Law Commons^™

Data’S Demise And The Rhetoric Of Sffa, Shakira Pleasant

SMU Law Review

The Supreme Court’s holding that Harvard College’s and the University of North Carolina’s (UNC) “admissions systems” are invalid under the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964 was an anticipated result. The Court’s 2016 decision in Fisher v. University of Texas at Austin (Fisher II), left some speculation that race-conscious admissions could eventually be struck down by the Court; however, Fisher II also offered some guidance for future litigants to address challenges. Colleges and universities needed to use data to “scrutinize the fairness of their admissions programs” to satisfy the …

The Post-Racial Deception Of The Roberts Court, Cedric M. Powell

SMU Law Review

Students for Fair Admissions v. Harvard/UNC (SFFA) is a post-racial deception unmoored from precedent and societal reality. SFFA deceives the polity and signals an all out assault on anti-discrimination law. To preserve its institutional legitimacy, the Roberts Court promotes doctrinal and conceptual distortions—post-racial deceptions of cognizable injuries advanced through reverse discrimination claims of white plaintiffs; racial proxy claims of discrimination proffered by Asian-Americans; and the fairness rationale of the Court’s circular post-racial edict that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Chief Justice Roberts’s majority opinion discards the …

Students For Fair Admissions V. Universities For Division, Exclusion, And Inequity: The Petitions, The Arguments, And The Decision, Josh Blackman

SMU Law Review

Students for Fair Admissions v. Harvard (SFFA) will be studied by law students for generations, in much the same way that Bakke and Grutter were studied before. But there is much more to SFFA than the final decisions about Harvard University and the University of North Carolina will reveal. This Article, published for a symposium by the SMU Law Review, focuses on three stages of the litigation: the petitions, the oral arguments, and the decision. Part I recounts the complex procedural history, which began in federal courts in Massachusetts and North Carolina. The Harvard case reached the Supreme Court first, …

Racial Classifications In Higher Education Admissions Before And After Sffa, David E. Bernstein

SMU Law Review

Hundreds of law review articles have discussed the legality of affirmative action programs. Virtually all of them begin with the implicit assumption that the racial classifications used in these programs are legitimate and uncontroversial (an assumption I challenge in my 2022 book, Classified: The Untold Story of Racial Classifications In America). That assumption has been undermined by Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (“SFFA”).

Chief Justice Roberts, writing for a 6–3 majority, asserted that the underlying classifications are “imprecise in many ways” and “opaque.” He quoted Justice Gorsuch’s concurring opinion, which criticized the classifications …

Race Preferences, Diversity, And Students For Fair Admissions: A New Day, A New Clarity, Maimon Schwarzschild, Gail Heriot

SMU Law Review

This Article traces the legal path to the Supreme Court’s decision in Students for Fair Admissions v. Harvard and the University of North Carolina (2023), from the famous Bakke case in 1978 to the Grutter decision twenty-five years later. It reviews the shifting fortunes of the “diversity” rationale for racial preferences in higher education and assesses the widening—rather than narrowing—gulf between the Court’s majority and the dissenting Justices on the issue of racial preferences.

After half a century of closely contested Supreme Court decisions, some of them seeming to point in opposing directions, others relying on fragmented pluralities among the …

Front Matter

SMU Law Review

No abstract provided.

In Honor Of Professor Lackland Bloom, Marc I. Steinberg

SMU Law Review

No abstract provided.

Taxing Composite Transactions, Emily Cauble

SMU Law Review

In a variety of contexts, taxpayers engage in composite transactions—essentially two transactions in one. For instance, when an individual sells property for less than its fair market value to a friend or relative, the transaction involves a sale and a gift. As another example, from time to time, retailers run promotions offering to rebate the price of merchandise if a team wins a sporting event. A buyer of the merchandise, effectively, makes a purchase and also places a bet on the sporting event’s outcome.

Tax law’s treatment of composite transactions is not uniform. In some contexts tax law fully bifurcates …

The Confrontation Clause & State Action, John L. Watts

SMU Law Review

The Sixth Amendment’s Confrontation Clause works in conjunction with the right to counsel and trial by jury to protect the people against the government’s abuse of its prosecutorial monopoly. However, the history of the Court’s Confrontation Clause jurisprudence has not always focused on the Sixth Amendment’s goal of limiting government power and was treated as virtually synonymous with the hearsay rules. In Crawford v. Washington, the Court restored the Confrontation Clause to constitutional significance by correctly identifying it as a procedural guaranty that empowers the jury to evaluate the reliability of government witnesses through live testimony subject to cross-examination. Unfortunately, …

The Myth Of Children’S Online Privacy Protection, Stacey B. Steinberg

SMU Law Review

Digital technology has changed the landscape young people face as they come of age. It has changed how children interact with their parents, schools, community organizations, and the state. Despite many benefits, digital technologies that employ data collection, algorithms, and artificial intelligence pose significant risks for the next generation. Private businesses can collect, use, and sell a child’s data in ways never imagined by their families. Information collected by third parties with good intentions can be stolen through data breaches. Through faulty algorithms, websites can make inaccurate assumptions about young people’s interests, teachers can make inaccurate assumptions about a student’s …

Growing Tensions: Consumer Privacy And Corporate Disclosures, Megan Wischmeier Shaner

SMU Law Review

Data privacy and data security have become key issues for legislators, regulators, and individual citizens. Roughly two-thirds of Americans believe their data is being regularly tracked, monitored, and collected by companies and the government. A majority of U.S. adults also believe their data is less secure today than five years ago, expressing concerns that they have little control over how their personal information is being used and that the entities who control their data are not responsible stewards. In the absence of comprehensive federal regulation, a continuous stream of privacy statutes have been proposed at the state level. Beginning with …

Front Matter

SMU Law Review

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Tribute To Professor Joseph Jude Norton, Ross P. Buckley

SMU Law Review

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A Tribute To James L. Walsh Distinguished Faculty Fellow And Professor Joseph Jude Norton, Harriet E. Miers

SMU Law Review

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In Memoriam: Professor Joseph J. Norton, Douglas W. Arner

SMU Law Review

No abstract provided.

The Vision And Inception Of The Legal Aid Clinic At Smu School Of Law, Amy Kearney

SMU Law Review

This paper examines the impetus behind the creation of the SMU Clinic and analyzes how the clinic actually worked in its early years and whether the clinic accomplished its objectives. I wrote this paper during my last semester of law school while participating in the SMU Clinic as a student attorney. While researching this paper, I had the pleasure of speaking with some of the first student attorneys that participated in the SMU Clinic, many of whom went on to practice law for decades afterwards. I greatly enjoyed hearing their perspectives, and love that I was able to similarly provide …

Can Criminal Defense Attorneys Be Victim-Centered?, Natalie Nanasi, Demetrice Lopez-Loftis

SMU Law Review

Attorneys defending those accused of intimate partner violence, like all lawyers, owe duties of zealous advocacy and confidentiality to their clients. But is there a place within these ethical obligations for them to also consider the safety of the victim? Defense counsel are often uniquely situated—by virtue of their relationships with their clients and victims—to help mitigate potentially serious harm. This article explores the spaces where defending an accused perpetrator of domestic violence and taking actions to limit further harm to a survivor are compatible. It also identifies areas where defense attorneys can obtain additional resources and data to inform …

75 Years Of Clinical Legal Education: Celebrating The Past While Looking To The Future, Mary Spector

SMU Law Review

In October 2023, the Clinical Program at SMU Dedman School of Law celebrated its 75th anniversary. The occasion provided an opportunity to celebrate seventy-five years of free legal services to thousands of clients over the years: real people with real problems without the means to hire a lawyer. Among the legal services provided were ones that ensured families had safe and affordable places to live, protected the rights of those in the criminal justice system, safeguarded seniors’ financial stability, assisted taxpayers in navigating disputes with the IRS, and ensured that employees obtain the benefits to which they are entitled.

During …

Front Matter

SMU Law Review

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Death Is Disparate, Jesse Cheng

SMU Law Review

The high stakes of capital punishment demand heightened procedural safeguards: death is different, so the maxim goes. One such safeguard is the doctrine of individualized sentencing mitigation, which establishes the defense’s right to introduce expansively open-ended evidence about the defendant’s unique life circumstances when making the case for mercy at the penalty trial. But some have criticized individualized mitigation for upending prior efforts by the U.S. Supreme Court to establish consistency and fairness in death verdicts. This Article takes individualized sentencing to its logical limit by considering the doctrinal possibility of “adversarial parity,” whereby open-ended individualization is also extended to …

The War[Hol] Between Artistic Creativity And Commercial Use Within The Fair Use Defense, Morgan Houghtlin

SMU Law Review

In May 2023, the Supreme Court decided Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, articulating the standard for the “fair use” defense under a copyright infringement claim. The Court’s decision significantly narrowed the first factor of the fair use analysis, characterizing “purpose and use” in terms of the commercial nature of a secondary work with little consideration of the art’s creative value. This opinion deviates from the broader conception of “fair use” articulated in Campbell v. Acuff-Rose Music, Inc. (1994) and introduces various implications for modern-day artists and content creators. Specifically, Justice Sotomayor’s majority opinion and …

Tribute To Professor Lack Bloom, David O. Taylor

SMU Law Review

No abstract provided.

A Role Model Among Law Professors, Randy Beck

SMU Law Review

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Joseph J. Norton: Friend And Colleague, Christopher H. Hanna

SMU Law Review

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Professor Joseph J. Norton: Distinguished Scholar, Outstanding Teacher, Exceptional International Lawyer, And Mensch, Werner F. Ebke

SMU Law Review

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Green And Proud: Protecting The Antiquities Act As A Means Of Fighting Climate Change And Promoting American Patriotism, Cameron King

SMU Law Review

This Comment addresses recent developments in Antiquities Act jurisprudence. Given the dearth of serious legal challenges confronting the Antiquities Act for the first 100 years of its existence, the past twenty-five years of near continuous controversy have made the Antiquities Act a hot-button issue in environmental law and politics.

As recently as two years ago, the nature of scholarly interest in the Antiquities Act was vastly different. Then, the issue was President Trump’s reduction of the sizes of two major monuments. Questions surfaced about the President’s ability to make such a reduction. With the election of Joe Biden and the …

A Critique Of The Current Epidemic In Our Criminal Justice System: “Guilty Until Proven Innocent”, Jaclyn Marsh

SMU Law Review

It has been a long-held notion of American jurisprudence that a citizen of this country shall not be deprived of their fundamental rights until required so by law. It is an offshoot of this notion that an American should not be deprived of these fundamental rights through being confined to jail or prison until twelve of their own fellow peers have laid down a finding of guilty. However, this phenomenon is exactly what is happening today, and the issue has been steadily increasing in occurrence since the passing of a federal statute in 1984.

Because of judicial interpretation and government …

In Memoriam – A Tribute To Professor Joseph J. Norton, Rosa Maria Lastra

SMU Law Review

No abstract provided.

Press Freedoms Under Pressure: Clinical Perspectives On The State Of Press Freedoms In Texas In 2024, Peter B. Stefensen, Thomas S. Leatherbury

SMU Law Review

Amid existential challenges to the press as an institution, public accountability journalists in Texas are navigating their own set of difficulties. For those who report on state and local entities, journalists are encountering increasingly constrained avenues for obtaining public information, a greater tendency for government bodies to prioritize image control over transparency, a higher likelihood of retaliation from public officials for performing important accountability work, and a judiciary that seems to respect the press less and less. By surveying journalists, and members of press and legal organizations who support accountability journalism, we use their accounts to evaluate these trends, to …

Accommodating Religion After Groff, Charles A. Sullivan

SMU Law Review

At the end of last term, Groff v. DeJoy “clarified” an earlier Supreme Court decision that had largely nullified Title VII’s duty that employers reasonably accommodate their workers’ religious practices by virtue of a very broad interpretation of a statutory exception. That exception permitted denying accommodation when the result would be “undue hardship,” and the Court in the earlier case had described that defense as triggered whenever the accommodation would impose “more than de minimis” costs. This atextual reading had the effect of largely erasing the duty, and over time became increasingly out of sync with the Court’s religious liberties …