Law Commons^™

Privatizing Child Welfare: Texas’S Gamble With Community-Based Care, Grace Byers

SMU Law Review

There are arguably few populations with greater vulnerability in the United States than children in active child welfare cases. Beyond the abuse or neglect that triggered a child welfare investigation, the child will endure the trauma of having their life uprooted. A child may encounter dozens of people throughout a child welfare case: investigators, police officers, caseworkers, doctors, psychologists, judges, foster parents, and many others. At this critical junction in a child’s life, the state is appointed as the child’s legal conservator to care for the child, find them a temporary home, and provide services to them and their parents …

Survey Of Recent Mandamus Decisions Of The Texas Supreme Court, Douglas S. Lang

SMU Annual Texas Survey

No abstract provided.

Real Property, J. Richard White, Amanda R. Grainger

SMU Annual Texas Survey

No abstract provided.

The Role And Impact Of Forensic Evidence In The Prosecution Of Homicide Cases In The U.S., Afrah Dakhilallah A. Altubait

Theses and Dissertations

The role of forensic evidence in the criminal justice process is an important topic that is significant from both theoretical and practical perspectives. The present study is dedicated to a critical analysis of the role of this evidence in the U.S. criminal justice process with a focus on its significance in homicide cases. Specifically, this dissertation examines the implications of using DNA and fingerprint evidence for convictions in U.S. homicide cases by analyzing the role of DNA and fingerprint evidence in the prosecution of “hot” and “cold” homicide cases, discussing the main ways in which forensic evidence assists with prosecuting …

The Effectiveness Of The Hague Convention In Addressing International Child Abduction, Areej A. Dakelallah Althubiti

Theses and Dissertations

Parental child abduction is a growing concern fueled by immigration, cross-cultural marriages, evolving family dynamics, and gaps in the implementation and enforcement of developed international frameworks. This study examines the effectiveness of and challenges to the enforcement of the Hague Convention on the Civil Aspects of International Child Abduction (HCCA), which was developed to address this problem. Specifically, the goal of this research is to assess the effect the HCCA has had on parental kidnapping, analyze its effectiveness in resolving international custody disputes, and identify the legal and practical obstacles that inhibit implementation. While the prevalence of parental kidnapping continues …

Front Matter

SMU Science and Technology Law Review

No abstract provided.

Stereotypes As Character Evidence, Hillel J. Bavli

Faculty Journal Articles and Book Chapters

Base rate evidence often connects a defendant to an act through the defendant’s membership in a certain population. It includes evidence arising from forensic analysis, criminal profiling, statistical analysis, artificial intelligence, and many other common and emerging scientific methods. But while this evidence is prevalent in civil and criminal trials, it is poorly understood, and there is little predictability in how a court will decide its admissibility or even what standard the court will apply.

In this Article, I show that although some forms of base rate evidence are desirable and even critical to achieving an accurate case outcome, a …

The Problem Of Purpose In Corporate Law, Grant M. Hayden, Matthew T. Bodie

Faculty Journal Articles and Book Chapters

For the last half century, shareholder primacy has reigned as the dominant definition of corporate purpose, as to both the purpose of individual companies and corporate law more generally. Recently, however, the Business Roundtable, the American Law Institute’s Restatement of the Law: Corporate Governance, and many business and legal academics have developed new answers to explain why we have corporations, and the ends to which their massive economic powers should be directed. This Essay endeavors to reframe the focus of the debate beyond purpose itself into the realm of actual governing power. In order to be meaningful, purpose needs governance. …

On Snow's Intellectual Property And Immorality, David O. Taylor

Faculty Journal Articles and Book Chapters

In this Essay, I consider the “why” and “how” of Professor Snow’s controversial, countercultural, important, and relevant position that immorality may result in the denial of intellectual property protection. First, I highlight how surprising it is that Professor Snow’s argument springs from the theories underlying intellectual property protection, rather than the theories underlying the morality and ethics he believes ought to be considered in determining intellectual property protection. No one (that I know, at least) goes to the Environmental Protection Agency seeking better regulations to protect the environment and uses the labor desert theory of property rights as an argument. …

A Democratic Participation Model For Corporate Governance, Grant M. Hayden, Matthew T. Bodie

Faculty Journal Articles and Book Chapters

Corporate law is in the grip of a fundamental conundrum: whether corporations should seek only to serve shareholders or instead attend to the interests of all stakeholders. The doctrine of shareholder primacy, which focuses the corporation’s attention on the goal of maximizing shareholder wealth, has been startingly successful, capturing the theory and practice of corporate governance for roughly fifty years. But recently the costs of this monomaniacal focus on the financial interests of one set of corporate participants have become clearer. At a time when the original reasons for restricting the corporate franchise to shareholders have been shown to rest …

Debt Tokens, Andrea Tosato, Diane Lourdes Dick, Christopher K. Odinet

Faculty Journal Articles and Book Chapters

The worlds of crypto and bankruptcy have collided. Once-prominent, fast growing, and even politically influential platforms for trading cryptocurrencies have imploded spectacularly. Gone are the glossy advertisements, celebrity endorsements, and proclamations that blockchain operates as a law unto itself. Instead, insolvent crypto businesses—including the crypto exchange giant FTX—find themselves in bankruptcy court, no different from any other failed enterprise. These bankruptcies reveal a startling reality: individual investors who placed their trust in these platforms have been stripped of their digital assets. In their stead, they hold hard-to-collect claims against these defunct platforms. Amid the chill of the crypto winter, bankruptcy …

Who Regulates Abortion Now?, Nathan G. Cortez, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

Contrary to both conventional wisdom and recent Supreme Court pronouncements, abortion is not simply a matter of state oversight. For a quarter century now, the federal government has been intimately involved in “regulating” abortion through the U.S. Food and Drug Administration’s approval and continued oversight over mifepristone and other abortion medications. This Article considers the extent to which federal abortion law both coexists and conflicts with state law, as it does with most areas of medicine. We evaluate which body of law is better able at achieving the goals of modern medicine that is evidence-based, ethical, consistent, and individualized.

Patent Textualism, David O. Taylor

Faculty Journal Articles and Book Chapters

The Supreme Court today embraces textualism—the practice of interpreting legal text by reference to how an ordinary person would have understood that text at the time it was promulgated. Yet, when it comes to patent cases at the Court interpreting the statutory provision governing patent eligibility, textualism has rarely been used as an interpretive tool. This Article, besides highlighting this contradiction, will consider how textualism’s application to this foundational aspect of the patent statute would change patent law.

This Article will analyze the Supreme Court’s adoption of textualist principles in other fields and then evaluates the application of textualism to …

The Miserly Message Of Grants Pass, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

The Supreme Court’s recent opinion in Grants Pass v. Johnson condoned states’ attempts to police homeless encampments. This was a significant blow to unhoused individuals and their allies. But the Court’s opinion also continued its march away from the longstanding evolving-standards-of-decency approach in Eighth Amendment cases. Grants Pass was something of an odd case in which to grant certiorari, but it served as an opportunity for the Court to send a quiet message that it would continue narrowing the Eighth Amendment’s scope. As in other recent cases, the Court applied a more historical approach than the one traditionally used in …

The Contractarian Joint Venture, Carla L. Reyes, Christine Hurt

Faculty Journal Articles and Book Chapters

In 2015, a group of entrepreneurs pooled their money together for the purpose of investing in other businesses. The entrepreneurs could have undertaken this activity through a traditional venture capital firm, but they wanted to cut out the middle-man, reduce fees, and retain more control over their capital, so they chose to undertake their investing on their own. The group of entrepreneurs chose not to form an entity. Instead, they attempted to limit their business and liability risk by conducting their activity entirely via software. Unfortunately, the software contained a bug, and an insider siphoned off millions of dollars belonging …

Why Domestic Violence Offenders Don't Give Up Their Guns, Natalie Nanasi

Faculty Journal Articles and Book Chapters

Perpetrators of intimate partner violence are barred by federal law and many states' laws from possessing firearms. While such prohibitions enjoy popular support, they are sporadically and inconsistently enforced, placing the lives of survivors at risk when offenders do not voluntarily comply. Many experts, including this author, have offered legal and policy solutions to increase the likelihood that perpetrators of domestic violence will either willingly relinquish their guns or otherwise be dispossessed of them. But these proposals may have been premature.

This Article is the first to take a step back and inquire why offenders do not surrender their firearms …

Democratization Of The Private Markets?, Colleen Baker, Christina M. Sautter

Faculty Journal Articles and Book Chapters

U.S. initial public offerings are declining and the amount of private market assets under management are exploding. Simultaneously, the number of retail investors opening taxable brokerage accounts is increasing. Private market assets are hot. Everyone–both institutional and retail investors–wants in on the action. Yet considerations such as financial resources and U.S. securities laws make such investment less accessible for many retail investors. In this short article, we explore this changing investment landscape and, specifically, one development within this craze: retail investments in private company shares via closed-end funds (or CEFs).

Recently, CEFs like ARK Venture Fund and Destiny Tech100, Inc. …

The Meaning Of "Other Minerals" And Other Incidents Of Mineral Ownership, Monika U. Ehrman, Colton Franks

Faculty Journal Articles and Book Chapters

Of all the contracts used in the oil and gas industry, none is as important as the oil and gas lease. It is the foundational instrument in oil and gas and a required prerequisite to development for those who do not own the mineral estate. Its uniqueness arises in that, unlike most other oil and gas contracts, it is both a contract and a conveyance of property. Part I of this article begins with an overview of the mineral estate, the predecessor to an oil and gas lease. Part II examines theories of oil and gas rights ownership and oil …

The Fourth Amendment's Hidden Intrusion Doctrine, Laura Ginsberg Abelson

Faculty Journal Articles and Book Chapters

The Fourth Amendment’s concept of probable cause is the linchpin of legal standards governing law enforcement actions such as arrests, searches, and seizures. This article challenges the assumption that the same quantum of evidence can meet the probable cause standard regardless of whether law enforcement seek to conduct a search, to seize evidence, or to make an arrest, and regardless of the intrusiveness of such search or seizure. This paper demonstrates that the Supreme Court implicitly considers the degree of intrusion into privacy or liberty, not just the quantum or quality of evidence, when determining whether probable cause exists. In …

Texas, Delaware, And The New Controller Primacy, Christine Hurt

Faculty Journal Articles and Book Chapters

In January 2024, Elon Musk, CEO of Tesla, Inc., initiated the process of moving Tesla’s state of incorporation from Delaware to Texas, citing concerns over Delaware corporate law. The move sparked discussions about the dominance of Delaware corporate law and its recent rulings, with critics accusing Court of Chancery judges of favoring shareholder interests over controller innovation and managerial discretion.

The shift away from Delaware is set against a backdrop of increasing judicial scrutiny in the Delaware Court of Chancery, where plaintiffs have recently seen successes in litigation against controlling shareholders, corporate directors, and officers. Concerns over Delaware’s evolving legal …

The Legality Of Nuclear-Weapons Sharing Arrangements Under International Law: United States-Nato And Russia-Belarus, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

This Essay argues that certain nuclear sharing agreements between nuclear and non-nuclear powers are legal under the Nuclear Non-Proliferation Treaty. This topic is highly important as Russia has announced its stationing of nuclear weapons in Belarus and Belarus has signaled its intent to use them.

Who Decides: The Role Of Parental Rights In Abortion And Gender-Affirming-Care Decisions For Minors, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

The American legal system presumes that children’s interests are best protected by their parents and, secondarily, by the state’s parens patriae authority. Yet this structure falters when parental authority and state power are infused with political and ideological agendas. This Essay examines how these dynamics have distorted decision-making authority in two contexts—minors’ access to abortion and gender-affirming medical care—and allowed children’s welfare and autonomy to be sacrificed to partisan aims. The law is inconsistent on the role of parental rights—typically empowering parents to grant or withhold consent to a minor’s abortion but categorically stripping them of the power to consent …

The Real Story Of Nepa Litigation In Clean Energy Permitting, Anna Mance

Faculty Journal Articles and Book Chapters

Environmental protections and the processes of the administrative state are under attack. In recent years, the National Environmental Policy Act (NEPA) has drawn outsized criticism from across the political and legal spectrum as a major impediment to climate friendly infrastructure and the clean energy transition. NEPA enables private groups to challenge development through litigation. Critics are moving to strip public oversight over federal permitting based on claims that these private groups bring largely frivolous environmental claims to court, driving up costs for developers and delaying progress responding to climate change. But is this really true?

Drawing on an original dataset …

Rethinking Juror Impartiality, Anna Offit

Faculty Journal Articles and Book Chapters

Jury impartiality in the contemporary court often justifies the perpetuation

of exclusionary selection practices that make juries more—not less—biased.

This Article calls for a rethinking of this important but flawed concept. Constitutional

interpretations and conceptions of “impartiality” frame it as a transient

orientation toward particular evidence or parties. Yet, during voir dire, the prevailing

conception of jury impartiality is that it is an immutable character trait

that must be discovered—if not created—by professional legal actors. What voir

dire creates is not an impartial jury, but precisely the opposite: a venire shaped

by the strategic biases of lawyers.

This Article offers …

Gravitational Property Theory, Monika U. Ehrman

Faculty Journal Articles and Book Chapters

Isaac Newton and Albert Einstein defined and redefined the field of physics. Their theoretical work on gravity is still considered a monumental discovery of their respective times. Although born centuries apart, the theory of gravity each advanced is still essential. Newton’s theory is applied on Earth and even throughout much of the solar system, while Einstein’s theory is used in special environments, such as near black holes. Neither theory is discarded, but instead used where appropriate. Likewise, gravitational property theory proposes that simple property theory—the ad coelum doctrine—is still appropriate for simple property, like stationary or vertical objects. And complex …

Copyright's Dominion, Shani Shisha

Faculty Journal Articles and Book Chapters

Copyright law is under attack. Scholars and activists have long argued that American copyright law is a shambolic mess—vague, unpredictable, and startlingly overbroad. But amidst the swirling chaos, one core principle has remained intact: the idea that copyright attaches only to intangible goods. In theory, copyright resides in an intangible work of authorship, not a physical artifact. It is the intellectual creation, rather than the material copy, that gives rise to copyright protection. Copyright law thus rests on a stark distinction between the intellectual property of authors and the personal property of consumers—in short, between the intangible work and the …

The Racial History Of Marital Privilege, Jessica Dixon Weaver

Faculty Journal Articles and Book Chapters

Serena Mayeri’s Marital Privilege: Marriage, Inequality, and the Transformation of American Law unearths forgotten racial and political battles centered on establishing equal benefits and opportunities for unmarried parents and couples. It is the first book that grapples with the racial motivations of the late twentieth-century United States government withdrawal or manipulation of a host of laws that center the normative White, married, heterosexual couple. Marital Privilege emphasizes how both federal and state governments marginalize poor people to limited spaces within a weak economic safety net, often leaving families at the intersection of poverty and race unable to take advantage of …

Unflexed Muscle: Sec Enforcement And Officer Sox 302 Certifications, Marc I. Steinberg, A.B. Steinberg

Faculty Journal Articles and Book Chapters

This article represents the first work to analyze the Securities and Exchange Commission’s neglect in its enforcement of the chief executive officer (CEO) and chief financial officer (CFO) Sarbanes-Oxley certification requirement. The article addresses the appropriate construction of the statute’s reach, the enforcement proceedings instituted by the SEC under this provision, and the Commission’s failure to fulfill its legislative directive to enforce this statute and Rule 13a-14 promulgated thereunder. In its implementation of the CEO and CFO certification requirement, the SEC has brought relatively few enforcement actions during over a two-decade period. Its enforcement with respect to CEOs and CFOs …

Transportation Security Administration Use Of Facial Recognition Technology: Turbulence Surrounding Traveler Rights, Mckenly Redmon

SMU Science and Technology Law Review

Facial recognition technology has been employed by law enforcement agencies and private companies for decades. This technology promises safer and more efficient processes to identify individuals in the name of safety. However, not everyone approves of their biometric data being collected. This Article provides an overview of the current use of facial recognition technology by the Transportation Security Administration (TSA) in airport security checkpoints. It begins by explaining the underlying technology behind facial recognition and explores the safety and security concerns behind it. Building on this foundation, this Article then evaluates how the TSA’s use of facial recognition influences science …

Front Matter

SMU Science and Technology Law Review

No abstract provided.