Law Commons^™

Reclaiming Fiduciary Duty: Esg, Wall Street Fee Minimalism, And The Case For Pension Divestment, Thomas Murray, R. Alexander Acosta

SMU Law Review Forum

This Article examines two forces that have distorted the fiduciary obligations of American pension trustees: (1) ESG activism by the dominant index fund managers and (2) the fee-minimalism argument those same managers have deployed to discourage divestment. Part I establishes the legal architecture of fiduciary duty under ERISA and trust law, centering on the independent duties of loyalty and prudence. Part II traces the history of how ESG considerations migrated from the periphery of investment practice to institutional orthodoxy through the influence of investment consultants, global coalitions, and Department of Labor subregulatory guidance. Part III documents how ESG stewardship by …

Russian Linguistic Policy In The Post-Soviet World, Payton G. Deichler

The Dialogue

This paper examines the role of the Russian language as an instrument of soft power in the post-Soviet space, arguing that its geopolitical influence extends beyond demographic prevalence to the institutional frameworks through which it is promoted and mediated. Rather than functioning solely as a neutral medium of communication, Russian operates as an infrastructural component of influence that shapes access to media ecosystems, educational systems, and professional mobility across former Soviet republics. Drawing on the concept of a “Monopoly of Interpretation,” this study proposes that the centralized, state-linked promotion of Russian enables the consolidation of political narratives within shared linguistic …

Trump V. Biden Judges, Stephen J. Choi, Mitu Gulati

SMU Law Review Forum

Curious about the merits of judges Donald Trump appointed in his first term as president, we previously looked at the performance of Trump-appointed judges as compared to those appointed by other presidents. On a set of three measures—productivity, influence, and independence—the Trump judges performed as well, if not better, than judges appointed by Presidents Obama and Bush. As for President Biden’s appointees, they did systemically worse than Trump’s. Biden judicial selections were, at the time we did our prior study, however, new judges. Maybe, we wondered, these judges would do better on our measures a year or two hence? What …

Three Paths To Justice: Comparing Feminist Strategies Against Gender-Based Violence In East Asia, Ashley Chon

The Dialogue

No abstract provided.

Availability Model To Evaluate Ai Data Centers’ Role In Grid Stability, Troy Mcsimov, Trevor S. Kunz, Jeffrey Billo

SMU Data Science Review

The United States has made it clear; it is imperative that the US wins the global AI race. This paper focuses on one of the most challenging puzzle pieces surfaced at the POWER Data Center conference (San Antonio, Sept. 30.); for Electric Reliability Council of Texas (ERCOT) the limiting factor is not generation alone but the need to balance generation and load to preserve grid reliability.

The regulatory landscape fundamentally changed with the passage of Texas Senate Bill 6 in June 2025, which mandates new large loads must "contribute to the recovery of the interconnecting electric utility’s costs" (Texas Legislature, …

Beyond "Management-Friendly": The Shareholder Case For Texas’ 2025 Corporate Governance Reform, Chris Babcock, David G. Cabrales, Angel Torres

SMU Law Review Forum

Amid declining legal certainty in Delaware driven by recent court decisions and an increasingly active plaintiffs’ bar, Texas’ 2025 corporate governance reform marks a deliberate bid to position Texas as a premier jurisdiction for corporate formation, governance, and dispute resolution. This article examines three central amendments to the Texas Business Organizations Code (§§ 21.419, 21.552, and 21.373) enacted by Texas’ 2025 corporate governance reform and seeks to demonstrate that, contrary to early criticism labeling such amendments as management friendly or anti-shareholder, these amendments are, in fact, beneficial to shareholders. As this article will demonstrate, these amendments introduce substantive changes to …

The Guarantor's Lifebuoy In The Bankruptcy Ocean, E. Jason Dennis, Carter S. Plotkin

SMU Law Review Forum

The Guarantor’s Lifebuoy in the Bankruptcy Ocean is an article by a practicing litigation law firm partner and associate based on their recent real-world experience arguing in Texas state court and federal bankruptcy court and lessons learned. The article is designed to examine an evidently underutilized bankruptcy stay exception and give actionable how-to advice on invoking it to litigators defending guarantors in scenarios they commonly face: a bankrupt principal obligor defaulting on the guarantied debt.

Civil And Criminal Justice Remedies For Intimate Partner Violence, Demetrice M. Lopez, Anika Ramos

Hunter Center Publications

Intimate partner violence (IPV) is a persistent public health problem that impacts the physical and mental health of millions of people each year. The United States has historically relied on the legal system as the primary means of addressing IPV as a criminal or civil infraction. This chapter begins with a review of the history of IPV in the context of the legal system. It then considers the dynamics of IPV and its influence on the legal response. The chapter then looks at the broader impact of IPV and remedies for survivors in the justice system. Finally, it considers the …

Legal Turbulence: Addressing Unresolved Questions In Civil Aviation Through Judicial Adjudication, Arthur Shirichena

Journal of Air Law and Commerce

The increasing complexity of international civil aviation has outpaced the mechanisms currently available for the peaceful resolution of disputes. While aviation has long been governed by treaties such as the Chicago Convention of 1944 and managed through institutions like the International Civil Aviation Organization (ICAO), many emerging issues remain unresolved by these frameworks. Questions concerning the interaction between aviation and competition law, the legality of air blockades and no-fly zones, and the definitional ambiguities surrounding dual-use technologies such as weaponized aircraft or unmanned aerial systems have created pressing normative and jurisdictional challenges. This Paper argues that the establishment or empowerment …

Operational Agency: A Permeable Legal Fiction For Tracing Culpability In Ai Systems, Anirban Mukherjee, Hannah H. Chang

SMU Science and Technology Law Review

Modern artificial intelligence (AI) systems act with a high degree of independence yet lack legal personhood—a paradox that fractures doctrines grounded in human-centric notions of mens rea and actus reus. This Article introduces Operational Agency (OA)—a permeable legal fiction structured as an ex post evidentiary framework—and Operational Agency Graph (OAG)—a tool for mapping causal interactions among human actors, organizations, and AI systems. OA evaluates an AI’s observable operational characteristics: its goal-directedness (as a proxy for intent), predictive processing (as a proxy for foresight), and safety architecture (as a proxy for standard of care). OAG operationalizes that analysis by embedding these …

Suing The Ghost In The Medical Machine, Jason R. Cheek

SMU Science and Technology Law Review

Devices that autonomously diagnose medical conditions, with no human interaction, have arrived. These self-operating systems incorporate artificial intelligence (AI), and include machines that diagnose preventable blindness, as well as some that write radiology reports. These devices feature AI-integrated software to make diagnosis decisions traditionally made by humans who have received extensive medical training. Soon, AI-driven devices will autonomously make treatment decisions.

What happens when these autonomous medical systems harm a patient? At the moment, most would expect product liability law to provide a path to recovery. But AI oftentimes uses multiple complex inputs and approaches, including statistical probabilities, to reach …

An Empirical Examination Of Law Student Attitudes Toward Legal Writing With Generative Ai, Abigail L. Perdue

SMU Science and Technology Law Review

Amid mounting predictions that generative artificial intelligence (AI) will substantially disrupt legal education, legal writing professors grapple with how and when to integrate generative AI into the classroom. While some believe that it should be woven into existing courses and integrated across the curriculum, even in the first year, others contend that it is better reserved for discussion in upper-level courses dedicated to AI-assistance. Yet it remains unclear which approach will best prepare graduates for the modern practice of law. Indeed, some scholars caution that permitting law students to use generative AI to complete their legal writing coursework, particularly in …

Front Matter

SMU Law Review

No abstract provided.

Re-Rethinking Asian Exclusion And Color-Blind Immigration, Gabriel J. Chin

SMU Law Review

During Reconstruction, as Congress debated the place of African-Americans in U.S. society, it evaluated how the principles it articulated would apply to Chinese-Americans. Rather than adopting a race-neutral jurisprudence, it began identifying the ways in which the law could be deployed to deny Asians economic and political opportunities, and the right to immigrate. Ultimately, a joint network of federal and state laws denied Asians the right to naturalize, to own land, and to immigrate. In a rare win, a divided Supreme Court held that the children of Chinese people born in the United States were citizens by virtue of the …

The New Assault On Plyler V. Doe, Cori Alonso-Yoder, Gabriel Sanchez

SMU Law Review

The second Trump Administration has disregarded a history of bipartisan support in avoiding immigration enforcement actions in schools. Certain states have acted to further target children at school—advancing measures to exclude many from public education based on immigration status. While the Supreme Court in Plyler v. Doe affirmed the state and national interests in educating students regardless of status, the Heritage Foundation has called on states to pass legislation to overturn that decades-old precedent. While no state has yet adopted these measures, many states have tried, marking a new attack on the precedent in Plyler.

This Article builds on …

Second-Class Asylum, Third-Country Danger, Michael Kagan

SMU Law Review

The Trump Administration has aggressively pursued a policy of deporting people who have been found to be in danger of persecution or torture in their countries of origin to third countries. It has primarily impacted people who have two types of what may be called second-class asylum, namely withholding or deferral or removal. This Article examines the structural problems posed by second-class asylum as defined in the Immigration and Nationality Act (INA). The INA’s collection of tiered protected status for people in danger in their countries of origin was always illogical, though its incoherency was more manageable before 2025, when …

Embryonic Option-Hood, Elissa Philip Gentry, Mackenzi Barrett, W. Kip Viscusi

SMU Law Review

A frozen embryo represents not merely a potential human life but a deferred decision to trigger this potential. Parties value this opportunity for deferral because it allows them to retain the option to attempt conception after any uncertainty about future events or desires has resolved. Failing to recognize this “option value” of embryos has resulted in confusion over the best approach to allocating ownership of embryos and calculating damages for reproductive harms. This Article provides a novel paradigm showing that embryos should be treated as neither persons nor mere property; instead, a significant portion of their value is in their …

The Pregnancy Draft, Meghan M. Boone

SMU Law Review

By severely limiting or outright banning abortion, states are requiring pregnant people to perform reproductive labor in the service of the state’s own interests. Unwilling pregnant people are compelled, through the force of law, to continue their pregnancies—to perform a task that is difficult, dangerous, and fundamentally alters their life’s course. The state justifies overcoming the pregnant person’s unwillingness by prioritizing its own interests in the continuation of the pregnancy—articulated at various times as an interest in potential life, the protection of health or the integrity of the medical profession, or the prevention of discrimination.

There is only one other …

Racing To Safety: Tax Policy For Ai Safety-By-Design, Mirit Eyal-Cohen, Yonathan Arbel

SMU Law Review

The White House recently announced its vision of artificial intelligence (AI) policy: AI development is a race and America must win it. To that end, a new America’s AI Action Plan directs federal agencies and states to remove regulatory barriers to AI development and accelerate innovation. This approach leaves limited room for regulatory measures that would address the safety risks of powerful AI systems: their behavior in novel domains remains unpredictable, their decision-making opaqueness, and their alignment with human values is uncertain. While experts warn of large-scale accidents, policymakers find themselves in a bind: Regulate AI and cede ground to …

Beyond Hipaa: The Ftc’S Expanding Role In Digital Health Privacy Enforcement, Sandhya Srinivasa

SMU Science and Technology Law Review

Consumer digital health platforms have become an increasingly prominent feature of modern health care, collecting and storing sensitive health information directly from users. Yet most of these applications operate outside the scope of the Health Insurance Portability and Accountability Act (HIPAA), creating a significant regulatory gap in the protection of personal health data. This case note examines how the Federal Trade Commission (FTC) has stepped into that gap by leveraging Section 5 of the FTC Act and the Health Breach Notification Rule (HBNR) to police privacy and data security practices among non-HIPAA-covered digital health platforms. Focusing on three landmark enforcement …

The Trump Administration’S Racial Dragnet: Immigration Enforcement In Los Angeles, Kevin R. Johnson

SMU Law Review

President Trump’s mass deportation campaign selected as one of its early targets Los Angeles, California, and its large Latina/o community. Comprising roughly half of the city’s population, Latina/os are being stopped, questioned, and rounded up by roving Immigration and Customs Enforcement (ICE) patrols. A legal challenge claimed that the patrols are engaging in unlawful racial profiling on a mass scale. The litigation responds to the widespread belief among Latina/os that the Trump Administration is unduly, if not exclusively, relying on race in targeting people for questioning about their immigration status.

For years, courts and political leaders have roundly condemned racial …

Preface, Abigail Parnell

SMU Law Review

No abstract provided.

Second Looks For Sentencing Equality, Joshua D. Weiss

SMU Law Review

This Article challenges a persistent assumption about the relationship between so-called “second look” laws and sentencing disparities. Courts, the United States Sentencing Commission, and scholars tend to assume that increasing judicial discretion to reduce previously imposed sentences on an individualized basis results in increased sentencing disparities. But this assumption is based on a limited focus on disparities caused by judges and fails to account for disparities caused by other institutional actors, especially prosecutors.

This Article examines the relationship between disparities and second-look laws by focusing on one such law: the federal reduction in sentence (RIS) statute, commonly referred to as …

What Constitution? The Dual State Theory In Immigration Law & Practice, Elizabeth Keyes

SMU Law Review

Immigration law in the second Trump Administration has created profound disorientation and dissonance, where some legal matters proceed in largely familiar ways, and others seem to occur in an entirely new dimension. This Article avails itself of Ernst Fraenkel’s Dual State theory to examine this dissonance. It argues that a duality exists in U.S. immigration law today between the federal courts and the administrative immigration system. In Fraenkel’s terms, constitutional challenges to immigration policies and individual habeas cases demonstrate important features of the Normative State, one that is consistent with the Rule of Law. By contrast, the administrative system—comprising the …

Front Matter

Journal of Air Law and Commerce

No abstract provided.

Front Matter

Journal of Air Law and Commerce

No abstract provided.

What The Wild West Can Teach Us About Space Exploration, Kody George

Journal of Air Law and Commerce

Currently, the laws governing property in outer space are inadequate and underdeveloped, yet space exploration by private entities is rapidly growing. In this legal vacuum, private companies’ actions heavily influence, and in some cases, provide the basis for, legal precedent. The policies that for-profit corporations prefer are different from those that most government actors will prefer and are much different from those that support the common heritage of mankind doctrine. Rewarding entrepreneurship, innovation, and investments by governments, while balancing the interest all mankind has in outer space is why this Article proposes a tiered, patent land system that would grant …

When Planes Fall And People Die: An International And Domestic Overview Of Disaster In The Sky, Clayton Rainey

Journal of Air Law and Commerce

Commercial aviation disasters expose catastrophic breakdowns in engineering, regulatory oversight, corporate governance, and human systems. From the Boeing 737 MAX tragedies involving Lion Air Flight 610 and Ethiopian Airlines Flight 302 to the recent domestic crash of American Airlines Flight 5342, modern aviation disasters have become defining legal events that test the boundaries of product liability, federal preemption, sovereign immunity, and transnational treaty law. This Article examines how aviation mass-casualty events evolve into complex litigation involving aircraft manufacturers, airlines, regulatory agencies, and governmental entities, and how those legal frameworks differ in international versus domestic contexts.

Beyond legal doctrine, this Article …

Effects Of Expropriation Of Private Real Estate For Public Benefit In Saudi Law And Islamic Law, Hayat Mohammadali Hassan Nimir

Theses and Dissertations

The expropriation of private real estate for public benefit represents one of the most sensitive and complex legal issues, as it directly intersects with the protection of individual ownership rights while simultaneously addressing the demands of public interest and state development. This research provides a comprehensive analytical study of the legal framework governing expropriation in Saudi Arabia, examining both historical and contemporary legislation, while assessing its consistency with the objectives of Islamic Sharia, which grants strong protection to ownership rights but allows their restriction under strict conditions to serve genuine public needs.

The dissertation explores the theoretical foundations of property …

Striving To Thrive: Balancing Digital Health Innovation And Patient Protection Under Thailand’S Legal Framework, Thidarat Liamsomboon

Theses and Dissertations

The digitalization of health care has fundamentally transformed how health care services are accessed, delivered, and experienced worldwide. Telemedicine, artificial intelligence–assisted diagnostics, electronic health records, wearables, and mobile health applications are no longer novelties, but have become a substantial part of a modern clinical practice. Although these technologies offer great prospects for making health care more accessible, reducing administrative burden, and improving the quality of care, they also pose significant legal and regulatory challenges. The rate of technological development has far outpaced Thailand’s existing legal frameworks for regulating medical practice, professional accountability, and patient protection. This regulatory “lag” has generated …