice in Germany and offer a critique of the Court’s decision.

The Court attempted to rein in negotiated judgments by giving the statute a literal reading, emphasizing the limitations it places on negotiations, and strictly prohibiting any consensual disposition outside the statutory framework. The Court builds its judgment on the notion that the search for truth, …

Regulating Disruptive Innovation, Nathan Cortez

Faculty Journal Articles and Book Chapters

Disruption theory tells us that certain innovations can undermine existing products, firms, or even entire industries. Classic examples include the Kodak camera, the Bell telephone, and the Ford Model T. Modern examples abound. The market entrant’s innovation ultimately displaces industry incumbents. Regulators, too, are challenged by such disruptive innovations. The new product, technology, or business practice may fall within an agency’s jurisdiction but not square well with the agency’s existing regulatory framework. Call this “regulatory disruption.”

Most scholars intuit that regulators should be cautious rather than firm in such situations. Tim Wu, in Agency Threats, argues that agencies confronting disruptive …

A Game Changer For The Political Economy Of Economic Development Incentives, Stephen E. Ellis, Grant M. Hayden, Cynthia L. Rogers

Faculty Journal Articles and Book Chapters

State and local governments have embraced their authority to offer economic development incentives for the purpose of attracting, retaining, or enhancing economic activity within their borders. Collectively, these programs represent an enormous, but largely overlooked, transfer of wealth from public entities to private firms. The increasing use of economic development incentives runs counter to the guidance offered by academic researchers. With their proliferation comes the increasing need for accountability in the decision-making process. The authors consider whether the duty of care standard used in corporate governance should be applied to the public decision-making context regarding economic development incentives.