Law Commons^™

Afterword: Collective Knowledge Production Toward Transformative Social Change: A Community-Grounded Model, Steven Bender

Faculty Articles

No abstract provided.

U.S. Settler Colonialism, White Supremacy, And The Racially Disparate Impacts Of Covid-19, Monika Batra Kashyap

Faculty Articles

This Essay contextualizes the racially disproportionate impacts of COVID-19 in the United States within a framework of settler colonialism in order to broaden the understanding of how structural inequality is produced, imposed, and maintained. A settler colonialism framework recognizes that the United States is a present-day settler colonial society whose laws, institutions and systems of governance continue to reenact the three processes upon which the United States was built—Indigenous elimination, anti-Black racism, and immigrant exploitation. This Essay connects these foundational processes—and their underlying White supremacist logics—to the disparate health impacts of COVID-19 on Indigenous, Black, and immigrant of color communities …

The 14th Amendment And Me: How I Learned Not To Give Up On The 14th Amendment, Robert Chang

Faculty Articles

No abstract provided.

National, Military, And College Reports On Prosecution Of Sexual Assaults And Victims' Rights (White Paper), David A. Schlueter, Lisa Schenck

Faculty Articles

In response to recent calls for major reforms to the American military justice system, which are apparently based on continuing Congressional concerns about sexual assaults in the military, the authors present statistical data on sexual assaults from a number of sources: national crime statistics; military crime statistics; crime statistics from several states, and statistics from a university. The authors also present information on the tremendous strides that have been made in recent years to protect the rights of military victims of sexual assault, noting that some of those rights are not found in federal or state criminal justice systems. Finally, …

Texas Supreme Court’S Failure To Offer Alternative Licensure Option Unnecessarily Hinders Our State’S Future Lawyers, Michael Ariens

Faculty Articles

No abstract provided.

American Military Justice: Retaining The Commander's Authority To Enforce Discipline And Justice, David A. Schlueter, Lisa Schenck

Faculty Articles

This white paper recommends that Congress reject proposals that would remove a commander’s prosecutorial discretion and instead place it in the hands of senior armed forces lawyers. There are currently two proposed legislative provisions that would adversely affect the commander’s prosecutorial discretion and undermine the commander’s ability to enforce good order and discipline. The first proposed provision was included in Section 540F of the 2020 National Defense Authorization Act, where Congress mandated that the Department of Defense report to the congressional armed services committees on the feasibility of creating a pilot program that would remove a commander’s authority to prefer, …

Contract Lore As Heuristic Starting Points, Colin P. Marks

Faculty Articles

What Professor Hillman labels as lore are better thought of as a series of heuristic starting points. I do not label them heuristics in and of themselves as they do not represent shortcuts to the ultimate answer. But, as I explain, all of the areas that Professor Hillman identifies as lore are actually quite nuanced, sometimes filled with exceptions; other times, they simply represent the first step in a long inquiry. Heuristics as a teaching device has been recognized in law and other disciplines as an effective tool in not only conveying information, but also prodding the student to conduct …

Terrible Touhy: Navigating Judicial Review Of An Agency's Response To Third-Party Subpoenas, Zoe Niesel

Faculty Articles

The question of judicial review of a federal agency's response to a third-party subpoena is highly litigated and yet barely addressed in academic literature. For seventy years, this issue has been governed by the Supreme Court's holding in United States ex rel. Touhy v. Ragen, a case that spawned its own vocabulary, its own legal doctrine, and its own circuit split. The confusion has left four circuit courts entrenched, the remainder waffling, and the district courts largely on their own to sort out a workable standard.

This Article establishes that the circuit courts' approaches to judicial review of an agency's …

Pirates On The High Seas: An Institutional Response To Expanding U.S. Jurisdiction In Troubled Waters, Marshall B. Lloyd, Robert Summers

Faculty Articles

Collective efforts among governments and regional organizations is a vital part of the fight against piracy that represents a security threat to all nation states with respect to freedom to navigate the high seas. This paper provides a concise overview of piracy, contemporary maritime drug laws, and cases among the circuit courts to illustrate the procedural concerns that affect fundamental constitutional principles of jurisdiction. A possible solution to existing substantive and procedural due process issues is establishment of a regional judicial institution with broad powers to preside over criminal prosecutions that include maritime crimes. The suggestion may be a viable …

A Comparative Study Of Trademarks: Usmca (U.S.-Mexico-Canada Agreement) And Nafta (North American Free Trade Agreement), Roberto Rosas

Faculty Articles

The definition of a trademark has expanded under the U.S. -Mexico-Canada Agreement ("USMCA "'), which provides more protection for rights holders. Currently, these three countries are bound by the North American Free Trade Agreement ("NAFTA"'), which has a narrow definition for trademarks. The North American Free Trade Agreement ("NAFTA"'), which came into effect on January 1, 1994, was a significant agreement between some of the largest, strongest, and well-developed economies in the world: United States and Canada. It also helped to invigorate Mexico's future economic development. NAFTA's broad purpose was to regulate the exchange of capital, goods, and services across …

Beyond Equality And Discrimination, Martha Albertson Fineman

Faculty Articles

The theme of this Article for the SMU Law Review Forum focuses us on the challenges faced by the “economically disadvantaged” in the past decade and in the future. This framing is rooted in a distinction between that conceptual status of equality and the actuality of discrimination and disadvantage. This is the lens through which contemporary legal culture tends to assess the nature and effect of existing laws and determines the necessary direction of reform. As such, this paradigm provides the governing logic for both criticism and justification of the status quo. It is rooted in an understanding of the …

The Supreme Court And The 117th Congress, Andrew K. Jennings, Athul K. Acharya

Faculty Articles

If the late Justice Ruth Bader Ginsburg’s successor is confirmed before the 2020 presidential election or in the post-election lame-duck period, and if Democrats come to have unified control of government on January 20, 2021, how can they respond legislatively to the Court’s new 6-3 conservative ideological balance? This Essay frames a hypothetical 117th Congress’s options, discusses its four simplest legislative responses—expand the Court, limit its certiorari discretion, restrict its jurisdiction, or reroute its jurisdiction—and offers model statutory language for enacting those responses.

Notice Risk And Registered Agency, Andrew K. Jennings

Faculty Articles

To sue a firm is to sue an artificial person, making the most reliable service method—physically handing papers to the defendant—unusable. This problem illustrates notice risk: if a plaintiff’s service obligations are loose, it is advantaged (because the defendant may never receive notice), whereas if they are strict, the defendant is advantaged (because the plaintiff may struggle to effect service). For litigation involving corporate defendants, civil procedure and corporate law mitigate this problem through a technology for managing notice risk: registered agency. A firm using this technology, because it cannot be served directly, appoints an agent who will accept papers …

Changing The Subject Of Sati, Deepa Das Acevedo

Faculty Articles

Charan Shah's 1999 death was widely considered to be the first sati, or widow immolation, to have occurred in India in over twenty years. Media coverage of the event focused on procedural minutiae-her sari, her demeanor-and ultimately, several progressive commentators came to the counterintuitive conclusion that the ritually anomalous nature of Charan's death confirmed its voluntary, secular, and noncriminal nature. This article argues that the "unlabeling" of Charan's death, like those of other women between 1999 and 2006, reflects a tension between the nonindividuated, impervious model of personhood exemplified by sati and the particularized citizen-subject of liberal-democratic politics in India.

Essentializing Labor Before, During, And After The Coronavirus Pandemic, Deepa Das Acevedo

Faculty Articles

In the era of COVID-19, the term essential labor has become part of our daily lexicon. Between March and May 2020, essential labor was not just the only kind of paid labor occurring across most of the United States; it was also, many argued, the only thing preventing utter economic and humanitarian collapse. As a result of this sudden significance, legal scholars, workers’ advocates, and politicians have scrambled to articulate exactly what makes essential labor “essential.” Some commentators have also argued that the rise of essential labor as a conceptual category disrupts—or should disrupt—longstanding patterns in the way the nation …

Partisan Voting On The California Supreme Court, Mark P. Gergen, David A. Carrillo, Benjamin M. Chen, Kevin M. Quinn

Faculty Articles

When did ideology become the major fault line of the California Supreme Court? To answer this question, we use a two-parameter item response theory (IRT) model to identify voting patterns in non-unanimous decisions by California Supreme Court justices from 1910 to 2011. The model shows that voting on the court became polarized on recognizably partisan lines beginning in the mid-1900s. Justices usually did not vote in a pattern that matched their political reputations and party affiliation during the first half of the century. This began to change in the 1950s. After 1959 the dominant voting pattern is partisan and closely …

The Wealth Tax: Apportionment, Federalism, And Constitutionality, Alex Zhang

Faculty Articles

Proposals of wealth taxation as a mechanism to combat economic inequality and raise revenue for welfare programs have dominated recent political debate. Despite extensive academic commentary, questions surrounding the constitutionality of a wealth tax remain unresolved. Previous scholarly approaches have drawn a dichotomy between two key cases. Supporters of the wealth tax emphasize Hylton's functional rule for identifying direct taxes, which must be apportioned under the Constitution, and reject Pollock, which invalidated the federal income tax on the grounds that it was a direct tax. Opponents of the wealth tax, in contrast, argue that Pollock, rather than …

Damnatio Memoriae And Black Lives Matter, Alex Zhang

Faculty Articles

Police brutality and killings of Black Americans have recently sparked nationwide protests. Among the many expressions of anger and indignation, one stands out as a unique feature of this wave of the social movement: public scrutiny of civic symbols. Protestors have defaced, torn down, and called for the removal of monuments that represent our country’s racist past, as well as structural racial injustice today. Protestors toppled a statue of George Washington in Portland and spray-painted on it the label “Genocidal Colonist,” while statues of Christopher Columbus were found beheaded in Boston, yanked from a pedestal in St. Paul, and tossed …

Against The "Safety Net", Matthew B. Lawrence

Faculty Articles

Then-Representative Jack Kemp and President Ronald Reagan originated the “safety net” conception of U.S. health and welfare laws in the late 1970s and early 1980s, defending proposed cuts to New Deal and Great Society programs by asserting that such cuts would not take away the “social safety net of programs” for those with “true need.” Legal scholars have adopted their metaphor widely and uncritically. This Article deconstructs the safety net metaphor and counsels against its use in understanding health and welfare laws. The metaphor is descriptively confusing because it means different things to different audiences. Some understand the safety net …

Reflections On The Effects Of Federalism On Opioid Policy, Matthew B. Lawrence

Faculty Articles

One thing we have seen today that we talk about in health law all the time is how the policy, the laws and institutions up at the 10,000 foot level, can so dramatically influence the personal, people’s lived experiences. Our speakers today have done a really great job of drawing out abstract institutional questions and also showing us how those questions have influenced the lives of real people in often tragic ways. Another thing we have seen that we talk about in administrative law all the time is the importance of expertise, especially given how hard it is to trace …

Confucius And The Chinese Legal Tradition, Chenglin Liu

Faculty Articles

More than two thousand years ago, Confucius transformed and perfected an institution for governing Chinese people, which has been religiously replicated by subsequent dynasties. Within the Confucian institution, the King, at the pinnacle of the pyramid, held absolute authority; regional lords were loyal to the King; and commoners were submissive to the privileged. Confucius held that peace and order could only be achieved when people acted according to their hierarchical worth assigned by the ruler. This article offers an overview of the transformation of Confucianism. It then examines competing schools of thought-Legalism and Taoism-and explains why Confucianism triumphed to become …

There Oughta Be A Law: What Corporate Social Responsibility Can Trach Us About Consumer Contract Formation, Colin P. Marks

Faculty Articles

The Restatement of Consumer Contracts has been a controversial project since its inception. Some have argued that the project is unnecessary as there is no separate law of consumer contracts. Others have argued that the project is more appropriate for a Principles of Law project than for a Restatement. Substantively, the project has also drawn criticism from both consumer and business advocates. Consumer advocates have argued that some of the sections, in particular section 2 which addresses standard terms, favor businesses and subject consumers to terms and conditions that they never truly assented to.9 Business advocates have argued, among other …

Public Rights After Oil States Energy, Adam J. Macleod

Faculty Articles

The concept of public rights plays an important role in the jurisprudence of the Supreme Court of the United States. But as the decision in Oil States last Term revealed, the Court has often used the term to refer to three different concepts with different jurisprudential implications. Using insights drawn from historical and analytical jurisprudence, this Article distinguishes the three concepts and examines how each of them is at work in patent law. A precise reading of Oil States also bears lessons for other areas of law that implicate both private rights and duties and the administration of public regulatory …

Arthur C. Y. Yao (1906-2004): A Pioneer Chinese Professor At St. Mary's University School Of Law, Robert H. Hu

Faculty Articles

No abstract provided.

Loopholes For The Affluent Bankrupt, David R. Hague

Faculty Articles

Recent bankruptcy cases are exposing a problem. Affluent individuals filing for bankruptcy are treated more favorably under the Bankruptcy Code than those debtors with little to no means of financial sustenance or income. Did Congress intend this result? The legislative history is unclear. But one thing seems certain: The United States Bankruptcy Code contains a set of loopholes that appear to be designed for the well-to-do segment of society. Courts throughout the United States are either overlooking these provisions or simply condoning their utilization under the defensible conviction that the Bankruptcy Code permits it.

In this Article, I argue that …

Antitrust And Two-Sided Platforms: The Failure Of American Express, John B. Kirkwood

Faculty Articles

Two-sided platforms serve two sets of customers and enable them to interact with each other. The five most valuable corporations in America – Amazon, Apple, Facebook, Google, and Microsoft – all operate two-sided platforms. But despite their growing power, the Supreme Court's American Express decision has made it harder to stop them from stifling competition. This Article systematically exposes the flaws in the Court's reasoning and identifies the principles that should govern future cases. The Court’s most fundamental error was to require plaintiffs in rule of reason cases to make an initial showing of consumer harm that weighs the effects …

#Sowhitemale: Federal Procedural Rulemaking Committees, Brooke D. Coleman

Faculty Articles

Of the 630 members of a specialized set of committees responsible for drafting the federal rules for civil and criminal litigation, 591 of them have been white. That is 94 percent of the committee membership. Of that same group, 513—or 81 percent—have been white men. Decisionmaking bodies do better work when their members are diverse; these rulemaking committees are no exception. The Federal Rules of Practice and Procedure are not mere technical instructions, nor are they created by a neutral set of experts. To the contrary, the Rules embody normative judgments about what values trump others, and the rulemakers—while experts—are …

The Army's G-Rap Fiasco: How The Lives And Careers Of Hundreds Of Innocent Soldiers Were Destroyed, Jeffrey F. Addicott

Faculty Articles

The purpose of this article is three-fold. First, this article seeks to explore the legal and policy ramifications of the CID's multi-year criminal investigation, which targeted vast numbers of innocent Army National Guard and Army Reserve personnel for alleged criminality as contract employees in the G-RAP or AR-RAP.

Second, this article aims to highlight the CID's longstanding practice referred to as "titling"-of refusing to delete from their system of records those individuals that are subsequently cleared of any wrongdoing by their commands. This highly dubious administrative practice was particularly devastating to the hundreds of innocent and fully exonerated participants in …

Machine Learning And The New Civil Procedure, Zoe Niesel

Faculty Articles

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 …

Domestic Military Operations And The Coronavirus Pandemic, Mark P. Nevitt

Faculty Articles

In response to the novel coronavirus crisis, we are witnessing one of the largest domestic military operations in American history. This article proceeds in three parts. Part I considers the emergency authorities invoked to address the coronavirus, including the Public Health Service Act (PHSA), National Emergencies Act (NEA), and Stafford Act. Part II deals with the laws, regulations, and policies governing the military’s role as a law enforcer— including restrictions on the military’s role to quell civilian disturbances. I also briefly discuss martial law, a rarely invoked but powerful authority held at the federal, state, and local levels. Part III …