Law Commons^™

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.

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 …

Boss Mom: Why Texas Should Revise Its Legislation To Allow Gestational Surrogacy Contract Enforcement For Social Surrogacies, Krista Thompson

SMU Law Review

Career-driven women have consistently been forced to choose between their careers and creating a family. However, with the use of reproductive technology, this is no longer necessary. In recent years, fertile women have been looking to gestational surrogacy as a pregnancy alternative. These women are opting to use surrogates not be- cause they cannot bear a child but because being pregnant is not feasible for their careers. These surrogacies have been termed “social surrogacies.” However, surrogacy laws throughout the United States are diverse and complicated, and many do not allow for the enforcement of social surrogacy contracts. These states, particularly …

Combatting Ai’S Protectionism & Totalitarian-Coded Hypnosis: The Case For Ai Reparations & Antitrust Remedies In The Ecology Of Collective Self-Determination, Maurice Dyson

SMU Law Review

Artificial Intelligence’s (AI) global race for comparative advantage has the world spinning, while leaving people of color and the poor rushing to reinvent AI imagination in less racist, destructive ways. In repurposing AI technology, we can look to close the national racial gaps in academic achievement, healthcare, housing, income, and fairness in the criminal justice system to conceive what AI reparations can fairly look like. AI can create a fantasy world, realizing goods we previously thought impossible. However, if AI does not close these national gaps, it no longer has foreseeable or practical social utility value compared to its foreseeable …

Diligent Zero, Frédéric G. Sourgens

SMU Law Review

Energy transition policies will soon transform the backbone of our globalized economy. Problematically, leading policymakers advocate for a form of energy system shock therapy: they argue we should abandon fossil fuels to achieve net zero greenhouse gas emissions as soon as technically feasible. Because current energy systems have deep structural importance for our daily lives and determine everything from where we live to how we work, such shock therapy has potentially catastrophic economic, social, and cultural consequences around the world. I argue that we can achieve meaningful energy transition success without such catastrophic consequences if we pivot from a net …

In Appreciation Of Professor Bill Dorsaneo, David Crump

SMU Law Review

No abstract provided.

The Law’S Role In Ending The Suicide Crisis: Liability For Suicide Under The State-Created Danger Doctrine, Brittany White

SMU Law Review

The mounting prevalence of suicides in the United States has translated into a full-fledged, nationwide suicide crisis, impacting the lives of far too many. Even if an individual is fortunate enough never to have directly endured the tragedy of losing a loved one to suicide, they have certainly been exposed to this crisis through ever-frequent media reports of suicides. Given the widespread and detrimental nature of this crisis, it is imperative that prompt action is taken by individuals and institutions across a multitude of disciplines, the law notwithstanding. Indeed, the force of law itself implies that certain faculties possessed by …

Expanding Civil Rights To Combat Digital Discrimination On The Basis Of Poverty, Michele Estrin Gilman

SMU Law Review

Low-income people suffer from digital discrimination on the basis of their socio-economic status. Automated decision-making systems, often powered by machine learning and artificial intelligence, shape the opportunities of those experiencing poverty because they serve as gatekeepers to the necessities of modern life. Yet in the existing legal regime, it is perfectly legal to discriminate against people because they are poor. Poverty is not a protected characteristic, unlike race, gender, disability, religion or certain other identities. This lack of legal protection has accelerated digital discrimination against the poor, fueled by the scope, speed, and scale of big data networks. This Article …

May I Use The Restroom? The Supreme Court’S Likely Opportunity To Define “Sex” In Title Ix And End The Transgender Bathroom Debate, Kaleb Degler

SMU Law Review

The Supreme Court’s landmark decision in Bostock, which established that “sex” under Title VII includes gender identity and sexual orientation, now protects LGBTQ+ persons from discrimination in the workplace. However, this interpretation of “sex” was not subsequently applied wholesale to “sex” under Title IX, leaving many LGBTQ+ students—particularly transgender students—subject to the fate of where they were born and the shifting tides of the federal executive. Beginning with the Obama Administration, a history of conflicting guidance and opinion letters has dominated the discussion on whether transgender students are allowed to use the restroom that corresponds with their gender identity.

In …

The Case For The Abolition Of Criminal Confessions, Guha Krishnamurthi

SMU Law Review

Confessions have long been considered the gold standard of evidence in criminal proceedings. But in truth, confession evidence imposes significant harms on our criminal justice system, through false convictions and other violations of defendants’ due process and moral rights. Moreover, our current doctrine is unable to eliminate or even curb these harms.

This Article makes the case for the abolition of confession evidence in criminal proceedings. Though it may seem radical, abolition is sensible and best furthers our penological goals. As a theoretical matter, confession evidence has low probative value, but it is prejudicially overvalued by juries and judges. Consequently, …

Contract Law’S “Too Good To Be True” Doctrine—Is It?, William A. Drennan

SMU Law Review

In a wonderful variety of emotionally charged contract law opinions, including the cases of the boastful cheater, the opportunistic attorney, and the careless concrete contractor,3 courts unfortunately have used the phrase “too good to be true” as a single-step test to decide enforceability. These cases can generate emotional responses ranging from empathy4 to schadenfreude5 because they involve a mistake with potentially disastrous results for one party (and a windfall for the other side). It is understandable that courts would be drawn to a catchy, down-to-earth phrase to reach a just resolution in these entertaining and memorable cases.

Nevertheless, this Article …

Compelling Code, Nicole Ligon

SMU Law Review

Does the First Amendment protect computer code from being compelled by the government? As society becomes more reliant on coded devices— like pacemakers, insulin pumps, and even some baby bassinets—courts will need to grapple with this question. In considering compulsions related to code, this Article concludes that intermediate scrutiny is almost always the appropriate standard of review. Rather than expressing a particular viewpoint, code generally constitutes a functional and neutral script. Given that a machine’s interpretation of code generally results in an objective action, not a subjective belief, the government need only show in most instances that the compulsion furthers …

Psychologically Bound: Why Expert Evidence Regarding Battered Woman Syndrome Should Be Admissible, Christa Bunce

SMU Law Review

The affirmative defense of duress was created to protect a person coerced into committing a violent physical crime. Alongside duress, battered woman syndrome (BWS) is a psychological theory created to explain why women choose to kill abusive partners rather than leave them. Although BWS is a well-known and supported legal theory, historically, courts have been reluctant to allow expert evidence regarding the syndrome into testimony to help explain a battered woman’s behavior. Battered women have been so subjected to abuse and violence that their psychological perception is altered. In cases where expert evidence has been admitted, it profoundly affected jurors’ …

Tribute To Elizabeth G. Thornburg, Tom Melsheimer

SMU Law Review

No abstract provided.

When Time Stands Still: Eliminating Immigration “Death Sentences”, Lori A. Nessel

SMU Law Review

The nation prides itself on the notion of rebirth—the ideal that one can leave their past behind, come to the United States, and seize the opportunities available to advance and remake oneself. Yet, when it comes to immigration law, neither the passage of time nor a life full of positive equities ameliorates past wrongdoing or allows for future opportunities. In the words of the Senate Subcommittee when Congress permanently removed the statute of limitations for deportation from the Immigration and Nationality Act in 1952, “If the cause for exclusion existed at the time of entry, it is believed that such …

On The Broadness Of The Fourth Amendment, Janine Kim

SMU Law Review

This Article considers the role of property rights in defining Fourth Amendment searches. Since United States v. Jones in 2012, the Supreme Court has relied on both privacy and property to determine whether a Fourth Amendment search has occurred. But recently, many of the Justices have expressed increasing skepticism about not only the effectiveness but also the appropriateness of safeguarding privacy. The 2018 case of Carpenter v. United States, which ruled that an individual’s cell site location information is protected under the Fourth Amendment, saw all four dissenters urging a larger role for property rights in the analysis of a …

Taxing Employers For Imposing Mandatory Arbitration, Class Action Waiver, And Nondisclosure Of Dispute Provisions, Rebecca N. Morrow

SMU Law Review

Employers impose coercive dispute resolution terms on their employees more frequently, more broadly, and with greater legal success than ever before. Recent survey data indicates that mandatory employment arbitration provisions bind more than 60 million American workers—over half of the U.S. private-sector nonunion workforce. Employment class action waivers bind nearly 25 million American workers. In 2018, the Supreme Court held 5–4 that mandatory arbitration provisions and class action waivers imposed by employers on their employees do not violate the National Labor Relations Act. These terms prohibit employees from exposing employer wrongdoing in open court, bar employees with valid wage and …

Barring Immoral Speech In Patent And Copyright, Ned Snow

SMU Law Review

In the past three years, the Supreme Court has twice ruled that Congress’s moral bars to trademark protection violate the First Amendment. Those rulings raise a simple question in other areas of intellectual property. Does the First Amendment preclude Congress from denying patent or copyright protection based on a moral reason? Congress, for instance, might deny patent protection for inventions directed toward the consumption of marijuana. Inventors would accordingly choose not to disclose knowledge about those inventions to the public, and the denial would chill their speech. Similarly, Congress would chill speech if it denied copyright protection for moral reasons. …