Law Commons^™

Using Extrinsic Evidence To Excuse A Liability Insurer’S Duty To Defend, Douglas R. Richmond

SMU Law Review

Most Americans and American businesses purchase liability insurance to protect against financial loss should they ever be sued. In furnishing this protection, liability insurers contractually promise policyholders that they will defend them against lawsuits seeking covered damages and indemnify them for such damages up to the policy limits. As important as the insurer’s promise of indemnification is to an insured, the insurer’s agreement to defend the insured in litigation is an equally essential aspect of the liability insurance bargain. An insurer must decide whether it has a duty to defend its insured at the outset of a case. There are …

Tribute To Professor Roy Anderson, Timothy Davis

SMU Law Review

No abstract provided.

Roy Ryden Anderson: A Tribute To An Smu Legend, C. Paul Rogers Iii

SMU Law Review

No abstract provided.

Thoroughly Modern Motherhood, Joanna Grossman

SMU Law Review

No abstract provided.

Biology And Illegitimacy, Douglas Nejaime

SMU Law Review

This symposium Essay examines how biological parenthood, which in the twentieth century served as a mechanism by which to repudiate “illegitimacy” and to protect nonmarital parent–child relationships, today serves to justify new forms of illegitimacy and to separate unmarried parents from their children.

In the second half of the twentieth century, courts and legislatures renounced the discriminatory regime of illegitimacy, in which the children of unmarried parents enjoyed few rights to support or inheritance. They did so by raising the legal status of biological parenthood—extending rights to unmarried biological fathers and their children. Today, though, the vindication of biological ties …

Front Matter

SMU Law Review

No abstract provided.

The Racial Architecture Of Criminal Justice, Bennett Capers

SMU Law Review

One of the pleasures of contributing to symposia—especially symposia where each contribution is brief—is the ability to engage in new explorations, test new ideas, and offer new provocations. I do that now in this essay about race, architecture, and criminal justice. I begin by discussing how race is imbricated in the architecture of courthouses, the quintessential place of supposed justice. I then take race and architecture a step further. If we think of architecture expansively—Lawrence Lessig’s definition of architecture as “the physical world as we find it” comes to mind—then it becomes clear that race is also imbricated in the …

Beyond Transparency: Police Union Collective Bargaining And Participatory Democracy, Walter Katz

SMU Law Review

Police unions rose in power partially in response to the civil unrest in urban neighborhoods in the 1960s. As unions gained political power, critics argue that they have frequently stood as obstacles to accountability-related reforms. One vehicle of the exercise of such power is through

collective bargaining agreements negotiated between unions and public bodies representing cities and counties. Contracts that civilian policymakers negotiate with police unions shield officers from accountability for misconduct and excessive force. Through a lack of political will, expediency, and a lack of public transparency during negotiations, civilian leaders agree to contracts that, for example, erect obstacles …

Reforming State Bail Reform, Shima Baughman, Lauren Boone, Nathan Jackson

SMU Law Review

We are waist-deep in the third wave of bail reform. Scholars, policy makers, and the public have realized that the short period of detention before trial creates ripple effects on a defendant’s judicial fate and has lasting impacts on our system of mass incarceration. Over 200 proposed bail bills are pending throughout the states. This is not the first period of bail reform in America—two previous waves of bail reform in the 1960s and 1980s have both ended in increased pretrial detention for defendants. Some of the recent efforts in the third wave of bail reform have also increased detention …

Victims’ Rights In The Diversion Landscape, Kay L. Levine

SMU Law Review

In this Article, I explore the practical and theoretical conflicts that might surface when the diversion movement and the Victims’ Rights Movement intersect. I focus on two possible sites of tension: victim input into the diversion offer and the victim’s right to receive restitution as a term of diversion. Protocols to give victims greater voice in the justice process have been a mainstay of the burgeoning Victims’ Rights Movement for the past several decades, but I argue that those protocols must be understood within (and thus limited by) the contexts of fiscal responsibility, compassion for the offender, and proportionality in …

Let’S Move Criminal Justice Reforms Upstream: A Perspective From The Bench, Bridget Mccormack

SMU Law Review

“[S]ometimes it feels like this. There I am standing by the shore of a swiftly flowing river and I hear the cry of a drowning man. So I jump into the river, put my arms around him, pull him to shore and apply artificial respiration. Just when he begins to breathe, there is another cry for help. So I jump into the river, reach him, pull him to shore, apply artificial respiration, and then just as he begins to breathe, another cry for help. So back in the river again, reaching, pulling, applying, breathing and then another yell. Again and …

Jeff Gaba Tribute, Cindy Bishop

SMU Law Review

No abstract provided.

Kisor’S Chaos: Conflicting Meanings Of The Clean Air Act’S “Applicable Requirements” In The Fifth And Tenth Circuits, Marissa Corry

SMU Law Review

“Although [the administrative state] [is] . . . unrecognized by the Constitution, it has become the government’s primary mode of controlling Americans, and it increasingly imposes profound restrictions on their liberty.” As this statement suggests, administrative agencies wield immense power and influence over the everyday lives of American citizens. In recent years, concern about the extensive power of the administrative state has led courts, policymakers, and the public to advocate for enhanced constraints on administrative agencies.

One such constraint is allowing courts to determine the meaning of a statute or regulation instead of deferring to an agency’s interpretation of such …

Slavery And The Postbellum University: The Case Of Smu, Lolita Buckner Inniss, Skyler Arbuckle

SMU Law Review

People who practiced slavery across the United States, or engaged in slavery-related practices, were often the same civically-minded social, legal, and economic leaders who founded the nation’s first colleges and universities. There was, thus, from our earliest times, an unacknowledged but firm tie between the values and high ideals of the academy that existed in stark contraposition to the horrors of human bondage that fueled those institutions. Many North American colleges founded before the Civil War relied on money derived from the elite members of society with direct involvements in slavery. While a growing body of scholarly work discusses early …

How Analogizing Socio-Legal Responses To Organ Transplantation Can Further The Legalization Of Reproductive Genetic Innovation, Myrisha S. Lewis

SMU Law Review

The Nobel Foundation emphasized the significance of genetic innovation to society, science, and medicine by awarding the 2020 Nobel Prize in Chemistry to “the CRISPR/Cas9 genetic scissors.” This Article focuses on “reproductive genetic innovation,” a term that includes cytoplasmic transfer, mitochondrial transfer, and germline or heritable gene editing techniques that are all categorized as “experimental” in the United States. These techniques all use in vitro fertilization, a legal and widely available practice. Yet reproductive genetic innovation has resulted in controversy and numerous barriers including a recurring federal budget rider, threats of federal enforcement action, and the unavailability of federal funding. …

Front Matter

SMU Law Review

No abstract provided.

No Name, Lawrence M. Friedman

SMU Law Review

No abstract provided.

Tribute To Professor Jeff Gaba, Jennifer M. Collins

SMU Law Review

No abstract provided.

Power And Procedure In Texas Bail-Setting, Amanda Woog, Nathan Fennell

SMU Law Review

As advocates’, lawyers’, and legislators’ bail reform efforts intensify in Texas and throughout the country, we consider the limits of pretrial procedural protections when judges do not follow the law, access to courts is limited, and people do not have quality assistance of counsel. Given this reality in most bail-setting courts in Texas, formal procedural requirements, like mandating that bail-setting magistrates consider certain factors when making initial bail decisions, do not achieve their promise. More than a procedural or legal problem to be addressed, we consider the nation’s addiction to pretrial detention as one that was created by—and must be …

Achieving Privacy, Anupam Chander, Meaza Abraham, Sandeep Chandy, Yuan Fang, Dayoung Park, Isabel Yu

SMU Law Review

Is privacy a luxury for the rich? Remarkably, there is a dearth of literature evaluating whether data privacy is too costly for companies to implement or too expensive for governments to enforce. This paper is the first to offer a review of the costs of compliance and to summarize national budgets for enforcement. Our study suggests that, while privacy may indeed prove costly for companies to implement and may present a special burden for small and medium-sized businesses, it is not too costly for governments to enforce. Indeed, the European Union, seen as a global champion of privacy, expends less …

“Victims’ Rights” And Diversion: Furthering The Interests Of Crime Survivors And The Community, Miriam Krinsky, Liz Komar

SMU Law Review

Against the backdrop of the prosecutorial reform movement, this Article explores the origins of the tensions between victims’ rights and criminal justice reform efforts and argues that while victims’ rights may be in tension with diversion in some individual cases, the broader needs and interests of crime survivors do not conflict with decarceral diversion and deflection strategies. The Article describes the growing movement toward diversion among reform prosecutors and briefly recounts the history of the victims’ rights movement and “tough-on-crime” politics. The Article then discusses the demographics of crime survivors, who are disproportionately from the communities most harmed by “tough …

Professor Roy Ryden Anderson, Jennifer M. Collins

SMU Law Review

No abstract provided.

Front Matter

SMU Law Review

No abstract provided.

A Heartfelt Tribute To Jeff Gaba, Julia Patterson Forrester Rogers

SMU Law Review

No abstract provided.

From Protecting Water Quality To Protecting States’ Rights: Fifty Years Of Supreme Court Clean Water Act Statutory Interpretation, Stephen Johnson

SMU Law Review

In 1972, a bipartisan Congress enacted the Clean Water Act “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Almost fifty years have passed since Congress enacted the law, and during that time, the Supreme Court has played a significant role in the administration and evolution of the law. Since the dawn of the environmental era in the 1970s, the Supreme Court has heard more cases involving the Clean Water Act than any other environmental law. However, the manner in which the Court has analyzed the law has changed substantially over the last half century. …

The Constitutional Basis For Inmate Gender Confirmation Surgery, Bryce Couch

SMU Law Review

Transgender refers to “people whose gender identity, gender expression, or behavior does not conform to what is socioculturally accepted as, and typically associated with, the legal and medical sex to which they were assigned at birth.” Despite representing a small percentage of the U.S. population (0.58%), the transgender community is disproportionately represented in the prison system. Studies suggest that one-in-six transgender people (16%) have been incarcerated in their lifetime, compared to 2.8%–6.6% of the general U.S. population. In total, transgender individuals comprise 0.24% of the U.S. prison and jail population.

Unfortunately, research indicates that the prison system is “ill-prepared to …

A Tribute To Professor Jeff Gaba, Joseph F. Guida

SMU Law Review

No abstract provided.

Hold My Beer, Hold My Price: State Post-And-Hold Regulatory Schemes Constitute Price Fixing Preempted By Federal Antitrust Law, Kathrine Maldonado

SMU Law Review

The Supreme Court has created various tests in cases involving antitrust preemption of state regulations—such as Midcal’s state immunity two-pronged analysis and Fisher’s hybrid versus unilateral restraint test—without clarifying how the various tests fit together. This has led to circuit splits not only in regard to how courts approach antitrust preemption cases but also in regard to the preemption findings of nearly identical laws in different circuits. In a departure from the Ninth and Fourth Circuits, the Second Circuit recently upheld the validity of Connecticut’s post-and-hold alcohol pricing regulation. State post-and-hold regulations effectuate illegal price fixing between competitors …

Federal Jurisdiction As Statutory Interpretation: A Majordomo Purposivist Perspective, Martin H. Redish, Andrew F. Rodheim, Nicholas Roosevelt

SMU Law Review

The study of federal jurisdiction has traditionally involved little more than a combined examination of judicial doctrine and policy. Under this approach, scholars study how the Supreme Court has decided to shape the jurisdiction of the federal courts, and the policies the Court believes jurisdictional doctrine should reflect. Hardly ever have scholars studied the legislative purposes sought to be achieved by federal jurisdiction. It is important to recall, however, that for the most part, modern federal jurisdiction law grows out of a network of congressional statutes—which, in turn, grow out of policy choices made not by unrepresentative judges but by …

The Reform Blindspot, Irene Oritseweyinmi Joe, Shelly Richter, Dayja Tillman

SMU Law Review

The last few years have seen a marked shift in the public’s response to mass incarceration. Some state legislatures have responded by changing criminal statutes and sentencing schemes to reduce the number of people incarcerated in jails and prisons and lessen the collateral consequences faced by those previously convicted of crimes. Although these efforts are laudable, they may fail to consider the limitations imposed upon convicted persons seeking to avail themselves of these benefits without the assistance of counsel. This essay argues that, in addressing the question of how best to effectuate the progressive goals of criminal justice reform, it …