Law Commons^™

International Contracts, Luana Lo Piccolo, Maurizio Gardenal, Samuel G. Wieczorek, Willem Den Hertog, Anders Forkman

The Year in Review

No abstract provided.

International Antitrust, Miguel Del Pino, Elizabeth Avery, Dilys Teng, Bruno Drago, Daniel Andreoli, Fabianna Morselli, Paola Pugliese, Milena Mundim, Adam S. Goodman, Simon Kupi, Peter J. Wang, Yizhe Zhang, Peter Camesasca, Laurie-Anne Grelier, Naval Satarawala Chopra, Aman Singh Sethi, Shigeyoshi Ezaki, Vassili Moussis, Kiyoko Yagami, Naoki Uemura, Youngjin Jung, Hemi Lee, Maria Hajiyerou, Lara Granville, Lisl Dunlop

The Year in Review

No abstract provided.

Export Controls And Economic Sanctions, John Boscariol, Patrick Briscoe, Jamie Brown, Sylvia Costelloe, Abigail Cotterill, Geoffrey Goodale, Timothy O'Toole, Jason Prince, Christopher Stagg, Lawrence Ward

The Year in Review

No abstract provided.

Customs Law, Laura Fraedrich, Lawrence W. Hanson, Jennifer Horvath, Eduardo Gavito Diaz, Geoffrey M. Goodale, George R. Tuttle Iii

The Year in Review

No abstract provided.

Introduction, Jason Scott Palmer, Kimberly Y.W. Holst

The Year in Review

No abstract provided.

Front Matter

The Year in Review

No abstract provided.

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 …

Front Matter

SMU Law Review

No abstract provided.

Reversing Grutter, Lackland H. Bloom Jr.

SMU Law Review

In 2023, the Supreme Court modified its 2003 decision in Grutter v. Bollinger. That decision had allowed colleges, graduate schools, and professional schools to explicitly consider race in the admissions process. In two cases decided together, Students for Fair Admissions v. Harvard University and University of North Carolina, a 6–3 majority of the Court held that colleges could not employ a general racial preference but could take account of how race affected the specific applicant. The decision was based on the Court’s understanding of the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act …

The Post-Racial Deception Of The Roberts Court, Cedric M. Powell

SMU Law Review

Students for Fair Admissions v. Harvard/UNC (SFFA) is a post-racial deception unmoored from precedent and societal reality. SFFA deceives the polity and signals an all out assault on anti-discrimination law. To preserve its institutional legitimacy, the Roberts Court promotes doctrinal and conceptual distortions—post-racial deceptions of cognizable injuries advanced through reverse discrimination claims of white plaintiffs; racial proxy claims of discrimination proffered by Asian-Americans; and the fairness rationale of the Court’s circular post-racial edict that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Chief Justice Roberts’s majority opinion discards the …

Individual Dignity As The Foundation Of An Inclusive Society, Cory R. Liu, Anthony Pericolo

SMU Law Review

In Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, the Supreme Court considered voluminous evidence that Harvard discriminated against Asian Americans to keep the racial composition of its student body similar year after year. The Court held that Harvard engaged in unlawful discrimination, providing clarity to an area of the law that was filled with ambiguities and self-contradictions. The Court’s decision made clear that discrimination in favor of some racial groups necessarily inflicts discriminatory, race-based harms on others.

This Article explores how Fair Admissions sheds light on the failure of identity politics to create a genuinely …

Route Competition In Hong Kong, Yizhang Qiu, Sinchit Lai

Journal of Air Law and Commerce

Open sky policies have been implemented for decades, giving birth to many airline newcomers from diverse backgrounds lifting off into liberalized skies. EasyJet, Ryanair, Wizz Air, and Southwest Airlines are examples of independent budget airlines, branding the outcome of aviation liberalization and contributing to interoute competition through their networks. However, Hong Kong International Airport, which aspires to be a better and greater air hub, is crowded with local carriers, and the airport flight timetables rarely show the presence of non-local budget airlines or competing routes. This Article examines the importance of interoute competition and the role that budget airlines play …

Book-And-Claim System For Sustainable Aviation Fuels, Christine Kranich, Sarah J. Haas

Journal of Air Law and Commerce

This Article provides an overview of the regulatory (legal) framework in which the decarbonisation of aviation is embedded, with a focus on European law. The Article further provides updates on EU-ETS, CORISA, RED III and the minimum quota of SAF supply in accordance with Refuel EU Aviation up to October 2023. Sustainable Aviation Fuels (SAF) will be described in detail in this Article, and it is further explained that the use of SAF could significantly contribute to aviation becoming “greener”. As the availability of SAF is still rather scarce, the Article revolves around a mechanism of a global book-and-claim system …

Students For Fair Admissions Through The Lens Of Interest-Convergence Theory: Reality, Perception, And Fear, Robert A. Garda Jr.

SMU Law Review

In two cases, Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina (SFFA), the Supreme Court held that Harvard and UNC violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act in their use of race in their admissions process. This Article examines the SFFA decision through the lens of interest-convergence theory.

This Article is novel in three respects. It is the first article to explain the SFFA decision in-depth. The opaqueness of the decision has led to significant …

Students For Fair Admissions V. Universities For Division, Exclusion, And Inequity: The Petitions, The Arguments, And The Decision, Josh Blackman

SMU Law Review

Students for Fair Admissions v. Harvard (SFFA) will be studied by law students for generations, in much the same way that Bakke and Grutter were studied before. But there is much more to SFFA than the final decisions about Harvard University and the University of North Carolina will reveal. This Article, published for a symposium by the SMU Law Review, focuses on three stages of the litigation: the petitions, the oral arguments, and the decision. Part I recounts the complex procedural history, which began in federal courts in Massachusetts and North Carolina. The Harvard case reached the Supreme Court first, …

Racial Classifications In Higher Education Admissions Before And After Sffa, David E. Bernstein

SMU Law Review

Hundreds of law review articles have discussed the legality of affirmative action programs. Virtually all of them begin with the implicit assumption that the racial classifications used in these programs are legitimate and uncontroversial (an assumption I challenge in my 2022 book, Classified: The Untold Story of Racial Classifications In America). That assumption has been undermined by Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (“SFFA”).

Chief Justice Roberts, writing for a 6–3 majority, asserted that the underlying classifications are “imprecise in many ways” and “opaque.” He quoted Justice Gorsuch’s concurring opinion, which criticized the classifications …

Data’S Demise And The Rhetoric Of Sffa, Shakira Pleasant

SMU Law Review

The Supreme Court’s holding that Harvard College’s and the University of North Carolina’s (UNC) “admissions systems” are invalid under the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964 was an anticipated result. The Court’s 2016 decision in Fisher v. University of Texas at Austin (Fisher II), left some speculation that race-conscious admissions could eventually be struck down by the Court; however, Fisher II also offered some guidance for future litigants to address challenges. Colleges and universities needed to use data to “scrutinize the fairness of their admissions programs” to satisfy the …

Preface: An Homage, Elan Wilson

SMU Law Review

No abstract provided.

Roberts Rules Of (Dis)Order: Doctrinal Doublespeak On Affirmative Action And Stare Decisis, Vinay Harpalani

SMU Law Review

In this Article, I argue that Chief Justice John Roberts engaged in doublespeak in his SFFA v. Harvard/UNC majority opinion. He essentially overruled Grutter v. Bollinger (2003) but did not admit doing so, and even structured the SFFA opinion as if he was following Grutter’s precedent. My Article considers why Chief Justice Roberts engaged in this “stealth overruling” of Grutter and exposes his doctrinal sleight of hand in doing so. I first consider how Chief Justice Roberts may have been concerned about the Court’s legitimacy in the wake of its ruling in Dobbs v. Jackson Women’s Health Organization (2022)—where it …

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 …

Front Matter

Journal of Air Law and Commerce

No abstract provided.

Tort Claims Arising From Military Aircraft Crashes Are Not Preempted By The Federal Aviation Act, Timothy A. Loranger, Crawford Appleby

Journal of Air Law and Commerce

The Second Circuit's landmark ruling in Jones v. Goodrich Pump & Engine Control Sys., Inc. establishes crucial precedent by asserting that tort claims stemming from military aircraft crashes are not field or conflict preempted by the Federal Aviation Act (the Act). This decision, the first of its kind at the appellate level, carries far-reaching implications. The court’s rationale, grounded in the Act’s plain language, emphasizes that “public aircraft,” including military ones, are exempt from Federal Aviation Administration regulation. Title 49, section 44701(a)(1), explicitly excludes public aircraft from the Act’s purview. While the court’s analysis relies on the Act’s text, it …

Asset-Based Financing For Space Activities, Francesca Giannoni-Crystal

Journal of Air Law and Commerce

The space industry—whose numbers are already substantial—has undeniable potential for further growth. However, because it no longer consists of only multibillion-dollar companies, the industry needs access to traditional financing. Venture capital alone is insufficient. This Article discusses some difficulties for the space industry’s access to traditional—and especially asset-based—financing. Some are common to all space activities, while some exist only for novel space activities. These difficulties cover a broad range of legal, regulatory, and factual issues (including insurance). While the problems are difficult, ideas to solve them are plentiful, a number of which the paper discusses. The paper also presents ways …

Space Mining, Isabelle M. Thibault

Journal of Air Law and Commerce

The Outer Space Treaty, the leading source of law for activities in space, has laid out various limitations and regulations regarding actions in space and how space can be used. One of these limitations is commonly referred to as the “non-appropriation principle.” The non-appropriation principle prohibits nations from making claims of sovereignty over celestial bodies in space. This presents a problem as the space industry continues to progress because it causes uncertainty regarding the meaning of appropriation, what is classified as a celestial body, what acts are allowed, and who specifically is prohibited from acting. This Comment identifies these problems …

Race Preferences, Diversity, And Students For Fair Admissions: A New Day, A New Clarity, Maimon Schwarzschild, Gail Heriot

SMU Law Review

This Article traces the legal path to the Supreme Court’s decision in Students for Fair Admissions v. Harvard and the University of North Carolina (2023), from the famous Bakke case in 1978 to the Grutter decision twenty-five years later. It reviews the shifting fortunes of the “diversity” rationale for racial preferences in higher education and assesses the widening—rather than narrowing—gulf between the Court’s majority and the dissenting Justices on the issue of racial preferences.

After half a century of closely contested Supreme Court decisions, some of them seeming to point in opposing directions, others relying on fragmented pluralities among the …

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 …