Law Commons^™

Are Hedge Funds Still Private? Exploring Publicness In The Face Of Incoherency, Cary Martin Shelby

SMU Law Review

Academics have frequently noted that the term “public” is one of the most under-theorized concepts under our federal securities laws. It has never been sufficiently defined by Congress, and issuers must instead rely on various indicators of publicness gleaned from an extensive patchwork of rules and exemptions. A prevalent indicator of publicness includes the status of investors, where investment companies that broadly offer investments to the general public, such as mutual funds and money-market funds, are required to register under a complex web of federal legislation. Relatedly, private investment companies such as hedge funds and private equity funds, which restrict …

The Unfinished Business Of Dodd-Frank: Reforming The Mortgage Contract, Christopher K. Odinet

SMU Law Review

The standard residential mortgage contract is due for a reappraisal in light of today’s mortgage lending and regulatory environment. The goals of Dodd-Frank and the CFPB have been geared toward creating better stability in the residential mortgage market, in part, by mandating more robust underwriting. This is achieved chiefly through the ability-to-repay rules and the “qualified mortgage” safe harbor, which call for very conservative underwriting criteria to be applied to new mortgage loans. And lenders are whole-heartedly embracing these criteria in their loan originations—in the fourth quarter of 2015 over 98% of all new residential loans were qualified mortgages, thus …

Irrational Investors And The Corporate Inversion Puzzle, Gregory R. Day

SMU Law Review

Despite recent legislative and administrative efforts, U.S. corporations continue to engage in a controversial business strategy known as a “corporate inversion.” A U.S. corporation performing an inversion acquires a foreign corporation and then, through a series of complex transactions, restructures in the foreign corporation’s country. In light of the United States’ burdensome corporate tax code, the inversion process allows formally American corporations to become taxable as a foreign entity, generating sizeable tax savings.

It is seldom noticed, however, that the inversion trend raises a significant corporate law puzzle regarding the misaligned incentives dividing directors and shareholders. From a corporate director’s …

Securities Regulation--Ninth Circuit Declines To Follow Narrow Presentation Of Novel Insider Trading Interpretation Issued By Second Circuit Securities Law "Experts", Jordan Bruns

SMU Law Review

No abstract provided.

In The Eyes Of The President--Supreme Court Holds Executive Branch Has Exclusive Power To Recognize Foreign Sovereignties, Jennifer Trejo

SMU Law Review

No abstract provided.

Finding A Balance Between Securing Confidentiality And Preserving Court Transparency: A Re-Visit Of Rule 76a And Its Application To Unfiled Discovery, The Honorable Craig Smith, Grant Schmidt, Austin Smith

SMU Law Review

No abstract provided.

The Anatomy Of The Human Rights Framework For Intellectual Property, Peter Yu

SMU Law Review

This article focuses on the complex interactions among scientific productions, intellectual property, and human rights. It begins by outlining the various arguments for or against recognizing patent rights as human rights. It then explores the proper place of intellectual property rights—in particular, patent rights—in the human rights framework for intellectual property. To help facilitate a systematic and holistic study of the framework, this article advances a layered approach to intellectual property and human rights and identifies the framework’s organizing principles and structural layers.

This article further illustrates the proposed layered framework with examples involving four different types of scientific productions: …

"He Said, She Said": With A Twist, Ronen Perry, Oren Gazal-Ayal, Chen Toubul

SMU Law Review

Many studies have explored the effect of judges’ memberships in social categories, such as gender, ethnicity, religion, age, and political affiliation, on their decisions. No study has investigated whether membership in social categories affects public perceptions of judicial decisions, especially when such membership is suspected to affect one’s perception of reality. This question is important, inter alia, because the argument that the judiciary must be representative or reflective of society is partly linked to the assumption that representation enhances public trust in the judiciary. Such an assumption holds to the extent that lack of representation is perceived by members of …

Patentable Subject Matter: Alice Does Not Permit The Dead To Frolic In A 3d Wonderland, Hao J. Wu

SMU Law Review

No abstract provided.

Reconciling The Premium Tax Credit: Painful Complications For Lower And Middle-Income Taxpayers, Francine J. Lipman, James E. Williamson

SMU Law Review

No abstract provided.

Extraordinary Results In Extraordinary Rendition, Alexander Turner

SMU Law Review

No abstract provided.

Front Matter

SMU Law Review

No abstract provided.

Reconstructing Pregnancy, Sarudzayi M. Matambanadzo

SMU Law Review

Congress passed the Pregnancy Discrimination Act in 1978 to amend Title VII’s prohibition against sex discrimination to include discrimination on the basis of pregnancy, childbirth, and related medical conditions. More than thirty-five years after the passage of the Pregnancy Discrimination Act, courts have failed to fulfill its promise. This failure lies, in part, from a tendency to reduce pregnancy, with all of its social and cultural meaning, to its “purely” biological elements. For the purposes of the Pregnancy Discrimination Act, courts ground the legal conception of pregnancy in a form of biomedical essentialism that treats pregnancy as a universal given. …

Rethinking Deference: How The History Of Church Property Disputes Calls Into Question Long-Standing First Amendment Doctrine, Eric G. Osborne, Michael D. Bush

SMU Law Review

Long-held constitutional principles state that where the factual foundation that underlies a decision is shown to have been wrong, the Supreme Court will reconsider that body of law. This article demonstrates that the foundations upon which the entire doctrine of church property law has been developed may be wrong, necessitating a reconsideration of that area of law. Watson v. Jones, 80 U.S. 679 (1871), a divisive church property dispute from Kentucky, marked the United States Supreme Court’s first entry into church property disputes. Prior to Watson, state courts had handled church property disputes according to the rules of …

Front Matter, Smu Law Review

SMU Law Review

No abstract provided.

Same-Sex Cynicism And The Self-Defeating Pursuit Of Social Acceptance Through Litigation, James Dwyer

SMU Law Review

Unrepresented in the literature on same-sex marriage is the perspective of a family law scholar who supports legal marriage for same-sex couples as a matter of policy and morality but denies that same-sex couples have a constitutional right to state-issued marriage certificates. This article exposes the disingenuous distortions and intentional omissions that advocates for same-sex marriage and their supporters in the judiciary and the academy deploy to secure the policy result they desire through the courts. It demonstrates that the same-sex marriage movement's past successes have actually undermined, rather than advanced, their case for court-mandated expansion of legal marriage. It …

Distinguishing Lay From Expert Opinion: The Need To Focus On The Epistemological Differences Between The Reasoning Process Used By Lay And Expert Witnesses, Edward J. Imwinkelried

SMU Law Review

This article deals with the sometimes elusive line between expert and lay opinion testimony. Justice Holmes once remarked that the law is constantly drawing lines. That remark certainly holds true in Evidence law. On a daily basis trial judges must distinguish between character and noncharacter uses of evidence and differentiate hearsay from nonhearsay theories of logical relevance. The topic of this article is another evidentiary distinction: that between lay opinions and expert opinions.

That distinction has assumed tremendous importance since 1993. In that year, Federal Rule of Civil Procedure 26 was amended to prescribe mandatory pre-discovery disclosures. One of the …

Acupressure: The Emerging Role Of Market Ordering In Global Copyright Enforcement, Eric Priest

SMU Law Review

No abstract provided.

Psychology's Role In Law: A Discussion Of How The Supreme Court Views The Role Of The Dsm-V In Hall V. Florida, Bryant Buechele

SMU Law Review

No abstract provided.

Enforcement Of Patent Rights: Expanding The Potential For Patent Owners To Face Antitrust Liability, Angela Oliver

SMU Law Review

No abstract provided.

Construction Law--Texas Supreme Court Shields Design Professionals From Economic Liability In Negligent Misrepresentation Suits, Grant Robinson

SMU Law Review

No abstract provided.

The Emerging Role Of Bylaws In Corporate Governance, Henry Dupont Ridgely

SMU Law Review

No abstract provided.

Probability, Confidence, And Twombly's Plausibility Standard, Luke Meier

SMU Law Review

No abstract provided.

How The Law Should View Voluntary Child Soldiers: Does Terrorism Pose A Different Dilemma?, Cristina Martinez Squiers

SMU Law Review

No abstract provided.

Some Observations On Corporate Or Business Tax Reform, Christopher H. Hanna

SMU Law Review

The current push for tax reform seems to be coming from corporate America. This is quite different than the circumstances surrounding tax reform in 1986, the last time the United States enacted comprehensive tax reform. At that time, upper-income individuals were investing in a variety of tax shelters. This paper examines tax reform according to the interests of four categories of Corporate America.

Reflections On "In The Best Interest Of The Corporation" And "Corporate Social Responsibility": An Essay Honouring The Memory Of Professor Alan R. Bromberg, Joseph J. Norton

SMU Law Review

This essay examines the question of how a Texas corporation can pursue a Corporate Social Responsibility (CSR) program while maintaining compliance with statutory and case law standards of corporate governance. The author discusses both the historical policy underpinnings and modern-day drivers of CSR and concludes that a comprehensive CSR program based on the sustainability of the enterprise aligns with current Texas standards for corporate governance. As applied in connection with CSR, the author suggests that sustainability provides a longer-term and more appropriate stakeholder context to corporate decision-making.

Professor Alan R. Bromberg's Rule 10b-5, Marc I. Steinberg

SMU Law Review

Professor Alan Bromberg was the foremost authority in the law of Rule 10b-5. In this article, the author Professor Marc Steinberg, Professor Bromberg's colleague for 25 years, highlights Professor Bromberg's scholarship in this area. Focusing on key U.S. Supreme Court decisions and congressional legislation, Professor Steinberg reflects on the dialogue that he had with Professor Bromberg through the years on these developments. As this article illustrates, Professor Bromberg enjoyed a truly impressive academic career.

In Honor Of Professor Alan Bromberg, Marc I. Steinberg

SMU Law Review

No abstract provided.

Drafting General Partnership Laws On The "Aggregate" Or "Entity" Theory, Peter Winship

SMU Law Review

It has been “a matter of considerable dispute” whether partnership legislation should treat a general partnership as an entity. The dispute is about whether to draft the legislation on the “entity” theory (the partnership is a separate legal entity) or on an “aggregate” theory (the partnership is an association — but not a legal entity — of persons carrying on a business as co-owners). Scotland and civil law jurisdictions (including Louisiana) have long recognized the partnership as an entity. Until the late 19th century, however, partnership law in common-law jurisdictions was judge- made law, and most judges treated partnership issues …

Professor Alan R. Bromberg And The Scholarly Role Of The Treatise, Wendy G. Couture

SMU Law Review

No abstract provided.