Law Commons^™

Framing Individualized Sentencing For Politics And The Constitution, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

For decades, there was not much growth in the U.S. Supreme Court’s interpretation and application of the Eighth Amendment’s prohibition on cruel and unusual punishments. In recent years, though, the Court has expanded the Amendment’s scope to prohibit executing intellectually disabled and juvenile offenders, to ban capital punishment for all non-homicide offenses against individuals, and to for-bid life-without-parole sentences for juveniles when that punishment was mandatorily imposed or imposed on non-homicide offenders. With changing politics and a changing Court, any further expansion of Eighth Amendment protections will likely be difficult for years to come. With the recent confirmation of Amy …

A Unified Theory Of Code Connected Contracts, Carla L. Reyes

Faculty Journal Articles and Book Chapters

Smart contracts and their promise of automatic performance capture legal and entrepreneurial imaginations. But the excitement around the technology led to some confusing legal responses. Several legal scholars use chronology to help reduce the confusion and place smart contracts within what is already familiar about computational contracting. According to this line of thinking, blockchain-based smart contracts simply represent the next technological advancement in a long history of computable contracting technologies. However, other scholarly work suggests that such a chronological explanation under-simplifies the nature of the linkages between smart contracts and other forms of code-connected contracts. This Article offers a unified …

Autonomous Business Reality, Carla L. Reyes

Faculty Journal Articles and Book Chapters

Society tends to expect technology to do more than it can actually achieve, at a faster pace than it can actually move. The resulting hype cycle infects all forms of discourse around technology. Unfortunately, the discourse on law and technology is no exception to this rule. The resulting discussion is often characterized by two or more positions at opposite ends of the spectrum, such that participants in the discussion speak past each other, rather than to each other. The rich context that sits in the middle ground goes disregarded altogether. This dynamic most recently surfaced in the legal literature regarding …

Facilitating Capital Raising: The Sec’S 2020 Amendments To The Exempt Offering Framework, Marc I. Steinberg, Taylor E. Santori

Faculty Journal Articles and Book Chapters

No abstract provided.

Law Of The Gun: Unrepresentative Cases And Distorted Doctrine, Eric Ruben

Faculty Journal Articles and Book Chapters

There is a familiar saying, “If all you have is a hammer, everything looks like a nail.” The so-called Law of the Hammer takes a distinctive form in adjudication. If all judges see is one repeating fact pattern for a given area of law, they might perceive it as archetypical and build the law around it. If that fact pattern does not accurately reflect the field, however, the result can be analytical distortion in terms of both the choice of doctrine and its implementation.

This Article uses Second Amendment jurisprudence to illustrate this phenomenon. It reveals how District of Columbia …

The Problem Of Gender Inequity: The Legacy Of Deborah Rhode, Joanna Grossman

Faculty Journal Articles and Book Chapters

No abstract provided.

Causation In Civil Rights Legislation, Hillel J. Bavli

Faculty Journal Articles and Book Chapters

Employees are often left unprotected from discrimination because they are unable to satisfy the requirement of causation. Courts have made clear that to obtain legal redress for discrimination, it is generally insufficient to show that a protected characteristic such as race or sex was a “motivating factor” of an adverse employment decision. Rather, under Supreme Court precedent—including the Court’s Comcast and Babb decisions in the 2020 term—the antidiscrimination statutes generally require a showing of “but-for” causation. Consequently, many victims of discrimination will be unable to prevail because an employer can readily refute allegations of discrimination by asserting a legitimate purpose—true …

Covid-19 And Law Teaching: Guidance On Developing An Asynchronous Online Course For Law Students, Yvonne Dutton, Seema Mohapatra

Faculty Journal Articles and Book Chapters

Most law schools suspended their live classroom teaching in March 2020 due to the COVID-19 pandemic and quickly transitioned to online programming. Although professors can be commended for rapidly adapting to an emergency situation, some commentators have nevertheless suggested that the emergency online product delivered to students was substandard. Based on our own experiences in designing and delivering online courses, we caution against embracing a broad-reaching, negative conclusion about the efficacy of online education. Indeed, much of this emergency online programming would be more properly defined as “emergency remote teaching,” as opposed to “online education.” Delivering online education to students …

Creating Cryptolaw For The Uniform Commercial Code, Carla L. Reyes

Faculty Journal Articles and Book Chapters

A contract generally only binds its parties. Security agreements, which create a security interest in specific personal property, stand out as a glaring exception to this rule. Under certain conditions, security interests not only bind the creditor and debtor, but also third-party creditors seeking to lend against the same collateral. To receive this extraordinary benefit, creditors must put the world on notice, usually by filing a financing statement with the state in which the debtor is located. Unfortunately, the Uniform Commercial Code (U.C.C.) Article 9 filing system fails to provide actual notice to interested parties and introduces risk of heavy …

State Energy Cartels, James W. Coleman

Faculty Journal Articles and Book Chapters

Fracking has made America the center of global oil production and the engine of the world’s economy. But haste makes waste. America’s new oil wells are releasing natural gas as well, which is prized as a clean and reliable fuel around the world, but must be simply burned off or “flared” if there are no pipelines to bring it to the customers that need it. The pace of the oil boom, and the challenges of building new pipe-lines have forced oil companies to flare staggering quantities of natural gas. Texas and North Dakota are now flaring—that is, wasting—more gas than …

Exploring The Implications Of Artificial Intelligence, Kristin N. Johnson, Carla L. Reyes

Faculty Journal Articles and Book Chapters

Emerging technologies promise to play a transformative role in our society, enabling driverless cars, enhanced accuracy and efficiency in disease mapping, greater and less expensive access to certain consumer services, including consumer financial services. Discussions regarding the role of emerging technologies increasingly center on the development and integration of artificial intelligence technologies or AI-an assemblage of technologies that rely on a variety of computational techniques. This Essay offers a modest primer outlining a general understanding of the contours and contributions of Al, as well as introducing the articulated benefits and limits

of these technologies.

This Essay examines the increasingly pervasive …

The Perfect Storm: Coronavirus And The Elder Catch, Jessica Dixon Weaver

Faculty Journal Articles and Book Chapters

The global COVID-19 pandemic has exacerbated an already growing phenomenon: the Elder Catch. This term defines the caregiving dilemma faced by adults who are simultaneously working, caring for elder parents or relatives, and in some cases, raising children at the same time. Few scholars have explored how the state uses the traditional family framework to resist providing comprehensive government support for elder care. Women typically bear the brunt of caregiving costs within the family and become physically and mentally vulnerable in the process. COVID-19 has pushed women caught in the Elder Catch to the brink while sheltering at home, and …

Autonomous Corporate Personhood, Carla L. Reyes

Faculty Journal Articles and Book Chapters

Several states have recently changed their business organization law to accommodate autonomous businesses—businesses operated entirely through computer code. A variety of international civil society groups are also actively developing new frameworks— and a model law—for enabling decentralized, autonomous businesses to achieve a corporate or corporate-like status that bestows legal personhood. Meanwhile, various jurisdictions, including the European Union, have considered whether and to what extent artificial intelligence (AI) more broadly should be endowed with personhood to respond to AI’s increasing presence in society. Despite the fairly obvious overlap between the two sets of inquiries, the legal and policy discussions between the …

Cause And Effect In Antidiscrimination Law, Hillel J. Bavli

Faculty Journal Articles and Book Chapters

Standards of causation in antidiscrimination law, and disparate-treatment cases in particular, are deeply flawed. Their defects have caused an illogical, obscure, and unworkable proof scheme that requires an overhaul to curb the harm that it engenders and to allow the antidiscrimination statutes to serve their objectives effectively. This Article proposes a theory and method of causation that achieves this goal. The problem stems from the inadequacies associated with current standards of causation in disparate-treatment cases—the but-for test and the motivating-factor test. The proposed “factorial” approach introduces a causal standard that addresses these inadequacies. It entails three innovations over current causation …

Transparency In Plea Bargaining, Jenia I. Turner

Faculty Journal Articles and Book Chapters

lea bargaining is the dominant method by which our criminal justice system resolves cases. More than 95% of state and federal convictions today are the product of guilty pleas. Yet the practice continues to draw widespread criticism. Critics charge that it is too coercive and leads innocent defendants to plead guilty, that it obscures the true facts in criminal cases and produces overly lenient sentences, and that it enables disparate treatment of similarly situated defendants.

Another feature of plea bargaining — its lack of transparency — has received less attention, but is also concerning. In contrast to the trials it …

Remote Criminal Justice, Jenia I. Turner

Faculty Journal Articles and Book Chapters

The coronavirus pandemic has forced courts to innovate to provide criminal justice while protecting public health. Many have turned to online platforms in order to conduct criminal proceedings without undue delay. The convenience of remote proceedings has led some to advocate for their expanded use after the pandemic is over. To assess the promise and peril of online criminal justice, I surveyed state and federal judges, prosecutors, and defense attorneys across Texas, where virtual proceedings have been employed for a range of criminal proceedings, starting in March 2020. The survey responses were supplemented with direct observations of remote plea hearings …

Playing By The Rule: How Aba Model Rule 8.4(G) Can Regulate Jury Exclusion, Anna Offit

Faculty Journal Articles and Book Chapters

Discrimination during voir dire remains a critical impediment to empaneling juries that reflect the diversity of the United States. While various solutions have been proposed, scholars have largely overlooked ethics rules as an instrument for preventing discriminatory behavior during jury selection. Focusing on the ABA Model Rule 8.4(g), which regulates professional misconduct, this article argues that ethics rules can, under certain conditions, offer an effective deterrent to exclusionary practices among legal actors. Part I examines the specific history, evolution, and application of revised ABA Model Rule 8.4(g). Part II delves into the ways that ethics rules in general, despite their …

Death Of The Particular Social Group, Natalie Nanasi

Faculty Journal Articles and Book Chapters

Applicants seeking asylum in the United States must demonstrate that they fear persecution on account of one of five protected grounds—race, religion, national origin, political opinion, or membership in a particular social group (PSG). The PSG ground has long been the most complex and challenging avenue for relief, and in the Trump era, already precarious protections for vulnerable people such as survivors of intimate partner and gang violence were further impaired.

The Board of Immigration Appeals’ first, and longstanding, definition of a PSG in Matter of Acosta required members to possess “common immutable characteristics,” those that, like the other statutory …

A Comparative Analysis Of Mortgage Loan Assignments And A Call For Reform In The United States, Julia Patterson Forrester Rogers

Faculty Journal Articles and Book Chapters

The flow of capital into mortgage loans depends heavily on the ability to transfer those loans. In the United States, Germany, and other countries, mortgage loans are transferred on the secondary market. A loan originator may sell loans to a purchaser who intends to hold the loans and collect payments or to a third party who will pool the loans and issue mortgage-backed securities to investors.

In the United States, assignments of mortgage loans have created legal challenges and have been the subject of much litigation. The transfer and storage of large volumes of paper promissory notes, still the prevailing …

The Ties That Bind: What Pauli Murray Teaches Us About Race, Family, Slavery, And Inequality, Jessica Dixon Weaver

Faculty Journal Articles and Book Chapters

Pauli Murray is an unsung American hero. The modern-day understanding of equality and the legal arguments used to obtain it for various groups including African Americans, women, and the LGBTQ community were the brainchild of Pauli Murray. This essay illustrates how Dr. Murray’s family history is emblematic of the struggle for racial justice and equality in America. The pain and tenacity of her ancestors shaped her destiny and spurred her activism. Her family experiences illuminate the many ways that the foothold of structural racism began with placing insurmountable legal barriers between Black men, women, and children as a family unit. …

Investment Bankers As Underwriters—Barbarians Or Gatekeepers? A Response To Brent Horton On Direct Listings, Anat Beck, Robert Rapp, John Livingstone

SMU Law Review Forum

No abstract provided.

When “One Step” Is A Leap: Examining The Fifth Circuit's Correct Interpretation Of The Federal Sentencing Guidelines, Brooke Vaydik

SMU Law Review Forum

No abstract provided.

Flawed Design: How The U Visa Is Revictimizing The People It Was Created To Help, Natalie Nanasi, Roslyn Dubberstein, Tamara Hyndman, Landon Mignardi, Kelsey Vanderbilt, Kali Cohn

Hunter Center Publications

Since the U visa was created, advocates have raised concerns about requiring survivors to interact with the criminal justice system. Many have issued thoughtful critiques of the U visa’s law enforcement certification requirement. But particularly in this moment—where this nation has been called, yet again, to come to terms with its persecution, exploitation, and dehumanization of Black people, Indigenous people, and people of color—it would be irresponsible not to shine a light on the ways that the U visa reinforces an unequal system.

Although this Report addresses the damaging effects of both design flaws, it focuses on the 10,000 annual …

The Corporation Reborn: From Shareholder Primacy To Shared Governance, Grant M. Hayden, Matthew T. Bodie

Faculty Journal Articles and Book Chapters

The consensus around shareholder primacy is crumbling. Investors, long assumed to be uncomplicated profit-maximizers, are looking for ways to express a wider range of values in allocating their funds. Workers are agitating for greater voice at their workplaces. And prominent legislators have recently proposed corporate law reforms that would put a sizable number of employee representatives on the boards of directors of large public companies. These rumblings of public discontent are echoed in recent corporate law scholarship, which has cataloged the costs of shareholder control, touted the advantages of nonvoting stock, and questioned whether activist holders of various stripes are …

Against The Status Crimes Doctrine, West Menefee Bakke

SMU Law Review Forum

No abstract provided.

Greening The Desert, Pamela R. Metzger, Kristin Meeks, Jessica Pishko

Deason Center Reports

Greening the Desert brings a criminal justice lens to the phenomenon of legal deserts in small, tribal, and rural (STAR) communities—vast areas with few, if any, practicing attorneys. The report explores STAR criminal justice communities and describes strategies and initiatives to green these criminal law deserts. Using case studies, the report offers concrete examples of successful innovations. It also includes cautionary notes about risks that may arise with the implementation of strategies to recruit, train, and retain STAR practitioners.

Stare Decisis And The Identity-Over-Time Problem: A Comment On The Majority's Wrongness In Kisor V. Wilkie, Christian Talley

SMU Law Review Forum

In Kisor v. Wilkie, the Supreme Court recently confronted whether to overrule the doctrine under which courts defer to agencies’ interpretations of their own ambiguous regulations—so-called Auer or Seminole Rock deference. In its prior reexaminations of Seminole Rock, the Court had progressively restricted the doctrine’s scope, leading observers to wonder whether the Justices would scrap it for good. This question of administrative law ignited a corollary debate about stare decisis. Writing for the majority, Justice Kagan argued that stare decisis mandated the preservation of Seminole Rock. Yet as she appealed to stare decisis, her opinion further restricted …

Taxation As A Site Of Memory: Exemptions, Universities, And The Legacy Of Slavery, Bridget J. Crawford

SMU Law Review Forum

No abstract provided.

The Trump Administration Should Have Attorney Whistleblowers, Carliss N. Chatman

SMU Law Review Forum

No abstract provided.

You Have One New Message—The Eleventh Circuit Correctly Applies The Spokeo Framework To Tcpa Claims For Unsolicited Text Messaging, Mary Love

SMU Law Review Forum

No abstract provided.