Law Commons^™

Front Matter

SMU Law Review

No abstract provided.

The Carried Interest Standoff: Reaffirming Executive Agency Authority, Dean Galaro, Gregory S. Crespi

SMU Law Review

This Article argues that, if reform is necessary, carried interest taxation should be amended by agency rulemaking and not by Congress. Much has already been said about carried interest, but this Article attempts to look through a new lens—legislative history. Carried interest presents a complicated question about the application of foundational partnership tax principles. It is an issue that has received popular attention only within the last decade. Since then, the face of reform has been efforts in Congress to pass an overly complex bill—Section 710. By looking back through the legislative history of carried interest, we begin to see …

Implicit Bias And Prejudice In Mediation, Carol Izumi

SMU Law Review

Mediators aspire and endeavor to meet their ethical duty of “neutrality” in mediation. Yet their ability to actually conduct mediations without bias, prejudice, or favoritism toward any party is extraordinarily difficult, if not impossible. Research shows that unconscious mental processes involving stereotypes and attitudes affect our judgments, perceptions, and behavior toward others. Implicit bias, the automatic association of stereotypes and attitudes with social groups, may produce discriminatory responses toward parties despite a mediator’s best efforts at creating an outwardly even-handed process. Even the most well-intentioned and egalitarian mediators must actively engage in bias reduction strategies to mitigate prejudice in mediation.

When Fingerprints Are Key: Reinstating Privacy To The Privilege Against Self-Incrimination In Light Of Fingerprint Encryption In Smartphones, Efren Lemus

SMU Law Review

No abstract provided.

Re-Zoning The Sharing Economy: Municipal Authority To Regulate Short-Term Rentals Of Real Property, Cory Scanlon

SMU Law Review

No abstract provided.

The Shadow Of Free Enterprise: The Unconstitutionality Of The Securities & Exchange Commission's Administrative Law Judges, Linda D. Jellum, Moses M. Tincher

SMU Law Review

Six years ago, Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), for the first time giving the Securities and Exchange Commission (SEC) the power to seek monetary penalties through its in-house adjudication. The SEC already had the power to seek such penalties in federal court. With the Dodd-Frank Act, the SEC’s enforcement division could now choose between an adjudication before an SEC Administrative Law Judge (ALJ) or a civil action before an Article III judge. With this new choice, litigants contended that the SEC realized a significant home-court advantage. For example, the Wall Street Journal …

An Open Field For Professional Athlete Litigation: An Analysis Of The Current Application Of Section 301 Preemption In Professional Sports Lawsuits, Morgan Francy

SMU Law Review

No abstract provided.

Are Validation Notices Valid? An Empirical Evaluation Of Consumer Understanding Of Debt Collection Validation Notices, Jeff Sovern, Kate E. Walton

SMU Law Review

A principal protection against the collection of consumer debts that are not actually owed is the Fair Debt Collection Practices Act’s (FDCPA) validation notice, which obliges debt collectors demanding payment to notify consumers of their rights to dispute debts and request verification, among other things. This Article reports on the first public study of whether consumers understand the notices or what they take away from them. For nearly four decades, courts have decided whether validation notices satisfied the FDCPA without ever knowing when or if consumers understand the notices. This Article attempts to remedy that problem.

Collectors who prefer that …

Taxing Prizes And Awards: Proposed Amendments To Section 74 To Treat Meritorious Achievements Equitably, Tayler Green

SMU Law Review

No abstract provided.

First Amendment Commercial Speech—Swipe Fees Mute Texas Merchants, Shelby T. Perry

SMU Law Review

No abstract provided.

Negotiating While Female, Andrea Kupfer Schneider

SMU Law Review

Why are women paid less than men? Prevailing ethos conveniently blames the woman and her alleged inability to negotiate. This article argues that blaming women for any lack of negotiation skills or efforts is inaccurate and that prevailing perceptions about women and negotiation are in-deed myths. The first myth is that women do not negotiate. While this is true in some lab studies and among younger women, more recent workplace data calls this platitude into question. The second myth is that women should avoid negotiations because of potential backlash. Although women in leadership do face an ongoing challenge to be …

Soggy Debt—The Seventh Circuit Widens The Split On Fdcpa Liability For Time-Barred Claims In Bankruptcy, Elijah C. Stone

SMU Law Review

No abstract provided.

Banking On Diversity: Does Gender Diversity Improve Financial Firms’ Risk Oversight, Kristin N. Johnson

SMU Law Review

No abstract provided.

The Social Origins Of Innovation Failures, Laura Pedraza-Farina

SMU Law Review

This Article identifies and describes a crucial source of innovation failure— linked not to the market but to the structure of social relations that underlie market transactions—that this Article terms social network innovation failures. This source of innovation failure, however, has been obscured by two assumptions in traditional market failure models of innovation. First, market failure models frequently assume that public, non-secret knowledge (or information) will flow freely among communities of innovators and be put to its optimal use. Second, market failure models pay little attention to how good ideas emerge, assuming that good ideas will follow from investment in …

Reining In Internet-Age Expansion Of Exemption 7(C): Towards A Tort Law Approach For Ferreting Out Legitimate Privacy Concerns And Unwarranted Intrusions Under Foia, Clay Calvert, Austin Vining, Sebastian Zarate

SMU Law Review

Using the July 2016 federal appellate court decision in Detroit Free Press, Inc. v. U.S. Department of Justice as an analytical springboard, this article explores the expansion of Freedom of Information Act (FOIA) Exemption 7(C) in the Internet era. In Detroit Free Press, the Sixth Circuit recognized a privacy interest in mug shots under Exemption 7(C). The practical impact of the decision is to uphold the general policy of the U.S. Marshals Service not to release mug shots. This article illustrates the yawning gap between tort law, which this article argues would deny recovery for the Internet posting of …

The Lost Promise Of Arbitration, Sarah Rudolph Cole

SMU Law Review

This article disputes the notion that arbitration, a historically informal process, tends to disadvantage minority disputants or provide them with quick decisions tainted by prejudice. Responding to Richard Delgado’s seminal work, Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution, this article attempts to shed greater light on the benefits of modern arbitration for minority disputants. Although still capable of improvement, arbitration may well provide greater protections to minority disputants than does litigation. Since Delgado first wrote his article, the use of arbitration as a primary dispute resolution mechanism has increased dramatically, particularly among businesses and …

Flushed From The Pocket: Daily Fantasy Sports Businesses Scramble Amidst Growing Legal Concern, Jonathan Bass

SMU Law Review

No abstract provided.

Laws For "Aliens And Strangers": Examining The Foreign Commerce Clause Through The Lens Of Indian Commerce Clause Law, Laura Choi

SMU Law Review

No abstract provided.

Macroprudential Regulation Of Mortgage Lending, Steven L. Schwarcz

SMU Law Review

Following the 2007-2008 global financial crisis, housing finance remains a major potential source of systemic weakness. In light of this predicament, a substantial amount of effort has been put forth to develop regulation to effectively improve mortgage lending and the securitization of mortgage loans. Much of this regulatory effort, however, has a primarily microprudential focus – to correct market failures in order to increase economic efficiency. This article argues in favor of macroprudential regulation of mortgage lending – intended to reduce systemic risk, the risk that a cascading failure of financial system components undermines the system’s ability to generate capital, …

Foreword: Perspectives On Mortgage Lending Regulation, Julia Patterson Forrester Rogers

SMU Law Review

In her short foreword to a symposium issue, the author discusses the Dodd-Frank Wall Street Reform and Consumer Protection Act enacted by Congress in 2010. She then introduces the symposium papers by professors Kathleen Engel, Christopher Odinet, and Steven Schwarcz, which examine the new regulatory framework created by Dodd-Frank from different points of view and consider other types of mortgage lending regulation, including regulation at the state and local levels and proposals for macroprudential regulation. Lastly, the author concludes that mortgage lending regulation promises to continue to be an important topic of discussion, because the bursting of a housing bubble …

Local Government And Risky Home Loans, Kathleen C. Engel

SMU Law Review

Municipalities from the Central Valley in California to Upstate New York bear the legacy of reckless mortgage lending. Foreclosed homes and toxic titles have caused blight and cost communities billions of dollars. Many cities tried to halt the risky loans by calling on state and federal legislators and regulators to intervene. Some even passed ordinances aimed at curtailing the high-cost loans that were destroying their neighborhoods. Their pleas were dismissed and their ordinances overturned. Ultimately, the subprime crisis played a central role in the great financial crisis when millions of people lost their jobs and, as a consequence, lost their …

Appearance As A Feminist Issue, Deborah L. Rhode

SMU Law Review

No abstract provided.

Branded, Irina D. Manta

SMU Law Review

Marks are traditionally said to serve three functions that are separate from the goals of other forms of IP: source identification, advertising, and guarantee of quality. The story, however, that patents and copyrights incentivize creation and that trademarks do not fulfill that purpose does not withstand scrutiny. This Article argues that brands have evolved in such a way that they serve important incentivizing purposes of their own, and that trademark law influences their ability to do so. This Article identifies three generally neglected functions of trademarks. The first pertains to the creation of original, unique marks and brands in and …

Front Matter

SMU Law Review

No abstract provided.

Parens Patriae And The States’ Historic Police Power, Margaret S. Thomas

SMU Law Review

Class actions have long been contracting as procedural vehicles in mass tort litigation. At the same time, parens patriae actions brought by state attorneys general for injuries to their state’s citizenry have been expanding. This form of public dispute has emerged as a full-fledged alternative form of aggregate litigation in mass torts. The use of this public alternative is already widespread in consumer, antitrust, environmental, and health law cases.

Despite the widespread use of parens patriae litigation by states, the source of the power to sue in this way is vague and ill-defined. Courts have struggled to articulate and explain …

The Family Office Exclusion Under The Investment Advisers Act Of 1940, Nathan Crow, Greg S. Crespi

SMU Law Review

A family office is a private firm that manages the wealth of a high net worth family. This article explores Advisers Act Rule 202(a)(11)(G)1, the “Family Office Rule” which excludes qualifying family offices from regulation under the Investment Advisers Act of 1940. Section I discusses the business role played by family offices and general trends in family office governance. Section II provides an overview of the Investment Advisers Act of 1940, in order to put the family office exclusion in context. Section III comprehensively discusses the family office exclusion, including its origins in the Dodd-Frank Act of 2010 as well …

First Amendment--Student Speech--Why Bell Tolls A Review Of Tinker's Application To Off-Campus Online Student Speech, Katherine E. Geddes

SMU Law Review

No abstract provided.

Defamation: Environmental Allegations Against Fracking Companies Are Defamatory Per Se In Texas, Jessica Schauwecker

SMU Law Review

No abstract provided.

Front Matter

SMU Law Review

No abstract provided.

The New Affirmative Action After Fisher V. University Of Texas: Defining Educational Diversity Through The Sixth Amendment's Cross-Section Requirement, Adam Lamparello, Cynthia Swann

SMU Law Review

Skin color and diversity are not synonymous. Furthermore, race provides no basis upon which to stereotype individuals or groups, regardless of whether the reasons are malevolent or benign. Affirmative action policies in higher education should focus on the things that individuals have overcome, not the traits that individuals—and groups—cannot change. Currently, the opposite is true, as such policies equate racial diversity with educational diversity, thus precluding sufficient consideration of factors such as family and personal background, life experience, and the overcoming of adversity that would result in true educational diversity. This is not to say that race is irrelevant, as …