Law Commons^™

Cruzan And Surrogate Decision-Making, David Orentlicher

SMU Law Review

No abstract provided.

Video Advance Directives: Growth And Benefits Of Audiovisual Recording, Thaddeus Mason Pope

SMU Law Review

No abstract provided.

A History Of The Law Of Assisted Dying In The United States, Alan Meisel

SMU Law Review

No abstract provided.

Tribute To Professor Vicki Palacios, Jennifer M. Collins

SMU Law Review

No abstract provided.

Vicki Palacios—An Appreciation, C. Paul Rogers Iii

SMU Law Review

No abstract provided.

What Is Nonmarriage?, Katharine K. Baker

SMU Law Review

As rates of cohabitation rise, and marriage becomes a status reserved almost exclusively for socio-economic elites, the scholarly calls for family law to recognize more nonmarital families grow stronger by the day. This Article unpacks contemporary proposals to recognize more nonmarital families and juxtaposes those proposals with family law’s contemporary marital regime. Family law’s status-based system provides a mostly simple and efficient means of distributing resources at the end of a marriage by imposing a formulaic, but distinctly communitarian, non-market-based approach to obligation, entitlement, and value. In full, the Article defends family law’s status-based system for what it does well, …

Down Step By Step—Ratification Of Oil And Gas Leases By Royalty Interests In Texas, Christopher S. Kulander

SMU Law Review

A sporadic series of opinions dating back seven decades has incrementally established that, in Texas, the executive has no authority to pool the royalty or nonexecutive mineral interest covered by an oil and gas lease. Conversely, the owners of nonexecutive interests do have a choice whether or not to ratify leases that purport to cover their interest. This state of the law arose first from cases involving royalty apportionment and community leases, then drawing in nonexecutive interests, before finally establishing the privileged position of freestanding royalty and nonexecutive mineral interests. Texas should instead follow the lead of Louisiana and West …

Jefferson’S Taper, Jeremy N. Sheff

SMU Law Review

This Article reports a new discovery concerning the intellectual genealogy of one of American intellectual property law’s most important texts. The text is Thomas Jefferson’s often-cited letter to Isaac McPherson regarding the absence of a natural right of property in inventions, metaphorically illustrated by a “taper” that spreads light from one person to another without diminishing the light at its source. I demonstrate that Thomas Jefferson likely copied this Parable of the Taper from a nearly identical passage in Cicero’s De Officiis, and I show how this borrowing situates Jefferson’s thoughts on intellectual property firmly within a natural law theory …

The Sovereign’S Invisible Grasp: Katzin V. United States And The Case For Nonpossessory Physical Takings, James Kemp

SMU Law Review

No abstract provided.

A Particular Social Group In Asylum Proceedings— The Fifth Circuit’S Categorial Ban On Victims Of Domestic Violence, Meagan Maloney

SMU Law Review

No abstract provided.

Moving The Goalposts: Why Congress Should Consider Extending The Nfl’S Antitrust Exemption To The Directv Sunday Ticket Package, Jack Milligan

SMU Law Review

No abstract provided.

Tribute To Professor Peter Winship, Jennifer M. Collins, Bruce Tomaso

SMU Law Review

No abstract provided.

Apologia: A Non-Retirement Tribute To Professor Peter Winship, My Smu Law Colleague Of Over Four Decades, Joseph J. Norton

SMU Law Review

No abstract provided.

A Tribute To Peter Winship—Academic Lawyer Par Excellence, C. Paul Rogers Iii

SMU Law Review

No abstract provided.

Margins: Estimating The Influence Of The Big Three On Shareholder Proposals, Caleb Griffin

SMU Law Review

This Article contributes to the growing literature on the influence of index funds on corporate governance by providing new data on index funds’ ownership, voting control, and impact on shareholder proposal outcomes. The Article first presents data on the firm ownership and voting control of the three largest index funds (the Big Three) at Fortune 250 companies. It finds that the Big Three combined are the largest shareholder in 96% of Fortune 250 companies, that Vanguard and BlackRock combined (the Big Two) are the largest shareholder in 94.4% of such companies, and that Vanguard alone (the Big One) is the …

Machine Learning And The New Civil Procedure, Zoe Niesel

SMU Law Review

There is an increasing emphasis in the legal academy, the media, and the popular consciousness on how artificial intelligence and machine learning will change the foundations of legal practice. In concert with these discussions, a critical question needs to be explored—As computer programming learns to adjust itself without explicit human involvement, does machine learning impact the procedural practice of law? Civil procedure, while sensitive to technology, has been slow to adapt to change. As such, this Article will explore the impact that machine learning will have on procedural jurisprudence in two significant areas—service of process and personal jurisdiction. The Article …

The Pathological Perspective And Presidential Election, Edward A. Hartnett

SMU Law Review

We live in troubled times, with competing political camps acting like opposing tribes. We live in separate enclaves, get our information from separate sources, and remain inside our own information bubbles. We should bear these divisions in mind as we discuss possible changes to our system of electing the President. The year 2020 began with a presidential impeachment trial, featured at its midpoint a Supreme Court decision holding that a state may require its presidential electors to vote in accordance with that state’s popular vote, and will end with a presidential election. Many think that we should scrap electors and …

Distinctly Claiming An Invention, Karen E. Sandrik

SMU Law Review

Patent law has a problem. Its foundation rests on the principle that a patent will clearly define its boundaries through its claims—the metes and bounds—yet the very standard for defining the boundaries is unclear. In 2014, the Supreme Court sought to guide courts and the patent bar on the level of precision needed when drafting these claims. Endorsing a “reasonable certainty” standard, the Court had one goal in Nautilus v. Biosig Instruments, Inc.: to give definiteness to the law of patent indefiniteness. Today, instead of a unitary definiteness standard that is applied across all forums of patent adjudication, there are …

Genetically Customized Generations—A Need For Increased Regulatory Control Over Gene Editing Technology In The United States, Morgan Mendicino

SMU Law Review

Gene editing technology, once a far-fetched scientific fantasy, has become a tangible reality. One emerging form of gene editing in particular, human germline genome editing, possesses revolutionary capabilities that warrant cautious examination. Recent advancements in research have demonstrated that such biotechnology could be used to alter the genetic makeup of unborn children and the hereditary genes of future generations. This biotechnology may possess the ability to save countless human lives, but we must ask—What happens when the line between preventing disease and “playing God” becomes blurry? Human germline genome editing raises a multitude of widespread and deeply rooted questions surrounding …

Beware Of The Drug Detection Dog: The Fourth Amendment, Drug Detection Dogs, And State Legalization Of Marijuana, Morgan Smith

SMU Law Review

Under current Supreme Court precedent, the “sniff” of a trained drug detection dog generally does not constitute a search within the meaning of the Fourth Amendment because of the dog’s unique ability to detect contraband items without physical intrusion. Thus, police canines have become valuable tools utilized by law enforcement since the Drug War era. Many questions have arisen, however, as to the validity of warrantless dog sniffs in states where marijuana has been legalized and thus, is no longer contraband. Further, the Supreme Court’s view that a drug dog sniff is not a search has raised concerns because it …

Imposing Identity: Why States Should Restrict Infant Intersex Surgery, Laura Sundin

SMU Law Review

Babies born with sex characteristics that do not “fit typical binary notions of male or female” are as common as babies born with red hair. These newborns may have one of many types of internal or external abnormalities, coined “intersex” conditions, such as having both an ovary and a testicle or having a large clitoris that resembles a penis. Despite their prevalence, the community of children with intersex conditions was stigmatized by prominent psychologists in the 1960s who theorized that to be “normal” the child must grow up with “unambiguous genitalia” and a binary gender identity. This theory caused fear …

Front Matter

SMU Law Review

No abstract provided.

Escaping Doctrinal Lockboxes In First Amendment Jurisprudence: Workarounds For Strict Scrutiny For Low-Value Speech In The Face Of Stevens And Reed, Clay Calvert

SMU Law Review

The United States Supreme Court’s 2010 opinion in the crush-video case of United States v. Stevens made it extremely difficult to declare new varieties of low-value speech unprotected by the First Amendment. Five years later, the Court’s sign-ordinance ruling in Reed v. Town of Gilbert made it exceedingly tough for facially content-based regulations imposed on presumptively protected speech to be analyzed by any standard of judicial review less rigorous than the demanding strict scrutiny test. This Article examines how some courts today, despite being hemmed in by the strictures of both Stevens and Reed, are creatively unearthing novel ways to …

The Next "Big Short": Covid-19, Student Loan Discharge In Bankruptcy, And The Slabs Market, Samantha L. Bailey, Christopher J. Ryan Jr.

SMU Law Review

Even before the spread of the COVID-19 pandemic, student loan debt—totaling over $1.64 trillion—was a cause for concern, as it is the second largest source of consumer debt in the United States, trailing only mortgage debt. And like collateralized mortgage debt, there is a market for collateralized student debt. Student loan asset-backed securities (SLABS) are the securitized form of student loan debt, repackaged as a marketable financial instrument. As with any investment vehicle, asset-backed securities like SLABS come with risk, particularly when borrowers default on their loans or have their debt discharged through bankruptcy proceedings. However, historically, SLABS have been …

The Debate Over The Permissibility Of Selective Privilege Waiver Orders Under Federal Rule Of Evidence 502(D): The Crucial Scope Issues, Edward J. Imwinkelried

SMU Law Review

In the past, most common-law courts developed an intense antipathy to privileges because they perceived privileges as obstructing the search for truth. To begin with, the courts made it difficult for claimants to assert privileges by prescribing rigorous foundational requirements for privilege claims. Moreover, the courts made it easy to find a waiver. As some commentators observed, many courts took an absolutist approach and demanded that holders guard their privileges like crown jewels. For example, the courts announced that even inadvertent production of privileged material could effect a waiver, a waiver as to any privileged communication automatically extends to any …

The Risks And Rewards Of Shareholder Voting, Bernard S. Sharfman

SMU Law Review

The SEC’s recent staff roundtable on the proxy process and its resulting guidance, interpretation, and proposed rules has made shareholder voting the most prominently debated corporate governance issue of recent times. The number of comment letters submitted to the SEC has been voluminous and includes eight submitted by this Article’s author. Yet, the author doubts many of the writers of these letters, except in the context of their political agendas, have really thought deeply about the role shareholder voting plays in the governance of corporations, the collective action problem imbedded in such voting (and how it needs to be managed), …

The Legacy Of Cruzan: Balancing The Moral Agency Of Surrogates And The State, Margie Hodges Shaw, Timothy E. Quill, Bernard L. Sussman

SMU Law Review

No abstract provided.

Up To Interpretation—Highlighting The Texas Supreme Court’S “Ambiguous” Approach To Statutory Construction, Kyle Gromann

SMU Law Review

No abstract provided.

Tribute To Professor Peter Winship, William V. Dorsaneo Iii

SMU Law Review

No abstract provided.

Eu Air Passengers’ Rights Past, Present, And Future: In An Uncertain World (Regulation (Ec) 261/2004: Evaluation And Case Study), Sarah Jane Fox, Luis Martín-Domingo

Journal of Air Law and Commerce

Passenger rights have continued to be strengthened following deregulation in the European Union (EU—previously the European Community) with common rules on compensation and assistance to passengers in the event of denied boarding, cancellation, and long flight delays. In January 2020, the European Commission (EC) stated that “these rights need to be better known and easier to understand and enforced.” This article considers the emerging role of Claims Management Companies (CMCs) as a step to aid passengers in achieving redress against airlines, undertaking a case study of a CMC in Spain.

The research also addresses the complexities of airline passenger rights, …