Law Commons^™

Off On A Technicality: The Proper Remedy For Improper Venue, Chris Thomson

SMU Law Review

Since its introduction to the public discourse, lawyers have admonished the pejorative phrase, “off on a technicality”—and rightfully so. However, the phrase may rightfully find application to the law’s present treatment of criminal defendants who have been convicted in improper venues. Although venue is a constitutionally necessary component of all criminal prosecutions, it does not speak to the factual guilt or innocence of a defendant. Nevertheless, in the Fifth and Eighth Circuits, defendants whose convictions stem from improper venue may be acquitted despite a jury’s finding that they committed each substantive element of the underlying offense. By contrast, the Sixth …

The Debate Over The Permissibility Of Selective Privilege Waiver Orders Under Federal Rule Of Evidence 502(D): The Crucial Scope Issues, Edward J. Imwinkelried

SMU Law Review

In the past, most common-law courts developed an intense antipathy to privileges because they perceived privileges as obstructing the search for truth. To begin with, the courts made it difficult for claimants to assert privileges by prescribing rigorous foundational requirements for privilege claims. Moreover, the courts made it easy to find a waiver. As some commentators observed, many courts took an absolutist approach and demanded that holders guard their privileges like crown jewels. For example, the courts announced that even inadvertent production of privileged material could effect a waiver, a waiver as to any privileged communication automatically extends to any …

Front Matter

SMU Law Review

No abstract provided.

Genetically Customized Generations—A Need For Increased Regulatory Control Over Gene Editing Technology In The United States, Morgan Mendicino

SMU Law Review

Gene editing technology, once a far-fetched scientific fantasy, has become a tangible reality. One emerging form of gene editing in particular, human germline genome editing, possesses revolutionary capabilities that warrant cautious examination. Recent advancements in research have demonstrated that such biotechnology could be used to alter the genetic makeup of unborn children and the hereditary genes of future generations. This biotechnology may possess the ability to save countless human lives, but we must ask—What happens when the line between preventing disease and “playing God” becomes blurry? Human germline genome editing raises a multitude of widespread and deeply rooted questions surrounding …

Beware Of The Drug Detection Dog: The Fourth Amendment, Drug Detection Dogs, And State Legalization Of Marijuana, Morgan Smith

SMU Law Review

Under current Supreme Court precedent, the “sniff” of a trained drug detection dog generally does not constitute a search within the meaning of the Fourth Amendment because of the dog’s unique ability to detect contraband items without physical intrusion. Thus, police canines have become valuable tools utilized by law enforcement since the Drug War era. Many questions have arisen, however, as to the validity of warrantless dog sniffs in states where marijuana has been legalized and thus, is no longer contraband. Further, the Supreme Court’s view that a drug dog sniff is not a search has raised concerns because it …

Imposing Identity: Why States Should Restrict Infant Intersex Surgery, Laura Sundin

SMU Law Review

Babies born with sex characteristics that do not “fit typical binary notions of male or female” are as common as babies born with red hair. These newborns may have one of many types of internal or external abnormalities, coined “intersex” conditions, such as having both an ovary and a testicle or having a large clitoris that resembles a penis. Despite their prevalence, the community of children with intersex conditions was stigmatized by prominent psychologists in the 1960s who theorized that to be “normal” the child must grow up with “unambiguous genitalia” and a binary gender identity. This theory caused fear …

Cruzan And The “Right To Die”, Thomas Wm. Mayo

SMU Law Review

No abstract provided.

Machine Learning And The New Civil Procedure, Zoe Niesel

SMU Law Review

There is an increasing emphasis in the legal academy, the media, and the popular consciousness on how artificial intelligence and machine learning will change the foundations of legal practice. In concert with these discussions, a critical question needs to be explored—As computer programming learns to adjust itself without explicit human involvement, does machine learning impact the procedural practice of law? Civil procedure, while sensitive to technology, has been slow to adapt to change. As such, this Article will explore the impact that machine learning will have on procedural jurisprudence in two significant areas—service of process and personal jurisdiction. The Article …

Down Step By Step—Ratification Of Oil And Gas Leases By Royalty Interests In Texas, Christopher S. Kulander

SMU Law Review

A sporadic series of opinions dating back seven decades has incrementally established that, in Texas, the executive has no authority to pool the royalty or nonexecutive mineral interest covered by an oil and gas lease. Conversely, the owners of nonexecutive interests do have a choice whether or not to ratify leases that purport to cover their interest. This state of the law arose first from cases involving royalty apportionment and community leases, then drawing in nonexecutive interests, before finally establishing the privileged position of freestanding royalty and nonexecutive mineral interests. Texas should instead follow the lead of Louisiana and West …

Tweet, Post, Share. . .Get Haled Into Court? Calder Minimum Contacts Analysis In Social Media Defamation Cases, Ellen Smith Yost

SMU Law Review

Modern communication has been transformed by ubiquitous social media platforms and near-universal connectivity. Any individual, from any location, can now publish speech to thousands or potentially millions of readers, viewers, or listeners via Twitter, Facebook, Instagram, Snapchat, YouTube, and other social media platforms. For this reason, defamation claims based on social media content are increasingly common. Unfortunately, courts considering these suits lack clear and consistent rules for when a social media post satisfies “minimum contacts” and “fair play and substantial justice,” the due process requirements for exercise of personal jurisdiction over a nonresident defendant. This Comment clarifies minimum contacts analysis …

Front Matter

SMU Law Review

No abstract provided.

Tribute To Professor Peter Winship, Jennifer M. Collins, Bruce Tomaso

SMU Law Review

No abstract provided.

Video Advance Directives: Growth And Benefits Of Audiovisual Recording, Thaddeus Mason Pope

SMU Law Review

No abstract provided.

William J. Bridge: University Citizen Par Excellence, Charles E. Curran

SMU Law Review

No abstract provided.

A Tribute To Professor William J. Bridge—Teacher, Mentor, And Friend, John K. Horany

SMU Law Review

No abstract provided.

For My Colleague, Bill Bridge, Thomas Wm. Mayo

SMU Law Review

No abstract provided.

Spotify’S Direct Listing: Is It A Recipe For Gatekeeper Failure?, Brent J. Horton

SMU Law Review

On April 3, 2018, Spotify Technology S.A.—a music streaming company valued in excess of $20 billion—went public by direct listing on the New York Stock Exchange (NYSE).A direct listing is distinguishable from the more traditional initial public offering (IPO) in a number of ways, but the most important for purposes of this Article is that it foregoes the traditional underwriter.

First, this Article explains direct listings, why a company would choose to go public by direct listing, and the mechanics of a direct listing.

Second, this Article explains that a direct listing—with its reliance on a financial advisor to shepherd …

Professor Maureen Armour, Jennifer M. Collins

SMU Law Review

No abstract provided.

Maureen Armour, Honorable Jane J. Boyle

SMU Law Review

No abstract provided.

In Honor Of A Lifetime Of Justice Work, William Holston

SMU Law Review

No abstract provided.

Professor Maureen Noble Armour: The Last Lawyer In Town, Jake Torres

SMU Law Review

No abstract provided.

Article Iii, Judicial Restraint, And This Supreme Court, Joseph S. Diedrich

SMU Law Review

Article III of the U.S. Constitution establishes a federal judiciary with powers and functions separate and distinct from the other branches. During its October 2017 Term, the U.S. Supreme Court decided three cases that turned on an interpretation of Article III power: Patchak v. Zinke, Oil States Energy Services v. Greene’s Energy Group, and Gill v. Whitford.

This Article argues that in each of those three cases, a majority of the

Court coalesced around a unifying principle of judicial restraint. By “judicial restraint,” this Article refers to the principle that the judiciary should respect and defer to the elected branches. …

“Show Me The Affidavit”— Ambiguity Persists In The Application Of The Common Law Right Of Access To Pre-Indictment Records, Nathaniel Hopkins

SMU Law Review

No abstract provided.

Delay, Deny, Wait Till They Die: Balancing Veterans’ Rights And Non-Adversarial Procedures In The Va Disability Benefits System, Hugh Mcclean

SMU Law Review

The refrain “Delay, Deny, Wait Till They Die” is more than a slogan for disabled American veterans. It is a battle cry for soldiers, sailors, and airmen who have long put aside their armaments but remain entangled in the unending appeals process of the Department of Veterans Affairs’ (VA) disability benefits system. When Congress created a system for the fair and equitable distribution of military benefits, it did so with the intent that the system be non-adversarial. Congress did not want disabled veterans pitted against the nation that they had sought to defend in litigation over disability benefits. However, defining …

Good Faith Concurrent Trademark Use: How The Ninth Circuit Took A Step In The Right Direction For Broad Protection In A Digital Time, Dominic Riella

SMU Law Review

No abstract provided.

Tribal Sovereignty And Online Gaming: Fantasy Sports Offer Tribes What Other Games Do Not, Cody Wilson

SMU Law Review

No abstract provided.

Front Matter

SMU Law Review

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Front Matter

SMU Law Review

No abstract provided.

Inciting, Requesting, Provoking, Or Persuading Others To Commit Crimes: The Legacy Of Schenck And Abrams In Free Speech Jurisprudence, Larry Alexander

SMU Law Review

No abstract provided.

Dissent In A Crowded Theater, Mari J. Matsuda

SMU Law Review

No abstract provided.