Law Commons^™

Tiktok’S Fall From Grace: How Growing Security Concerns In Chinese Technology Affect U.S. Courts And Presidential Successors, Madeline Cartwright

SMU Science and Technology Law Review

In recent years, the United States government has warned that China may use Chinese companies as a vehicle for infiltrating American data security. The U.S. first acted on this warning in 2017 when it effectively banned Huawei—one of the world’s largest telecom companies—from the U.S. market. Then-president Donald Trump subsequently turned the controversy to the popular social media app, TikTok, in an attempted ban over alleged privacy issues. Personal data collection and the legal implications behind trying to ban China-linked apps is an increasingly controversial topic in American politics. This article assesses the lawsuits following these groundbreaking governmental movements, including …

Insurance Law, J. Price Collins, Janet Tolbert, Ashley Gilmore

SMU Annual Texas Survey

This Article describes and analyzes major developments in insurance law that occurred in Texas between December 1 and November 30 of 2022.

Front Matter

SMU Law Review

No abstract provided.

Professor John S. Lowe: A Master Teacher Who Never Doubted The Confidence Of His Convictions Even When He Was Wrong!, Owen L. Anderson

SMU Law Review

No abstract provided.

A Tribute To Professor John S. Lowe, Eric C. Camp

SMU Law Review

No abstract provided.

Ode To John Lowe, Norman Nadorff

SMU Law Review

No abstract provided.

Tribute To John Lowe On His Retirement, David Pierce

SMU Law Review

No abstract provided.

Fracture: Abortion Law And Politics After Dobbs, Rachel Rebouché, Mary Ziegler

SMU Law Review

Before Dobbs v. Jackson Women’s Health Organization—the case that overturned Roe v. Wade—almost everyone assumed that polarization would continue to define the abortion debate: once states could ban abortion before viability, half the country would criminalize it and half the country would not. The assumption has been that states would prohibit or permit abortion in ways that correspond to political beliefs. This Article demonstrates the limitations of that narrative both as a matter of history and in the current political moment. The future of abortion law and politics is one of fracture. Particularly for the anti-abortion movement, once-foundational priorities will …

The Ripple Effects Of Dobbs On Health Care Beyond Wanted Abortion, Maya Manian

SMU Law Review

The Supreme Court’s momentous decision in Dobbs v. Jackson Women’s Health Organization to overturn fifty years of precedent on the constitutional right to abortion represents a sea of change, not only in constitutional law, but also in the public health landscape. Although state laws on abortion are still evolving after Dobbs, the decision almost immediately wreaked havoc on the delivery of medical care for both patients seeking abortion care and those not actively seeking to terminate a pregnancy. This Article also argues that focusing the public’s attention on the deleterious consequences of abortion bans for health care beyond wanted abortion …

The Promise Of Abortion Pills: Evidence On The Safety And Effectiveness Of Self-Managed Medication Abortion And Opportunities To Expand Access, Dana M. Johnson

SMU Law Review

Since the Dobbs v. Jackson Whole Women’s Health Organization ruling, medication abortion pills have received an enormous amount of attention. The two medication abortion pill regimens, mifepristone used with misoprostol, or misoprostol used by itself, have been the subject of extensive public health research. Less discussed in the legal scholarship are the differences between the two regimens and their uses for self-managed medication abortion. In the United States, when people refer to medication abortion pills, they are often referencing mifepristone used with misoprostol. But in other parts of the world, when people refer to medication abortion pills, they often mean …

Front Matter

SMU Law Review

No abstract provided.

Innovation Funding And The Valley Of Death, Lital Helman

SMU Law Review

Innovation is a public good. As with other public goods, it is expected to be underproduced if only private incentives are present. Therefore, the law strives to encourage innovation via an array of stimulus mechanisms. The law offers three main mechanisms: intellectual property (IP), cash transfers—mainly prizes and grants—and tax incentives. Vast literature analyzes and compares these innovation stimuli in search of the optimal mix to boost innovation. Yet a key problem is largely overlooked: together, the existing stimuli do not cover the lion’s share of the innovation lifecycle. At the beginning of the innovation process, companies can win grants …

Warranted Exclusion: A Case For A Fourth Amendment Built On The Right To Exclude, Mailyn Fidler

SMU Law Review

Searches intrude; fundamentally, they infringe on a right to exclude. So that right should form the basis of Fourth Amendment protections. Current Fourth Amendment doctrine—the reasonable expectation of privacy test—struggles with conceptual clarity and predictability. The Supreme Court’s recent decision to overturn Roe v. Wade casts further doubt on the reception of other privacy-based approaches with this Court. But the replacement approach that several Justices on the Court favor, what I call the “maximalist” property approach, risks troublingly narrow results. This Article provides a new alternative: Fourth Amendment protection should be anchored in a flexible concept derived from property law—what …

Front Matter

SMU Law Review

No abstract provided.

The Future Of Substantive Due Process: What Are The Stakes?, Erwin Chemerinsky

SMU Law Review

No abstract provided.

Right To Counsel In Civil Cases: Protector (And Source?) Of Substantive Due Process Rights, John Pollock

SMU Law Review

No abstract provided.

Challenges In Substantive Due Process Litigation, Nancy Leong

SMU Law Review

This Article presents the results of an empirical examination of litigation involving substantive due process claims. I have compiled a dataset consisting of every case in which a federal appellate court adjudicated a substantive due process claim during the year 2019—a total of 98 cases. This census yields important information about the context in which substantive due process rights are litigated and articulated within our civil rights enforcement scheme. As a threshold matter, I show that 92% of substantive due process cases come to the federal appellate courts as actions brought under 42 U.S.C. § 1983. This information underscores that, …

Secrecy And Transparency In Substantive Due Process Litigation, Dustin B. Benham

SMU Law Review

A few years before the recomposed Court rejected abortion rights in Dobbs, it sustained several healthcare providers’ challenge to Louisiana abortion restrictions in June Medical. History will remember that 5–4 decision mostly as one of the last major cases to interpret and apply the Casey framework.

But in the little-noticed background of the June Medical litigation, a significant dispute over sealed court records boiled over. On one side, plaintiff physicians sought anonymity and confidentiality in light of potential threats to their physical safety and patient privacy. On the other side, Louisiana asserted the public’s longstanding right to access court records …

State Constitutional Rights, State Courts, And The Future Of Substantive Due Process Protections, Jonathan L. Marshfield

SMU Law Review

By most accounts, the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization signaled a broader stagnation (and perhaps retrenchment) of federal substantive due process protections. As a result, there is now great interest in the role that state constitutions and courts might play in protecting and expanding reproductive and privacy rights. This Article aims to place this moment in state constitutional development in broader context. It makes two core claims in this regard. First, although state courts are free to interpret state constitutions as providing broader individual rights protections than those contained in the Federal Constitution, state constitutions …

From Liberation To (Re)Criminalization: Dobbs V. Jackson Women’S Health Organization, Bodily Autonomy, And The Expansion Of State Rights, Robin S. Maril

SMU Law Review

For more than a generation, the U.S. Supreme Court recognized the constitutionally protected right to an abortion, and, in turn, the dignity-affirming power of reproductive autonomy and its role in designing one’s own destiny. The Court’s endorsement of the liberatory value of bodily autonomy in Roe v. Wade, as later affirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey, rejected attempts to justify restrictive prohibitions on abortion as valid exercises of state police powers. However, the Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization threatens to fundamentally redefine the boundaries between the rights of individuals and those of …

Death After Dobbs, Kathy L. Cerminara

SMU Law Review

Courts have recognized that decisions about medical care near the end of life enjoy both common law and constitutional protections since the 1970s, when patients, their families, and the medical establishment invited legal input into those intensely private discussions. In Cruzan v. Director, Missouri Department of Health, the U.S. Supreme Court famously “strongly assumed” that substantive due process protected decisions to withhold or withdraw such treatment as arising from a fundamental liberty interest. Beginning on June 24, 2022, however, the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization prompted concern over whether substantive due process protection for end-of-life …

Renewing Educational Autonomy, Johanna Kalb

SMU Law Review

American colleges and universities are facing an unprecedented wave of state legislative actions calling into question the freedom that these institutions have long enjoyed, as well as their ability to serve increasingly diverse student populations. Current constitutional protections for academic freedom under the First Amendment are proving an inadequate defense from these types of incursions. This Article argues for a reexamination and reinvigoration of a constitutional theory of educational autonomy protected by substantive due process, drawing on both the pre-colonial models that informed the creation of American colleges, as well as the earliest cases involving state efforts to control them. …

Front Matter

SMU Law Review

No abstract provided.

Failures In The “Laboratories Of Democracy” And Democratic Due Process As Constitutional Guardrails, Matthew C. Clifford, F. Paul Bland Jr.

SMU Law Review

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court reversed decades of precedent supporting a substantive due process right to abortion under the Fourteenth Amendment, and purported to return the question of reproductive autonomy to the “democratic process” in the states. Justice Thomas, writing in concurrence, militated for reconsidering all of the Court’s substantive due process precedents. In today’s era of democratic backsliding, these are dangerous pronouncements with grave, if not existential, implications for democracy in the United States. The Dobbs majority hazardously asserted that state-level abortion legislation would, in fact, be the result of a democratic process. …

The Ultimate Metaverse Match: An Analysis Of First Amendment Protections And Unauthorized Trademark Use In Non-Fungible Tokens, Alena Khan

SMU Law Review

The First Amendment has long provided protections for artists’ creative expression and is a fundamental right for all United States citizens. However, with the rise of a predominantly digital world, those protections begin to blur with the introduction of non-fungible tokens (NFTs). Artistic creation often stems from an inspired source, and sometimes, that inspiration may come from registered intellectual property, specifically trademarks. Trademarks are everywhere we look, so it is not unusual for artists to be inspired by the logos, images, colors, figures, or symbols that are featured on billboards, magazine covers, or everyday items. When these trademarks are used …

Wills & Trusts, Gerry W. Beyer

SMU Annual Texas Survey

This article discusses developments relating to the Texas law of intestacy, wills, estate administration, trusts, and other estate planning matters during the Survey period of December 1, 2021, through November 30, 2022. The reader is warned that not all cases decided during the Survey period are presented, and not all aspects of each case are analyzed. You must read and study each case’s full text before relying on it or using it as precedent. The discussion of most cases includes a moral, that is, the important lesson to be learned from the case. By recognizing situations that resulted in time-consuming …

Partnership Law, Troy Christensen, Jeff Dorrill, Matthew Schindel, Madeline Ballard, James Barnett

SMU Annual Texas Survey

This Article describes and analyzes major developments in partnership law that occurred in Texas between December 1 and November 30 of 2022.

Oil, Gas & Mineral Law, Austin W. Brister, Logan Jones

SMU Annual Texas Survey

This Article summarizes, sorts, and discusses the most impactful cases relating to oil, gas, and mineral law in Texas decided by the Texas Courts of Appeals and the Texas Supreme Court during the Survey period.

A Tribute For Professor Lowe, James W. Coleman

SMU Law Review

No abstract provided.

A Review And Look Ahead At Criminalizing Pregnancy In The Name Of State Interest In Fetal Life, Sarah E. Burns, Sarah S. Wheeler

SMU Law Review

Across the United States, and especially in communities that are highly policed and in places hostile to abortion, pregnant people are dying, suffering, being separated from their children and families, and going to jail and prison in purported service of the state interest in fetal life recognized in Roe v. Wade and expanded in Planned Parenthood of Pennsylvania v. Casey. This Article focuses on two common practices that cause these harms: criminalizing pregnant people and denying them medical decision-making authority. While these practices are not new, the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization is …