Law Commons^™

Front Matter

SMU Law Review

No abstract provided.

Tribute To Professor William Dorsaneo, Iii, Jennifer M. Collins

SMU Law Review

No abstract provided.

Tribute To Professor Bill Dorsaneo, Elizabeth G. Thornburg

SMU Law Review

No abstract provided.

Addressing Big Tech’S Market Power: A Comparative Institutional Approach, Thomas A. Lambert

SMU Law Review

This Article provides a comparative institutional analysis of the three leading approaches to addressing the market power of large digital platforms: (1) traditional antitrust law, the approach thus far taken in the United States; (2) ex ante conduct rules, the approach embraced by the European Union’s Digital Markets Act and several bills under consideration in the U.S. Congress; and (3) ongoing agency oversight, the approach embraced by the United Kingdom with its newly established “Digital Markets Unit.” After identifying the general advantages and disadvantages of each approach, the Article examines how they are likely to play out in the context …

Tribute To William V. Dorsaneo, Iii, Chip Babcock

SMU Law Review

No abstract provided.

Solving The Procedural Puzzles Of The Texas Heartbeat Act And Its Imitators: The Potential For Defensive Litigation, Charles W. "Rocky" Rhodes, Howard M. Wasserman

SMU Law Review

The Texas Heartbeat Act (SB8) prohibits abortions following detection of a fetal heartbeat, a constitutionally invalid ban under current Supreme Court precedent. But the law adopts a unique enforcement scheme—it prohibits enforcement by government officials in favor of private civil actions brought by “any person,” regardless of injury. Texas sought to burden reproductive-health providers and rights advocates with costly litigation and potentially crippling liability.

In a series of articles, we explore how SB8’s exclusive reliance on private enforcement creates procedural and jurisdictional hurdles to challenging the law’s constitutional validity and obtaining judicial review. This piece explores defensive litigation, in which …

Front Matter

SMU Law Review

No abstract provided.

Photo Of Elizabeth G. Thornburg

SMU Law Review

No abstract provided.

Tribute To Professor Elizabeth Thornburg, Jennifer M. Collins

SMU Law Review

No abstract provided.

Tribute To Professor Beth Thornburg, Melinda Arbuckle

SMU Law Review

No abstract provided.

Tribute To Professor Beth Thornburg, William V. Dorsaneo Iii

SMU Law Review

No abstract provided.

The Boundaries Of Multi-Parentage, Jessica Feinberg

SMU Law Review

Multi-parentage has arrived. In recent years, a growing number of courts and legislatures have recognized that a child may have more than two legal parents. A number of significant societal, medical, and legal developments have contributed to the trend toward multi-parentage recognition. The traditional family structure of a married different-sex couple and their biological children currently represents only a minority of U.S. families. Stepparents, non-marital partners of legal parents, and extended family members often play a significant role in children’s lives, and it has become increasingly common for same-sex couples to welcome children into their families. In addition, advancements in …

Front Matter

SMU Law Review

No abstract provided.

Algorithmic Destruction, Tiffany C. Li

SMU Law Review

Contemporary privacy law does not go far enough to protect our privacy interests, particularly where artificial intelligence and machine learning are concerned. While many have written on problems of algorithmic bias and data deletion, this Article introduces the novel concept of the “algorithmic shadow” and explains the new privacy remedy of “algorithmic destruction,” also known as algorithmic disgorgement or machine unlearning. The algorithmic shadow describes the persistent imprint of training data that has been fed into a machine learning model and used to refine that machine learning system. This shadow persists even if data is deleted from the initial training …

The Unexpected Consequences Of Automation In Policing, Elizabeth E. Joh

SMU Law Review

This Article has two aims. First, it explains how automated decision-making can produce unexpected results. This is a problem long understood in the field of industrial organization, but identifying its effects in policing is no easy task. The police are a notoriously difficult institution to study. They are insular, dislike outsiders, and especially dislike critical outsiders. Fortunately, we have the benefit of a decade’s worth of experimentation in police use of automated decision-making and the resulting political backlash against some of these uses. As a result, some large urban police departments have undergone external investigations to see whether tools like …

Coding The Code: Catala And Computationally Accessible Tax Law, Sarah Lawsky

SMU Law Review

“Caligula posted the tax laws in such fine print and so high that his subjects could not read them . . . . That’s not a good idea, we can all agree. How can citizens comply with what they can’t see? And how can anyone assess the tax collector’s exercise of power in that setting?”

Bostock: A Clean Cut Into The Gordian Knot Of Causation, Melissa Essary

SMU Law Review

Regardless of merit, most individual employment discrimination claims die a fast death at summary judgment. Judges apply the fine mesh net created by McDonnell Douglas v. Green, and most cases are caught in its trap. This dated, obfuscatory Supreme Court case creates a complex and flawed binary approach to causation: either discrimination or an innocent reason caused an adverse employment action. For decades, all three levels of the federal judiciary have wrestled with McDonnell Douglas, creating snarls and knots in construing causation. Because of this causal confusion, the ideal of equal opportunity in employment is on life-support.

Judges and practitioners …

The Flubs That Bind: Stare Decisis And The Problem Of Indeliberate Doctrinal Misstatements In Appellate Opinions, Richard Luedeman

SMU Law Review

Speak to enough lawyers (especially litigators) about their experiences grappling with binding appellate case law in their jurisdictions, and a significant number of them will complain about statements in appellate case law that patently contradict prior precedent, incorrectly articulate legal standards, or otherwise mangle the doctrine in an area. The image of courts as deliberative doctrine-producing machines ignores the reality that certain statements in judicial opinions might not have been carefully, deliberately constructed. Often, the result is harmless. But in some instances, doubt about the deliberateness of dubious doctrinal statements in judicial opinions can become an unavoidable problem for litigants …

Ai, Equity, And The Ip Gap, Daryl Lim

SMU Law Review

Artificial intelligence (AI) has helped determine vaccine recipients, prioritize emergency room admissions, and ascertain individual hires, sometimes doing so inequitably. As we emerge from the Pandemic, technological progress and efficiency demands continue to press all areas of the law, including intellectual property (IP) law, toward incorporating more AI into legal practice. This may be good when AI promotes economic and social justice in the IP system. However, AI may amplify inequity as biased developers create biased algorithms with biased inputs or rely on biased proxies. This Article argues that policymakers need to take a thoughtful and concerted approach to graft …

Front Matter

SMU Law Review

No abstract provided.

Digital Property Law - New Structure And New Reconciliation, G.A. Walker

The International Lawyer

No abstract provided.

Annual Review Of Texas Law: Commercial Law, Sally Mcdonald Henry

SMU Annual Texas Survey

No abstract provided.

Oil, Gas, And Mineral Law, Austin W. Brister

SMU Annual Texas Survey

No abstract provided.

Wills & Trusts, Gerry W. Beyer

SMU Annual Texas Survey

No abstract provided.

William V. Dorsaneo, Iii, Nathan L. Hecht

SMU Law Review

No abstract provided.

A Tribute To Beth Thornburg, Mary Emma Karam

SMU Law Review

No abstract provided.

Integrated Nonmarital Property Rights, E. Gary Spitko

SMU Law Review

Nonmarital cohabitation has become a mainstream family structure in the United States. Yet despite the increasing prevalence of nonmarital cohabitants, American family property law generally fails to support nonmarital couples. This inequality under the law disproportionately disadvantages persons of color, those with relatively less education, and couples with relatively fewer economic resources. This Article considers the post-Obergefell need for law reform to better support nonmarital families, examines the principles that should ground nonmarital property rights reform, and proposes a novel approach to nonmarital property rights that integrates the law of dissolution with the law of succession, unifies the law …

A Functional Approach To Agency (In)Action, Lidiya Mishchenko

SMU Law Review

In the last five years, the Supreme Court has had a frenzied approach to judicial review of agency action, with two wings of the Court pulling it in opposite directions. The ideological divide of the Court on deference to agency action was on stark display in three recent cases dealing with the Patent and Trademark Office’s (PTO’s) new proceeding for reevaluating issued patents (inter partes review (IPR)). Specifically, in three vacillating opinions, the Court expanded, contracted, and then again expanded the scope of whether and to what extent a decision by the PTO Director to institute this new proceeding can …

The Whole Truth: A Tribute To Professor Beth Thornburg, Julia Patterson Forrester Rogers

SMU Law Review

No abstract provided.

Working Toward Break Point: Professional Tennis And The Growing Problem With Employee And Independent Contractor Misclassifications, Elizabeth Priest

SMU Law Review

An often overlooked yet extremely pressing issue in the U.S. economy is the misclassification of workers as independent contractors when they are actually employees. Because of such misclassifications, workers are denied their rights to federal antidiscrimination protections and the ability to collectively bargain through unions. Courts across the country utilize a variety of legal tests to determine if a worker is an employee or an independent contractor. The three most important legal tests are the right to control test, the economic realities test, and the ABC test.

Using men’s professional tennis as a case study, this Comment argues for the …