Law Commons^™

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, …

Front Matter

SMU Law Review

No abstract provided.

A Tribute To Beth Thornburg, Mary Emma Karam

SMU Law Review

No abstract provided.

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 …

Front Matter

SMU Law Review

No abstract provided.

A Functional Approach To Agency (In)Action, Lidiya Mishchenko

SMU Law Review

In the last five years, the Supreme Court has had a frenzied approach to judicial review of agency action, with two wings of the Court pulling it in opposite directions. The ideological divide of the Court on deference to agency action was on stark display in three recent cases dealing with the Patent and Trademark Office’s (PTO’s) new proceeding for reevaluating issued patents (inter partes review (IPR)). Specifically, in three vacillating opinions, the Court expanded, contracted, and then again expanded the scope of whether and to what extent a decision by the PTO Director to institute this new proceeding can …

Photo Of Elizabeth G. Thornburg

SMU Law Review

No abstract provided.

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 …

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 …

The Whole Truth: A Tribute To Professor Beth Thornburg, Julia Patterson Forrester Rogers

SMU Law Review

No abstract provided.

William V. Dorsaneo, Iii, Nathan L. Hecht

SMU Law Review

No abstract provided.

Tribute To William V. Dorsaneo, Iii, Chip Babcock

SMU Law Review

No abstract provided.

Addressing Big Tech’S Market Power: A Comparative Institutional Approach, Thomas A. Lambert

SMU Law Review

This Article provides a comparative institutional analysis of the three leading approaches to addressing the market power of large digital platforms: (1) traditional antitrust law, the approach thus far taken in the United States; (2) ex ante conduct rules, the approach embraced by the European Union’s Digital Markets Act and several bills under consideration in the U.S. Congress; and (3) ongoing agency oversight, the approach embraced by the United Kingdom with its newly established “Digital Markets Unit.” After identifying the general advantages and disadvantages of each approach, the Article examines how they are likely to play out in the context …

Tribute To Professor Elizabeth Thornburg, Jennifer M. Collins

SMU Law Review

No abstract provided.

Tribute To Professor Beth Thornburg, Melinda Arbuckle

SMU Law Review

No abstract provided.

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 …

Front Matter

SMU Law Review

No abstract provided.

Coding The Code: Catala And Computationally Accessible Tax Law, Sarah Lawsky

SMU Law Review

“Caligula posted the tax laws in such fine print and so high that his subjects could not read them . . . . That’s not a good idea, we can all agree. How can citizens comply with what they can’t see? And how can anyone assess the tax collector’s exercise of power in that setting?”

Ai, Equity, And The Ip Gap, Daryl Lim

SMU Law Review

Artificial intelligence (AI) has helped determine vaccine recipients, prioritize emergency room admissions, and ascertain individual hires, sometimes doing so inequitably. As we emerge from the Pandemic, technological progress and efficiency demands continue to press all areas of the law, including intellectual property (IP) law, toward incorporating more AI into legal practice. This may be good when AI promotes economic and social justice in the IP system. However, AI may amplify inequity as biased developers create biased algorithms with biased inputs or rely on biased proxies. This Article argues that policymakers need to take a thoughtful and concerted approach to graft …

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 …

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 …

Tribute To Professor Bill Dorsaneo, Elizabeth G. Thornburg

SMU Law Review

No abstract provided.

Tribute To Elizabeth G. Thornburg, Tom Melsheimer

SMU Law Review

No abstract provided.

In Appreciation Of Professor Bill Dorsaneo, David Crump

SMU Law Review

No abstract provided.

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 …

Solving The Procedural Puzzles Of The Texas Heartbeat Act And Its Imitators: The Potential For Defensive Litigation, Charles W. "Rocky" Rhodes, Howard M. Wasserman

SMU Law Review

The Texas Heartbeat Act (SB8) prohibits abortions following detection of a fetal heartbeat, a constitutionally invalid ban under current Supreme Court precedent. But the law adopts a unique enforcement scheme—it prohibits enforcement by government officials in favor of private civil actions brought by “any person,” regardless of injury. Texas sought to burden reproductive-health providers and rights advocates with costly litigation and potentially crippling liability.

In a series of articles, we explore how SB8’s exclusive reliance on private enforcement creates procedural and jurisdictional hurdles to challenging the law’s constitutional validity and obtaining judicial review. This piece explores defensive litigation, in which …

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 …

Tribute To Professor William Dorsaneo, Iii, Jennifer M. Collins

SMU Law Review

No abstract provided.

Tribute To Professor Beth Thornburg, William V. Dorsaneo Iii

SMU Law Review

No abstract provided.

Contract Law’S “Too Good To Be True” Doctrine—Is It?, William A. Drennan

SMU Law Review

In a wonderful variety of emotionally charged contract law opinions, including the cases of the boastful cheater, the opportunistic attorney, and the careless concrete contractor,3 courts unfortunately have used the phrase “too good to be true” as a single-step test to decide enforceability. These cases can generate emotional responses ranging from empathy4 to schadenfreude5 because they involve a mistake with potentially disastrous results for one party (and a windfall for the other side). It is understandable that courts would be drawn to a catchy, down-to-earth phrase to reach a just resolution in these entertaining and memorable cases.

Nevertheless, this Article …