Law Commons^™

Partnership Law, Jeff Dorrill, Matthew Schindel, Troy Christensen, Kate Ortbahn, Josiah Bethards

SMU Annual Texas Survey

No abstract provided.

Professional Liability, Evan A. Kirkham, Derrick R. Ward, Lance G. Henderson

SMU Annual Texas Survey

No abstract provided.

Real Property, J. Richard White, G. Roland Love, Amanda Grainger

SMU Annual Texas Survey

No abstract provided.

Securities Regulation, George L. Flint Jr.

SMU Annual Texas Survey

No abstract provided.

Wills & Trusts, Gerry W. Beyer

SMU Annual Texas Survey

No abstract provided.

A Law Professor’S Modest Response To Trumpism: Supervising Student Directed Research Papers On Impeachment, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

This short essay discusses my motivation for and the reading materials and procedures I use when offering about a half-dozen law students each semester a Directed Research option to research and write papers on the topic of Presidential impeachment. I recommend that those faculty members who may have only a modest Constitutional Law background, but who feel as I do that greater understanding and more sustained discussion of the merits and drawbacks of removal of President Trump from office through impeachment is called for, and who wish to facilitate such understanding and discussion without compromising their professional and ethical obligations …

Beyond The Pipeline Wars: Reforming Environmental Assessment Of Energy Transport Infrastructure, James W. Coleman

Faculty Journal Articles and Book Chapters

In recent years the role of transport infrastructure in energy markets has become a flashpoint for legal conflict. On one hand, the world is experiencing an unprecedented build-out all kinds of energy transport: oil and gas pipelines, liquefied natural gas projects, power transmission, and port facilities for coal and oil. On the other hand, environmental advocates have increasingly insisted that pipelines and other transport projects should not be built if they would encourage fossil fuel production in markets “upstream” and fossil fuel consumption in markets “downstream” of these projects.

Governments have struggled with how to respond. President Obama famously promised …

Joe Mcknight And The Oxford Summer Program, Lackland H. Bloom Jr.

SMU Law Review

No abstract provided.

Professor Joseph Mcknight, Jurist And Historian, Alexander Mccall Smith

SMU Law Review

No abstract provided.

Remembering Professor Joseph Mcknight, Leland L. Coggan

SMU Law Review

No abstract provided.

A Curious Parental Right, Margaret Ryznar

SMU Law Review

The United States Supreme Court has not articulated the appropriate level of scrutiny for judicial review of interferences with the parents’ care, custody, and control of their children, despite determining it to be constitutionally fundamental. While some observers have called for the selection of a level of scrutiny to prevent inconsistencies among the lower courts, the complexity of the parental right has made it difficult for courts to use one level of scrutiny in such cases. To accommodate this complexity, this Article begins to build a new framework for conceptualizing the parental right in a way that explains and justifies …

Memorial Essay In Honor Of Professor Emeritus Joseph Webb Mcknight: Yet Another Historical Joinder Between Texas And Mexico: The Ongoing Nafta Saga, Joseph J. Norton

SMU Law Review

No abstract provided.

Twitter And The #So-Calledjudge, Elizabeth G. Thornburg

SMU Law Review

Two-hundred-eighty characters may be insufficient to deliver a treatise on the judiciary, but it is more than enough to deliver criticism of the third branch of government. Today, these tweeted critiques sometimes come not from the general public but from the President himself. Attacks such as these come at a challenging time for court systems. We live in a highly politicized, polarized society. This polarization is reflected in attitudes toward the courts, particularly the federal courts. Unfortunately, public doubts about the court system come at a time when public understanding of the structure of government, and especially the court system, …

Presenting A Critical Perspective On “Economic Efficiency” In Law And Economics Courses, Gregory S. Crespi

SMU Law Review

“Law and Economics” courses are sometimes criticized for inadequately explaining the normative criterion of “economic efficiency” and then applying this criterion throughout the course in a superficial and biased manner that pejoratively labels most governmental market interventions and wealth redistribution measures as inefficient. These criticisms have merit, and in this article I point out a number of conceptual problems, empirical difficulties, and normative shortcomings of the economic efficiency criterion that students need to understand in order to be able to effectively counter policy arguments that rest upon dubious efficiency assessments.

The eight specific shortcomings of the economic efficiency criterion that …

Shades Of Theology In Suits Affecting The Parent-Child Relationship: A Tribute Honoring The Memory Of Professor Joseph W. Mcknight, Dr. Beverly Caro Dureus

SMU Law Review

No abstract provided.

The Decline Of Anglo-American Civil Jury Trial Practice, William V. Dorsaneo Iii

SMU Law Review

This article provides a brief historical explanation of the role that juries have played in Anglo-American civil trial practice. In doing so, the article documents the rise and fall of jury trial practice as a mechanism for resolving civil disputes in both England and America. The article explains how the modern rules of procedure and procedural statutes promote resolving disputes through pretrial litigation procedures at the expense of resolving disputes by jury trial.

The article begins with a description of the use of juries in England at the end of the twelfth century and continues until the near disappearance of …

Rethinking Powers Of Attorney In Real Estate Transactions, Julia Patterson Forrester Rogers

SMU Law Review

The Uniform Power of Attorney Act, adopted in 2006, was designed to address the divergence of various states from the original uniform act and to address problems identified by attorneys practicing in the area. One such problem was the refusal of parties to accept powers of attorney—although a client might execute a durable power of attorney as part of an estate plan to avoid a guardianship, parties would refuse to deal with the agent, thus necessitating a guardianship proceeding. The Uniform Act has now been enacted in some form in more than half of the states, including Texas. The author …

Front Matter

SMU Law Review

No abstract provided.

The Enforceability Of Consent-To-Assign Provisions In Texas Oil And Gas Leases, T. Ray Guy, Jason Wright

SMU Law Review

Oil and gas leases are unique instruments that, on their face, appear to be contracts or traditional landlord–tenant leases. Indeed, landowners often desire to have them treated as such by including provisions giving a lessor power to limit or control any assignment of the lease. Typically, this takes the form of a consent-to-assign provision seen in many types of ordinary contracts and leases. In Texas, however, an oil gas lease actually conveys a fee simple property interest; and property law, far more than contract or landlord–tenant law, greatly disfavors any restraint that acts to restrict the free transferability (or “alienation”) …

Monitoring Behavior: Universities, Nonprofits, Patents, And Litigation, Teo Firpo, Michael S. Mireles

SMU Law Review

This paper examines the confluence of two important issues concerning patent law. The two issues are the merits of the debate concerning the supposed “patent troll” crisis and the increased patenting and licensing of university and other nonprofit inventions, including the litigation of those patents.

First, there is a debate in the literature concerning the presence and scope of the problem concerning so-called “patent trolls.” To some, supposed “patent troll” behavior is ordinary litigation behavior, and to others, it points to problems with the patent litigation system. Indeed, some may argue that the benefits of “patent trolls” may outweigh the …

“You’Re Not Gonna Reach My Telephone”— The Resurgence Of The Fourth Amendment’S Particularity Requirement, Tammie Beassie Banko

SMU Law Review

No abstract provided.

Extraterritoriality And The Alien Tort Statute— Narrow Application Preserves Crucial Boundaries, Alicia Pitts

SMU Law Review

No abstract provided.

Texas Gulf Sulphur At Fifty—A Contemporary And Historical Perspective, Marc I. Steinberg

SMU Law Review

Fifty years ago, the Second Circuit decided perhaps the most important case under the U.S. securities laws – Securities and Exchange Commission v. Texas Gulf Sulphur. This decision focused on several landmark issues, including insider trading, company disclosure obligations, and the concept of materiality. Although a number of its rulings subsequently were rejected by the U.S. Supreme Court, others remain good law today. Indeed, the significance of Texas Gulf Sulphur’s analysis in large measure is evidenced by its continued vitality in the federal courts and SEC enforcement practice. From a comparative law perspective, Texas Gulf Sulphur also is …

From Tgs Conservatorships To Sarbanes-Oxley Fair Funds, Richard M. Buxbaum

SMU Law Review

While the TGS duo is justly known for its foundational work on the application of Rule 10b-5 to insider trading and corporate misstatements, two other aspects of the two cases are the focus of this contribution. The first is the development of the role of the SEC as conservator, derived originally from the equity side of federal bankruptcy law, but expanded to function as a general equitable remedy. That remedy faced difficult issues concerning the ranking of different victims of insider trading, in particular the status of an entity as a claimant in competition with victimized market participants. The second, …

Texas Gulf Sulphur: A Case Study On Responding To Market Rumors, Wendy G. Couture

SMU Law Review

This essay uses Texas Gulf Sulphur as a case study on an issue that companies continue to face today: whether, and how, to respond to market rumors. This essay analyzes the countervailing incentives that influence whether companies respond to market rumors, applies those pressures to the facts of Texas Gulf Sulphur, and concludes that counsel today would likely advise similarly situated companies to remain silent rather than respond to market rumors. Drawing therefrom, this essay argues that silence is not the socially optimal response and that the dueling pressures on companies should be adjusted to incentivize companies to respond to …

From Equality To Duty: On Altering The Reach, Impact, And Meaning Of The Texas Gulf Legacy, Lisa M. Fairfax

SMU Law Review

As the first federal court decision to hold that insider trading represented a violation of the federal securities laws, the historical importance of SEC v. Texas Gulf Sulphur Co. is clear. However, its current relevance may not be so clear. This is because while there are some aspects of Texas Gulf that have endured and remain a fixture of federal insider trading jurisprudence, the Supreme Court has firmly repudiated the normative rationale for in- sider trading articulated by Texas Gulf. This essay contends that this repudiation has important descriptive and normative implications. Perhaps most importantly, this essay contends that Texas …

Personal Benefit Has No Place In Misappropriation Tipping Cases, Merritt B. Fox, George N. Tepe

SMU Law Review

The Supreme Court’s decision in Salman v. United States left unanswered an important issue concerning the reach of Rule 10b-5’s prohibitions with respect to trades based on a tip of material inside information: in cases based on the misappropriation theory, is it necessary to show that the tipper enjoyed a personal benefit of which the trader was aware? The personal benefit test was originally developed in the context of tipping cases based on the classical theory of insider trading. The Supreme Court in Salman explicitly said that it was not reaching the matter of whether the test should be extended …

Unintended Consequences: The Link Between Judge Friendly’S Texas Gulf Sulphur Concurrence And Recent Supreme Court Decisions Misconstruing Rule 10b-5, Margaret V. Sachs

SMU Law Review

In his Texas Gulf Sulphur concurrence, Judge Henry J. Friendly coun- seled the federal district courts concerning the numerous pending satellite class actions that had been filed under Section 10(b) of the Securities Ex- change Act and Rule 10b-5. In the course of so doing, he argued forcefully that private Rule 10b-5 litigation should be curtailed. Finding his argument convincing, the Supreme Court issued four major decisions restricting the Rule between 1975 and 1994, while nonetheless expanding it in Basic Inc. v. Levinson. Congress responded by blessing both aspects of the Court’s jurisprudence – imposing its own set of …

The Coasian Firm And Insider Trading, Revisited, James C. Spindler

SMU Law Review

I present an economic model of insider trading building upon Haddock & Macey’s classic analysis of trading by the manager of a Coasian firm (i.e., a firm in which agency costs do not exist). Due to current shareholders’ status as expected sellers of shares, Coasian insider trading allows shareholders to expropriate outsiders via the managerial proxy and any signaling value of insider trading is eliminated by shareholders’ biased incentives. Adverse selection results. If a system of credible disclosure exists, an insider trading ban results in more disclosure, more efficient prices, and lower illiquidity costs. While the case for insider trading …

Richard Posner: A Class Of One, Robert C. Farrell

SMU Law Review

Judge Richard Posner, best known for his contributions to the field of law and economics, has also made an outsized contribution to another area of the law—the equal protection class-of-one claim. By some combination of happenstance and design, Posner was able to shape the class-of-one doctrine even where his views were inconsistent with Supreme Court precedent. The Supreme Court’s initial exposition of the doctrine had identified an equal protection violation when there was intentionally different treatment of similarly situated persons without a rational basis for the difference in treatment. Posner insisted that this language included within it a requirement that …