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The Quad (The 2010 Alumni Magazine), Southern Methodist University, Dedman School Of Law

The Quad (Law Alumni Magazine), 1988-present

• The Luxembourg Supreme Court Summit
• Rule of Law Forum: Indonesia
• International Summit on the Law and Business of Video Games
• Methods of Interpretation: How the Supreme Court Reads the Constitution
• Stanford/Yale Junior Faculty Forum

Fred Moss, The Law School's Unsung Hero, C. Paul Rogers Iii

SMU Law Review

No abstract provided.

Abstention: The Unexpected Power Of Withholding Your Vote, Grant M. Hayden

Faculty Journal Articles and Book Chapters

This Article examines the effect of abstentions on the outcome of votes. Scholars (and voters) operate under two basic assumptions about the nature of abstention. First, they assume that an abstention affects all alternatives in equal measure. Second, and relatedly, people assume that a voter’s preferred alternative will be less likely to win if that voter abstains (and, of course, more likely to win if she votes). Removing the potential full support of a vote and replacing it with the fifty-fifty proposition of an abstention should hurt the chances of a voter’s preferred alternative. These two assumptions guide the thinking …

Conflict Of Laws, James P. George, Stephanie K. Marshall, Wm. Frank Carroll

SMU Law Review

No abstract provided.

A Hole In The Need Of Mending: Copyright And The Individual Marking Of Advertisements Published In Collective Works, Randy Gordon

SMU Science and Technology Law Review

No abstract provided.

The Work Praises The Man - An Irish Proverb: A Tribute To Professor Frederick Moss, Linda S. Eads

SMU Law Review

No abstract provided.

Regis W. Campfield: Friend And Colleague, Christopher H. Hanna

SMU Law Review

No abstract provided.

Regis W. Campfield: Colleague, Mentor, And Friend, Joshua C. Tate

SMU Law Review

No abstract provided.

Freedom Of Speech And The Catch-22 For Public Employees In The Ninth Circuit - Huppert V. City Of Pittsburg, Jody L. Rodenberg

SMU Law Review

No abstract provided.

Health Care Law, Thomas Wm. Mayo, Hallie Elizabeth Graves

SMU Law Review

The past Survey year was one of incremental change in the health-law arena. As usual in odd-numbered years, the most significant change in law came out of the Texas legislature, although the agencies and Texas Supreme Court made their own notable contributions, particularly with respect to telemedicine, hospital districts’ liability for indigent health care, and the use of physician extenders.

Every two years the legislature spends six months considering hundreds upon hundreds of bills dealing with public health, health care providers of every type, patient issues, and taxation and liability rules that shape the delivery of health care services within …

The Non-Musical Career Of Fred Moss: A Precis, William J. Bridge

SMU Law Review

No abstract provided.

Professor Frederick C. Moss, Or, The Education Of A Junior Colleague, Jeffrey D. Kahn

SMU Law Review

No abstract provided.

Further Reflections On Post-Realist Legal Scholarship And Teaching: A Brief Response To Professor Scordato, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

In this article, the author scrutinizes Professor Marin Roger Scordato’s recommendations regarding legal scholarship and teaching in the post-realist era. The author takes issue with some of Scordato’s recommendations on how to resolve the tension between instrumentalism and formalist legal discourse. Rather than devoting the bulk of their instruction to conventional doctrines and formalist analysis, the author suggests that instrumentalist law professors give greater relative emphasis to instrumentalist critiques.

A Review Of Negotiating Justice: Progressive Lawyering, Low Income Clients, And The Quest For Social Change, Lolita Buckner Inniss

Faculty Journal Articles and Book Chapters

No abstract provided.

Square Peg In A Round Hole: Government Contractor Battlefield Tort Liability And The Political Question Doctrine, Chris Jenks

Faculty Journal Articles and Book Chapters

Recent assertions of the political question doctrine by battlefield contractor defendants in tort litigation have brought new life to the doctrine while raising new questions. The lawsuits stem from incidents in both Iraq and Afghanistan and include plaintiffs ranging from local nationals suing contract interrogators and interpreters, to contract employees suing another contractor following insurgent attacks, to U.S. service members suing contractors after vehicle and airplane crashes. The lawsuits involve tort claims, which on their face do not conjure up images of a constitutional power struggle, but in at least fifteen cases thus far contractor defendants have asserted the political …

Ramifications Of Joint Infringement Theory On Emerging Technology Patents, W. Keith Robinson

Faculty Journal Articles and Book Chapters

Two cases decided by the U.S. Court of Appeals for the Federal Circuit articulate the standards for joint infringement. In BMC Resources, Inc. v. Paymentech, L.P., the court ruled that to find liability in situations where steps of a method claim are performed by multiple parties, the entire method must be performed at the control or direction of the alleged direct infringer — the mastermind. Approximately one year later, in Muniauction, Inc. v. Thomson Corp., the Federal Circuit clarified that “the control or direction standard is satisfied in situations where the law would traditionally hold the accused direct infringer vicariously …

Blurring The Lines Between Pleading Doctrines: The Enhanced Rule 8(A)(2) Plausibility Pleading Standard Converges With The Heightened Fraud Pleading Standards Under Rule 9(B) And The Pslra, Marc I. Steinberg, Diego E. Gomez-Cornejo

Faculty Journal Articles and Book Chapters

This article focuses on the Supreme Court’s recent enhancement of Rule 8(a)(2)’s pleading standard to approach the heightened fraud pleading standards under Rule 9(b) and the PSLRA. The authors posit that the introduction of a tacit “probability requirement” into the basic pleading standard impedes the heightened fraud pleading standards under Rule 9(b) and the PSLRA from fulfilling the policy rationales for which they were created. By elevating the basic requirements that must be met in any federal civil case for a complaint to be legally sufficient, the Supreme Court has caused an evident convergence of pleading standards that blurs the …

The Future Of Oil And Gas Law, John S. Lowe

Faculty Journal Articles and Book Chapters

Author’s thesis is simple: Oil and gas jurisprudence has a bright future. We live in a hydrocarbons world, and our economic system is not going to change dramatically overnight; we will continue to live in a world powered and heated by hydrocarbons for at least the next twenty years. In fact, world demand for oil and gas is likely to increase substantially. From the turn of the twenty-first century until mid-2008, the world watched as oil prices first inched upwards and then surged. The high energy costs that energized us until a year and a half ago (and that appear …

A Critical Legal Rhetoric Approach To In Re African-American Slave Descendants Litigation, Lolita Buckner Inniss

Faculty Journal Articles and Book Chapters

No abstract provided.

Judging Cruelty, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

he wisdom of the death penalty has recently come under attack in a number of states. This raises the question of whether states’ retreat from the death penalty, or other punishments, will pressure other states - either politically or constitutionally - to similarly abandon the punishment. Politically, states may succumb to the trend of discontinuing a punishment. Constitutionally, states may be forced to surrender the punishment if it is considered cruel, and, as a result of a large number of states renouncing it, the punishment also becomes unusual. If a punishment is thus found to be both cruel and unusual, …

Does The Eighth Amendment Punishments Clause Prohibit Only Punishments That Are Both Cruel And Unusual, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

There is a great struggle in the United States between proponents of the death penalty and death penalty abolitionists who believe that the practice is cruel and even unconstitutional. Although the punishment of death is enshrined in the Fifth and Fourteenth Amendments of the Constitution, the Supreme Court seems to have followed its moral compass in chipping away at the death penalty because of the cruelty of the practice. The Court's struggle between the text of the Constitution and its moral inclinations in the death penalty context has resulted in an inconsistent and confusing Eighth Amendment Punishments Clause jurisprudence. While …

Zoya's Standing Problem, Or, When Should The Constitution Follow The Flag?, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

Some federal courts have devised a new test of prudential standing that they use to dismiss suits filed by foreign plaintiffs alleging unlawful conduct by American officials abroad, even when these cases involve matters that may have nothing to do with foreign affairs, national security, or terrorism. Rather than decide the case on its merits or dismiss it on any number of legitimate grounds, the complaint is dismissed because the plaintiff lacks a “prior substantial connection” to the United States.

I identify and critique this strange but proliferating test of standing. First, it is inconsistent with any theoretical view of …

Ten Questions On National Security, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

This essay was written in response to an invitation by the editors of the William Mitchell Journal of the National Security Forum to answer one or more of ten questions concerning national security law and policy. This essay provides the author's answer to the question: "Would President Obama have the authority to hold a United States citizen without charge in a military brig for six months if that citizen - who lives in Minnesota - is suspected of links to al Qaeda following a one-month trip to Somalia?"

No-Limit Texas Hold 'Em, Or, The Voir Dire In Dallas County, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

Voir dire is Law French for “to speak the truth.” In the United States and a few other common-law countries that still use juries, the term describes the process of selecting jurors who will hear the evidence presented at trial, render a verdict, and sometimes determine punishment. The translation suggests a search for jurors who can render a fair and impartial verdict. Attorneys try to discover and remove jurors who seem unable or unlikely to speak the truth, such as those who nurture irrational prejudices or harbor private grievances.

In most federal courts, the judge is the primary conduit for …

The Endogeniety Problem In Cost-Benefit Analysis, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

Cost-benefit analysis, an important technique in American public sector decision-making, is used to assess policies through aggregating the estimated willingness to pay of the affected persons to enjoy the benefits or avoid the burdens of those policies. Such analyses are generally based on the implicit simplifying assumptions that both the preferences of existing persons and the genetic identities of the persons who will comprise future generations are exogenous with respect to that policy. If, however, some persons’ preferences are endogenous in that they are altered by a policy, which is often the case, then this exogenous preferences assumption will introduce …

How Recognizing The Endogeneity Of Identity Renders The Discounting Debate Largely Irrelevant, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

Many social policies require the substantial commitment of resources in order to provide benefits for future generations. Conventional policy assessment by the usual willingness to pay valuation criterion raises the issues of whether the future benefits of a policy should first be discounted to a smaller present value before comparison with its current costs in order to assess its merits, and if so then what discount rate should be utilized for these calculations. There is, however, less at stake in this debate than the partisans on either side commonly realize. This is because of the failure of policy analysts to …

Recalibrating The Legal Risks Of Cross-Border Health Care, Nathan Cortez

Faculty Journal Articles and Book Chapters

The nascent scholarship surrounding "medical tourism" assumes, without much scrutiny, that foreign jurisdictions provide few legal remedies to patients, instead focusing on whether U.S. patients can sue in U.S. courts. This article tests that assumption by examining whether patients might recover adequate compensation not only in the United States, but in four common destinations: India, Thailand, Singapore, and Mexico. I analyze how each jurisdiction handles medical malpractice complaints and discuss the unique obstacles patients might face when navigating each of these systems. I conclude that U.S. patients will struggle to recover remotely adequate compensation in each of these jurisdictions. This …

Introductory Note To European Court Of Human Rights (Grand Chamber): Varnava And Others V. Turkey, Chris Jenks

Faculty Journal Articles and Book Chapters

This note introduces a Grand Chamber of the European Court of Human Rights decision which explains the application of the European Convention on Human Rights and Fundamental Freedoms on disappearances stemming from armed conflict. The Varnava judgment is particularly instructive on the balance of competing tensions; the unique aspects of disappearances; failure to investigate as a continuous violation; and applicant’s obligations under the Convention to exhaust domestic remedies and timely petition the Court.

Correspondents' Reports: A Guide To State Practice In The Field Of International Humanitarian Law, Chris Jenks

Faculty Journal Articles and Book Chapters

This correspondent report compiles examples of where and how the United States demonstrated its compliance with international humanitarian law by prosecuting its service members in 2010.

A Prolonged Slump For ‘Plaintiff-Pitchers’: The Narrow ‘Strike Zone’ For Securities Plaintiffs In The Fourth Circuit, Marc I. Steinberg, Dustin Appel

Faculty Journal Articles and Book Chapters

This article focuses on the narrow “strike zone” that plaintiffs must overcome in private securities actions instituted in the Fourth Circuit. Based on empirical data generated over a fourteen-year span, there emerges a clear finding that during that time period defendants were victorious in almost all cases, either on the merits of the case or due to procedural obstacles. The authors posit that this pattern of difficulty for plaintiffs arises, at least in part, from the Fourth Circuit’s restrictive interpretation of various requisite elements of these causes of action, such as materiality and scienter, as well as the Fourth Circuit’s …