Law Commons^™

Protect Trans Kids: A Call To Action, Suzi Goebel

SMU Law Review Forum

The last several years have seen an increasing number of attacks on marginalized groups in the United States, including people of color, women, and members of the LGBTQ+ community. Most recently, some state legislatures have focused their efforts on preventing transgender youth from accessing gender-affirming medical care. Despite a virtually unanimous consensus on the importance and benefits of gender-affirming care, many conservative politicians have taken aim at vulnerable children, standing in the way of potentially life-saving treatment and accusing their families and doctors of child abuse. Laws preventing transgender youth from receiving gender-affirming care are just one battle in the …

Section 363 Sales And Their Blind Faith In The Markets, Jacob Deselms

SMU Law Review Forum

Airlines tend to go bankrupt. In fact, all the so-called legacy carriers have gone bankrupt at one time or another. What leads these airlines into financial distress varies from case to case. Sometimes they are overrun by costs, and other times they lack sufficient demand. The concern of this paper, though, is not why airlines file bankruptcy—it is assumed that, from time to time, airlines will face financial distress and will require the protection of the U.S. Bankruptcy Code (the Code). Instead, this paper will examine how large firms such as airlines are navigating bankruptcies today.

After providing some overview …

Unconscionability And Poverty, Mark G. Kelman

SMU Law Review Forum

Matthew Desmond made the claim in Evicted, his powerful work on housing insecurity, that those concerned with alleviating poverty should focus not merely on ensuring that poor people have higher disposable incomes, but on countering the exploitative price gouging that depresses the value of whatever income they have. This suggests the possibility that it might be a worthwhile anti-poverty strategy for courts to use the unconscionability doctrine to regulate exploitative contracts.

Three main issues follow from considering this possibility: (1) Do the poor actually pay more for goods of the same quality? (2) If they indeed pay more, do …

Critical Race Theory: Counter-Storytelling The Case Of ‘Old Frank’ And The Daniel Family Cemetery, Mark C. Grafenreed

SMU Law Review Forum

The Texas Historical Commission (“THC”), a legislatively enacted agency of the State of Texas, has erected and disseminated nearly 17,000 historical markers across the state’s vast 268,596 square miles and 254 counties with one express purpose: “To protect and preserve the state’s historic and prehistoric resources for the use, education, enjoyment, and economic benefit of present and future generations.” Unfortunately, the histories of both the United States and Texas are under siege. Politically charged and fear driven constituents have fully devoted their collective time, energy, and financial resources to destroying the perceived new boogeyman, Critical Race Theory (“CRT”). Since January …

Moore, The Sixteenth Amendment, And The Underpinnings Of The Deemed Repatriation Provision, Christopher H. Hanna

SMU Law Review Forum

In Moore v. United States, the U.S. Supreme Court will consider a rare Sixteenth Amendment case. On its face, the case deals with deemed repatriation, a discrete provision of the 2017 Tax Cuts and Jobs Act that included in income past accumulated earnings held abroad. This short Article seeks to contextualize the deemed repatriation provision in terms of why it was passed and how it comports with principles underlying the U.S. tax code. Drawing on firsthand experience researching and drafting the Tax Cuts and Jobs Act, the Article shows the analysis that went into enacting the provision, focusing on …

Redefining “No Evidence Of A Breach” In Election Security, Yunsieg P. Kim

SMU Law Review Forum

For legal purposes, we rightly understand the lack of evidence to mean a lack of existence. For example, many candidates in the 2022 elections baselessly claimed that the 2020 presidential election was stolen. But, absent evidence of systemic fraud, the law correctly determines that President Biden was duly elected. If the law entertained any outlandish assertion regardless of evidentiary support, accusers could peddle whatever claims they please, forcing the accused to disprove them. Similar to the legal understanding of “no evidence,” many appear to believe that no evidence of a security breach in our voting equipment indicates no breach. For …

Confirm Judge Irma Carrillo Ramirez To The Fifth Circuit, Carl W. Tobias

SMU Law Review Forum

The United States Senate must expeditiously confirm United States District Court for the Northern District of Texas Magistrate Judge Irma Carrillo Ramirez, who has definitely earned appointment to the United States Court of Appeals for the Fifth Circuit and will become the appellate court’s initial Latina member. This regional circuit effectively resolves substantial appeals, enjoys a large judicial complement, and certainly possesses a reputation as the nation’s most conservative appellate court. Ramirez, whom President Joe Biden nominated in mid-April, decidedly provides remarkable gender, experiential, ideological, and ethnic judicial diversity and has rigorously served as a Magistrate Judge and Assistant United …

Chatgpt And Works Scholarly: Best Practices And Legal Pitfalls In Writing With Ai, Bill Tomlinson, Andrew W. Torrance, Rebecca W. Black

SMU Law Review Forum

Recent advances in artificial intelligence (AI) have raised questions about whether the use of AI is appropriate and legal in various professional contexts. Here, we present a perspective on how scholars may approach writing in conjunction with AI and offer approaches to evaluating whether or not such AI-writing violates copyright or falls within the safe harbor of fair use. We present a set of best practices for standard of care with regard to plagiarism, copyright, and fair use. As AI is likely to grow more capable in the coming years, it is appropriate to begin integrating AI into scholarly writing …

"With All Deliberate Speed": The Ironic Demise Of (And Hope For) Affirmative Action, Vinay Harpalani

SMU Law Review Forum

This Essay examines the history of affirmative action, the recent Supreme Court oral arguments in the cases of SFFA v. Harvard and SFFA v. UNC Chapel Hill, the perspective of each individual Justice on these cases, and the prospects for the Court’s rulings. It frames these issues around the irony of Brown v. Board of Education II (1955), where the U.S. Supreme Court ordered that school desegregation occur “with all deliberate speed.” Many critical commentators view this ironic phrase as a signal to Southern states to resist desegregation, even as it literally seemed to embody urgency. This Essay argues …

Reforging The Master’S Tools: Critical Race Theory In The First-Year Curriculum, Benjamin M. Gerzik

SMU Law Review Forum

This Article examines why and how critical race theory (CRT) should be taught as a mandatory component of the first-year law school curriculum. Learning the fundamentals of critical race theory is not only important to empathetically understand and serve those around you, but necessary to understand the law as it is. The law’s past and future require this. This Article first makes the positive argument for critical race theory’s necessity in legal education, showing that it rises above normative (albeit virtuous) justifications. It then briefly summarizes what critical race theory is by outlining its central tenets, as well as what …

Prepublication Publications, Gregory Scott Crespi

SMU Law Review Forum

Many law professors now post essentially complete drafts of their articles on SSRN and/or on university-sponsored working paper websites prior to submitting those articles for journal review and possible publication. This “prepublication publication,” so to speak, is useful for both authors and their readers, but it raises some self-plagiarism issues. There does not yet appear to be a broad consensus among journal editors on how those issues should be addressed. I argue that this increasingly common practice of SSRN and working paper prepublication of articles prior to their submission for journal review should be recognized as entirely appropriate, particularly if …

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 …

How Should The Statute Of Frauds Apply To Reliance-Based Contracts?, Gregory Scott Crespi

SMU Law Review Forum

The “sufficient writing” requirements of the Statute of Frauds were formulated with bargain-based contracts in mind. It is often difficult if not impossible for persons to meet those requirements for reliance-based contracts, since this would require them to produce a writing signed by the promisor that not only sufficiently evidenced the promise, but also provided sufficient evidence of the other elements of such reliance-based contracts: the foreseeability of their subsequent reliance upon the promise, the fact of their reliance, and that failure to enforce the promise would be unjust.

There are several ways that courts can avoid the harsh results …

“Firm Offers” Under Ucc Section 2-205 Should Be Treated The Same Way As Are Offers Included In Option Contracts, Gregory Scott Crespi

SMU Law Review Forum

“Firm offers” under Section 2-205 of the Uniform Commercial Code are irrevocable for a period of time in accordance with the terms of that provision. But should those statutorily irrevocable offers be treated the same way as offers that are included in option contracts, and that are thereby contractually irrevocable, for the application of the “death or legal disability of the offeror” doctrine, or the “rejection or counteroffer” rules, or the “mailbox rule”? Or should firm offers be treated in a different fashion, as are offers not included in option contracts, for those purposes? This article argues that firm offers …

Law Firm Dynamics: Don’T Hate The Player, Hate The Game, Tom Kimbrough

SMU Law Review Forum

This paper concerns the business of law, a subject ignored by legal academia and sugarcoated by the organized bar. If law professors express little or no interest in this subject, their students most certainly do. Indeed, I have found that students are desperately hungry for information on the day-to-day realities of working in a law firm. Students are especially keen to learn about possible paths for career advancement within firms, across them, or across the organizations served by the firms.

Paths for career advancement do exist, but they are not easy to find or pursue. Law firms are hardly going …

Corpus Linguistics Criticisms Of Heller Misuse Corpus Linguistics, Michael Showalter

SMU Law Review Forum

A number of linguistics experts have asserted that new corpus-linguistics evidence undermines the U.S. Supreme Court’s conclusion in District of Columbia v. Heller that the Second Amendment phrase keep and bear arms means to possess and carry weapons. At the time of ratification, the term bear arms carried both an idiomatic sense meaning “to serve as a soldier” and a literal sense meaning “to carry weapons.” The Heller majority concluded that the Second Amendment uses the literal sense, partly because the idiomatic reading has the absurd implication of causing the Amendment to protect a right to serve as a soldier. …

Equal Protection And Scarce Therapies: The Role Of Race, Sex, And Other Protected Classifications, Govind Persad

SMU Law Review Forum

The allocation of scarce medical treatments, such as antivirals and antibody therapies for COVID-19 patients, has important legal dimensions. This Essay examines a currently debated issue: how will courts view the consideration of characteristics shielded by equal protection law, such as race, sex, age, health, and even vaccination status, in allocation? Part II explains the application of strict scrutiny to allocation criteria that consider individual race, which have been recently debated, and concludes that such criteria are unlikely to succeed under present Supreme Court precedent. Part III analyzes the use of sex-based therapy allocation criteria, which are also in current …

The "Divisive Concepts" Laws And Americans Of Asian Descent, Ilhyung Lee

SMU Law Review Forum

In the past year, a number of states have enacted laws that prohibit public schools from teaching certain lessons about race. The main target of these laws appears to be “critical race theory,” once a theory advanced in legal academia that has now become a “catchall term” for discussions of race and racism. The states mean business and seek to enforce their new or proposed laws by prohibiting state funding for teaching the banned content, withholding funding to local educational agencies or schools in violation, subjecting offending teachers to disciplinary action, and allowing those aggrieved to bring an action at …

Reproductive Originalism: Why The Fourteenth Amendment's Original Meaning Protects The Right To Abortion, David H. Gans

SMU Law Review Forum

The conventional wisdom among conservative originalists is that Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey are abominable rulings unmoored from the text and history of the Constitution. In the eyes of conservative originalists, the Supreme Court created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text.

These so-called originalists are deeply misguided. As this Essay shows, the text and history of the Fourteenth Amendment, in fact, protect unenumerated fundamental rights, including rights to bodily integrity, to marry and have a family, and to reproductive liberty. The right to …

Judging Biden, John P. Collins Jr.

SMU Law Review Forum

It would have been easy for President Joe Biden to approach judicial appointments (and, particularly, circuit court appointments) the same way as the Administration he served as Vice President. Like President Obama, President Biden inherited a country in turmoil. A deadly pandemic had killed nearly 400,000 Americans. Necessary quarantine orders shuttered schools and businesses, and ground the economy to a halt. Partisan tensions were still raging, culminating in the violent storming of the Capitol by right-wing insurrectionists. People needed the vaccine, economic relief, and a return to some semblance of normalcy. Also, like President Obama (and thanks to President Trump), …

The Decline Of Natural Law And The Rise Of Exclusive Positivism, Bill Watson

SMU Law Review Forum

Stuart Banner’s The Decline of Natural Law: How American Lawyers Once Used Natural Law and Why They Stopped addresses a “fundamental change in American legal thought that took place in the late 19th and early 20th centuries.” Prior to this change, lawyers routinely relied on natural law in their arguments, and judges took those arguments seriously. Natural law gave judges “a reservoir of principles. . .to draw upon” in cases that positive law could not cleanly resolve, which made it easy to see judges as discovering law in those cases. After the change, however, natural law dropped out of the …

Dislike: Facebook's Anticompetitive Monopoly On Social Media And Why U.S. Antitrust Laws Must Adapt To The Technological Era, Elizabeth I. Nielson

SMU Law Review Forum

Although Facebook started as a way to connect with college classmates, it has grown into one of the largest technology companies in the world. Facebook is no longer solely a way to connect with classmates. Instead, it is the powerhouse of social networks and dominates the online advertising business. Facebook has grown at an unprecedented rate—acquiring businesses and gathering users’ privacy along the way—partially because of the failure of U.S. antitrust laws to adequately protect against anticompetitive and monopolistic behavior in the technological arena.

Historically, antitrust laws have used the consumer welfare standard to determine if entities are engaging in …

Post-Pandemic Recommendations: Covid-19 Continuity Of Court Operations During A Public Health Emergency Workgroup, Honorable Samuel A. Thumma, Marcus W. Reinkensmeyer

SMU Law Review Forum

In this report, the COVID-19 Continuity of Court Operations During a Public Health Emergency Workgroup (Plan B Workgroup) makes recommendations about best practices and technologies that should be retained or adapted post-pandemic. The recommendations in this final Plan B Workgroup whitepaper are based on experience and feedback from Arizona’s courts addressing pandemic and post-pandemic practices. Although the original report, issued on June 2, 2021, included a May 2021 Survey of Arizona’s Courts, this updated report also includes information from a July 2021 State Bar of Arizona Survey and a September 2021 State of Arizona Public Opinion Survey addressing those practices. …

The Nonracist And Antiracist History Of Firearms Public Carry Regulation, Mark A. Frassetto

SMU Law Review Forum

This term, the Supreme Court will consider New York State Rifle & Pistol Ass’n v. Bruen, a Second Amendment challenge to New York State’s concealed carry weapon licensing system. Bruen is the first major Second Amendment case that the Court will decide on the merits in more than a decade. Briefing by the plaintiffs and gun rights scholars has in large part focused on arguments that laws regulating the carrying of guns in public, as well as gun regulation more generally, were historically intended to discriminate against minority groups. This argument is consistent with a broader effort in the conservative …

A "Second-Class Right" For "Second-Class Citizens", Benjamin A. Rice

SMU Law Review Forum

In McDonald v. City of Chicago, the Supreme Court countenanced against treating the Second Amendment as a “second-class right.” Against this admonition, congressional defunding of federal restorative programs has rendered the amendment a second-class right for an ever-increasing and much-maligned group of people: those who have been adjudicated as mentally ill. In a majority of states, those who have been involuntarily committed at any point in their lives to a mental health institution lose the right to bear arms for life. Taking guns out of the hands of those who have enjoyed decades of good mental health after a brief …

How To Do Surgery On The Constitutional Law Of Libel, R. George Wright

SMU Law Review Forum

Of late, the constitutional law of libel has become the focus of increasing dissatisfaction. This dissatisfaction has taken various forms. The argument below, however, is that the most crucial defect of constitutional libel law lies in the Court’s continuing attempts to draw and utilize distinctions among public figure and private figure libel plaintiffs. The Court should abandon these attempts. Instead, the Court should attend, broadly and fundamentally, to the constitutionally vital distinction between libelous speech that does or does not address some matter of public interest and concern.

The argument below first emphasizes the constitutional logic underlying the Court’s initial …

Suing Texas State Senate Bill 8 Plaintiffs Under Federal Law For Violations Of Constitutional Rights, Anthony J. Colangelo

SMU Law Review Forum

Many people are deriding (or celebrating) the exceptional—and exceptionally deceptive—device of the Texas legislature to so-called “deputize” private individuals as government enforcement agents to carry out a state anti-abortion law that, at present, violates the U.S. Constitution. The law at issue, commonly referred to as Senate Bill 8, is extraordinarily broad, and provides that anyone can sue anyone who “aids or abets” an abortion after about six weeks of pregnancy (including, if read literally, the Uber driver who drove the woman to the clinic). The law awards recovery of no less than $10,000 and makes no exceptions for pregnancies resulting …

Texas, Abortion, And State Action, Alexander J. Lindvall

SMU Law Review Forum

The Texas Legislature recently passed what the Supreme Court describes as an “unprecedented” statutory scheme. Texas’s new law allows private, everyday citizens to sue anyone who assists a woman in obtaining an abortion after her sixth week of pregnancy. It’s clear that Texas chose this unusual enforcement mechanism to try to circumvent the Constitution’s “state action” requirement. Before a plaintiff can challenge a policy or action on constitutional grounds, they must show that the government somehow had a hand in causing their harm. But this Texas law strips the government of its enforcement power and instead gives it to everyday …

School Police Reform: A Public Health Imperative, Thalia González, Emma Kaeser

SMU Law Review Forum

Out of the twin pandemics currently gripping the United States­—deaths of unarmed Black victims at the hands of police and racialized health inequities resulting from COVID-19—an antiracist health equity agenda has emerged that identifies racism as a public health crisis. Likewise, calls for reform of school policing by those advocating for civil rights, racial justice, and Black Lives Matter have simultaneously intensified. Yet each remains siloed, despite the natural connection and implicit overlap between these separate movements and debates. Indeed, there are documented negative health effects of school policing for Black, Indigenous, people of color (BIPOC) youth. But these have …

The Texas Legislature Has Significantly Broadened The Statute Governing Recovery Of Attorney's Fees In Breach Of Contract Cases, Gregory Scott Crespi, West Menefee Bakke

SMU Law Review Forum

Texas recently enacted amendments that significantly expand the scope of section 38.001 of the Texas Civil Practice & Remedies Code, a statute that awards attorney’s fees to successful claimants in breach of contract cases. Under the new amendments, which take effect September 1, 2021, the prevailing party may recover reasonable attorney’s fees from most forms of business organizations, including partnerships and limited liability companies—not just from individuals and corporations, as the statute previously provided. And although there has been some confusion on this point, the amended statute continues to protect governments and governmental agencies from attorney’s fees liability. Additionally, the …