Law Commons^™

Front Matter

SMU Law Review

No abstract provided.

Joseph Webb Mcknight (Obituary Originally Printed In The Magdalen College Record), William Bridge, Gregory Ivy

SMU Law Review

No abstract provided.

Second Amendment: D.C. Circuit Court Creates Split On The Constitutionality Of Good-Reason Laws, Madeleine Giese

SMU Law Review

No abstract provided.

Constructive Ambiguity And Judicial Development Of Insider Trading, Jill E. Fisch

SMU Law Review

The Texas Gulf Sulphur decision began what has become a fifty-year project of developing U.S. insider trading regulation through judicial law- making. During the course of that project, the courts developed a complex, fraud-based approach to determining the scope of liability. The approach has led, in many cases, to doctrinal uncertainty, a result that is reflected in the recent decisions in Newman, Salman, and Martoma.

In the face of this uncertainty, many commentators have called for a legislative solution. This article argues, however, that the true challenge of insider trading regulation is a lack of consensus about the appropriate scope …

Texas Gulf Sulphur And The Genesis Of Corporate Liability Under Rule 10b-5, Adam C. Pritchard, Robert Thompson

SMU Law Review

This Essay explores the seminal role played by SEC v. Texas Gulf Sulphur Co. in establishing Rule 10b-5’s use to create a remedy against corporations for misstatements made by their officers. The question of the corporation’s liability for private damages loomed large for the Second Circuit judges in Texas Gulf Sulphur, even though that question was not directly at issue in an SEC action for injunctive relief. The judges considered both, construing narrowly “in connection with the purchase or sale of any security,” and the requisite state of mind required for violating Rule 10b-5. We explore the choices of the …

A Texas Two-Step In The Right Direction—Looking Beyond Recent Legislation To Improve The Provision Of Special Education Services In Texas, Taylor Michals

SMU Law Review

This article analyzes the current state of the special education system in Texas following the 85th Legislative Session, focusing on the practical and legal implications of the limitation imposed by the Texas Education Agency in 2004 before analyzing Senate Bill 160, which requires Texas to remove the limitation on special education services, and its future impact on special education in Texas. Additionally, this article addresses Senate Bill 927, which outlined a plan to ensure that students who were previously denied services receive an adequate evaluation, why the legislation failed, and potential remedies for students who have been negatively impacted by …

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 …

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 …

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.

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, …

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 …

Quarantine And The Federal Role In Epidemics, Michael R. Ulrich, Wendy K. Mariner

SMU Law Review

Every recent presidential administration has faced an infectious disease threat, and this trend is certain to continue. The states have primary responsibility for protecting the public’s health under their police powers, but modern travel makes diseases almost impossible to contain intrastate. How should the federal government respond in the future? The Ebola scare in the U.S. repeated a typical response—demands for quarantine. In January 2017, the Department of Health and Human Services and the Centers for Disease Control and Prevention issued final regulations on its authority to issue Federal Quarantine Orders. These regulations rely heavily on confining persons who may …

Panel Effects In Administrative Law: A Study Of Rules, Standards, And Judicial Whistleblowing, Morgan Hazelton, Kristin E. Hickman, Emerson Tiller

SMU Law Review

In this article, we consider whether “panel effects”—that is, the condition where the presence, or expected voting behavior, of one judge on a judicial panel influences the way another judge, or set of judges, on the same panel votes—varies depending upon the form of the legal doctrine. In particular, we ask whether the hand of an ideological minority appellate judge (that is, a Democrat-appointed judge with two Republican appointees or a Republican-appointed judge with two Democrat appointees) is strengthened by the existence of a legal doctrine packaged in the form of a rule rather than a standard. Specifically, we unbundle …

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, …

Seeking An Objective For Regulating Insider Trading Through Texas Gulf Sulphur, James D. Cox

SMU Law Review

Data summarized in the opening of this article document shows that in- side trading is a growth industry. And, as deals get ever bigger, the growth curve becomes steeper as more the data confirms intuition that the more who know about a good thing the more who will seek to harvest its bene- fits. Even though insider trading appears to have thrived during the fifty years after Texas Gulf Sulphur, we gather in this symposium to celebrate the decision. But why? As developed below, the Second Circuit’s landmark decision gave way to the Supreme Court’s erection of a fiduciary frame- …

From Texas Gulf Sulphur To Laudato Si’: Mining Equitable Principles From Insider Trading Law, Michael J. Kaufman

SMU Law Review

In SEC v. Texas Gulf Sulphur, the Second Circuit declared that all investors trading on impersonal exchanges should have equal access to material information, and therefore anyone who possesses material inside information must either turn it over to the investing public or not trade. The broad reach of that insider trading prohibition sent shock waves throughout the financial markets and encountered significant judicial resistance from the Supreme Court.

Although the Supreme Court initially rejected the insider trading prohibition announced in Texas Gulf Sulphur, the fundamental equitable trading principles underlying that decision have endured. This article shows that TGS was …

Thinking Fast And Slow About The Concept Of Materiality, Mark J. Loewenstein

SMU Law Review

Determining whether, for securities law purposes, a misrepresentation or omission is material raises interesting questions. The Court of Appeals in SEC v. Texas Gulf Sulphur Co. provided some guidance on materiality, and the U.S. Supreme Court has weighed in several times in the past 50 years. This article first discusses what Texas Gulf Sulphur contributed to the doctrine of materiality, then briefly considers other dimensions of the doctrine, and finally moves to its thesis: The doctrine of materiality should take into account important psychological insights and heuristics that may affect the way that a fact finder decides whether a misrepresentation …

Policing Narrative, Tal Kastner

SMU Law Review

Counter narrative, a story that calls attention to and rebuts the presumptions of a dominant narrative framework, functions as an essential tool to reshape the bounds of the law. It has the potential to shape the collective notion of what constitutes legal authority. Black Lives Matter offers a counter narrative that challenges the characterization of the shared public space, among other aspects of contemporary society, as the space of law. Using the concept of necropower—the mobilization and prioritization of the state’s power to kill—I analyze the contested physical and conceptual space of law exposed by the counter narrative of Black …

“Heal Thyself.”—An Argument For Granting Asylum To Healthcare Workers Persecuted During The 2014 West African Ebola Crisis, Bethany Echols

SMU Law Review

This article argues for a change in United States asylum policy at a time when change is needed most. Those seeking asylum must prove that they fear persecution in their home country based on one of five protected categories and that their government is the persecutor or is unable to control the actions of the persecutors. Multiple articles have recognized that the “particular social group” is the most difficult category of asylum seeker to analyze. Not only do the standards for particular social groups (PSGs) vary among circuit courts, but judicial consistency is lacking.

This article focuses on a particular …

Front Matter

SMU Law Review

No abstract provided.

Joseph W. Mcknight: Antiquarian Law Book Collector Extraordinaire, Gregory Ivy

SMU Law Review

No abstract provided.

Remembering Professor Joseph Mcknight, Leland L. Coggan

SMU Law Review

No abstract provided.

Joe Mcknight: Friend, Mentor, Scholar & Legend, Brian L. Webb

SMU Law Review

No abstract provided.

Why Do Bad Antitrust Decisions Sometimes Make Good Law? The Alcoa And Brown Shoe Examples, C. Paul Rogers Iii

SMU Law Review

Do bad antitrust decisions, as based on their facts, sometimes make good law? That is, do wrongly decided antitrust cases, when considered on their merits, sometimes have a lasting impact on the law even though the decision by most accounts should simply be overruled? If so, why do cases in such disrepute on their merits have such staying power, particularly when so much early antitrust precedent is simply ignored today? The Author examines two cases, United States v. Aluminum Co. of America (Alcoa) and Brown Shoe Co. v. United States, as examples of this phenomenon.