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2021

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Articles 12301 - 12330 of 13128

Full-Text Articles in Law

Harry Potter And The Gluttonous Machine, Jason A. Beckett Jan 2021

Harry Potter And The Gluttonous Machine, Jason A. Beckett

Faculty Journal Articles

In this paper, I outline the colonial structure of international law, and examine the short decline or suppression of its coloniality in the so-called ‘era of decolonisation’, then illustrate its resurgence in the modern neo-colonial order. PIL has split into two separate systems. One includes, and is justified by, the heroic tales of human rights and ‘Humanity’s Law’. The other is the actualised system of International Economic Law (IEL), an order driven by the need of the over-developed states to plunder the under-developed states’ resources and labour, to subsidise the luxury to which we have grown accustomed. One purports to …

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Bankruptcy, Harlin D. Hale, Grayson W. Williams Jan 2021

Bankruptcy, Harlin D. Hale, Grayson W. Williams

SMU Annual Texas Survey

This article is a survey of relevant developments in bankruptcy law from December 1, 2019, through November 30, 2020. The article focuses on law likely to be influential to Texas practitioners.

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Front Matter Jan 2021

Front Matter

SMU Annual Texas Survey

No abstract provided.

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Civil Procedure: Pretrial & Trial, Amanda Sotak, Don Colleluori, Andrew C. Whitaker Jan 2021

Civil Procedure: Pretrial & Trial, Amanda Sotak, Don Colleluori, Andrew C. Whitaker

SMU Annual Texas Survey

This article is a survey of the relevant developments in civil procedure law from December 1, 2019, through November 30, 2020. The article focuses on law likely to be influential to Texas practitioners.

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Criminal Procedure: Confessions, Searches, And Seizures, Barbara Parker Hervey, Carson Guy, Alexander R. Comsudi Jan 2021

Criminal Procedure: Confessions, Searches, And Seizures, Barbara Parker Hervey, Carson Guy, Alexander R. Comsudi

SMU Annual Texas Survey

This article is a survey of the relevant developments in criminal procedure law from December 1, 2019, through November 30, 2020. The article focuses on law likely to be influential to Texas practitioners.

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Insurance Law, J. Price Collins, John I. Goodwin Iii, Keira Hornyak Jan 2021

Insurance Law, J. Price Collins, John I. Goodwin Iii, Keira Hornyak

SMU Annual Texas Survey

This article is a survey of the relevant developments in insurance law from December 1, 2019, through November 30, 2020. The article focuses predominantly on Texas law.

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Oil, Gas, And Mineral Law, Austin W. Brister, Michael G. Szymanski Jan 2021

Oil, Gas, And Mineral Law, Austin W. Brister, Michael G. Szymanski

SMU Annual Texas Survey

This article is a survey of the relevant developments in oil, gas, and mineral law from December 1, 2019, through November 30, 2020. The article focuses on law likely to be influential to Texas practitioners.

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Professional Liability, Chelsea Glover, Sven Stricker, Stephanie Assi Jan 2021

Professional Liability, Chelsea Glover, Sven Stricker, Stephanie Assi

SMU Annual Texas Survey

This article is a survey of the relevant developments in professional liability law from December 1, 2019, through November 30, 2020. The article focuses on law likely to be influential to Texas practitioners.

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Real Property, J. Richard White, Amanda Grainger Jan 2021

Real Property, J. Richard White, Amanda Grainger

SMU Annual Texas Survey

This article is a survey of the relevant developments in real property law from December 1, 2019, through November 30, 2020. The article focuses on law likely to be influential to Texas practitioners.

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Survey Of Recent Mandamus Decisions Of The Texas Supreme Court, Douglas S. Lang Jan 2021

Survey Of Recent Mandamus Decisions Of The Texas Supreme Court, Douglas S. Lang

SMU Annual Texas Survey

This article is a survey of the relevant developments in Texas’s mandamus jurisprudence from December 1, 2019, through November 30, 2020. The article focuses on law likely to be influential to Texas practitioners.

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Wills & Trusts, Gerry W. Beyer Jan 2021

Wills & Trusts, Gerry W. Beyer

SMU Annual Texas Survey

This article is a survey of the relevant developments in law of wills and trusts from December 1, 2019, through November 30, 2020. The article focuses on law likely to be influential to Texas practitioners.

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Cyber Due Diligence, Eric Talbot Jensen, Sean Watts Jan 2021

Cyber Due Diligence, Eric Talbot Jensen, Sean Watts

Faculty Scholarship

Due diligence—the notion that international law includes a duty to cease and remedy damage that emanates from a State’s territory—has been proposed as an international legal measure to temper destabilizing effects of harm from cyber infrastructure. Yet the extent to which States, particularly the United States, accept due diligence as either a principle of general international law or as a rule of conduct applicable to the context of cyberspace is not clear. This Article examines past and present U.S. experience with due diligence, both as a principle and rule of conduct in general international law. In light of U.S. foreign …

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The Missing D In U.S. Foreign Relations Law, David H. Moore Jan 2021

The Missing D In U.S. Foreign Relations Law, David H. Moore

Faculty Scholarship

United States foreign relations law once subsisted on the outskirts of constitutional and international law. Now a recognized field of scholarship in its own right, foreign relations law addresses some of the most important questions of our time, such as whether the President may unilaterally conduct strikes against Iran or withdraw from the Paris Climate Agreement. For all its importance, however, U.S. foreign relations law has developed with blinders on. U.S. foreign policy embraces at least three Ds: defense, diplomacy, and development. Yet foreign relations law scholarship has approached the critical questions of the field almost exclusively through the lens …

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Covid-19 And Its Impact(S) On Innovation, Clark Asay, Stephanie Plamondon Bair Jan 2021

Covid-19 And Its Impact(S) On Innovation, Clark Asay, Stephanie Plamondon Bair

Faculty Scholarship

In previous work, we explored how certain characteristics of adversity are often more conducive to innovation than others. In this Article, prepared as part of the Lee E. Teitelbaum Utah Law Review Symposium—The Law & Ethics of Medical Research, we review some of that work and apply it specifically to the COVID-19 context. We conclude by assessing certain policy implications in light of how the COVID-19 pandemic has both spurred and hindered innovation.

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Dignity And Discrimination, Frederick Mark Gedicks Jan 2021

Dignity And Discrimination, Frederick Mark Gedicks

Faculty Scholarship

Delivered as the Dignity in Law Symposium keynote address, this essay surveys uses of “dignity” in U.S. constitutional law, with a focus on conflicts between the dignities attached to citizenship and religious conscience. Parts I and II discuss dignity as state sovereignty and hierarchical status. Part III examines the collision of dignities in the Masterpiece Cakeshop decision. Part IV argues that attention to the public or private nature of the site where religious accommodation is demanded clarifies when accommodation is appropriate, using a house of worship and a government office as illustrations. Part V lists other sites of accommodation and …

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Christian Dignity And The Overlapping Consensus, Frederick Mark Gedicks Jan 2021

Christian Dignity And The Overlapping Consensus, Frederick Mark Gedicks

Faculty Scholarship

This Article rejects arguments by Christian leaders, scholars, and others who lament the secularization of the West and urge Christian dignity as the foundation of universal human rights. It argues instead that only a secular conception of dignity free of Christian metaphysics can create an overlapping consensus in support of human rights.

Part I describes the roots of Christian dignity in medieval theology and status. Part II briefly recounts how the Renaissance and Enlightenment re-centered the end of dignity from knowing God to knowing oneself, while the Reformation’s extension of original sin to the intellect left Catholicism as the primary …

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Small Business Disaster Relief And Restructuring, Brook Gotberg Jan 2021

Small Business Disaster Relief And Restructuring, Brook Gotberg

Faculty Scholarship

To assist small businesses in the wake of an exogenous shock, Congress should consider implementing a system of lending that models the financing provided to small business debtors in a bankruptcy proceeding. Such a system would be more targeted, effective, and fair than traditional government loans, but less stigmatizing than bankruptcy.

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Prosecutors And Mass Incarceration, Shima Baradaran Baughman, Megan Wright Jan 2021

Prosecutors And Mass Incarceration, Shima Baradaran Baughman, Megan Wright

Faculty Scholarship

It has long been postulated that America’s mass incarceration phenomenon is driven by increased drug arrests, draconian sentencing, and the growth of a prison industry. Yet among the major players—legislators, judges, police, and prosecutors—one of these is shrouded in mystery. While laws on the books, judicial sentencing, and police arrests are all public and transparent, prosecutorial charging decisions are made behind closed doors with little oversight or public accountability. Indeed, without notice by commentators, during the last ten years or more, crime has fallen, and police have cut arrests accordingly, but prosecutors have actually increased the ratio of criminal court …

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Crime And The Mythology Of Police, Shima Baradaran Baughman Jan 2021

Crime And The Mythology Of Police, Shima Baradaran Baughman

Faculty Scholarship

The legal policing literature has espoused one theory of policing after another in an effort to address the frayed relationship between police and the communities they serve. All have aimed to diagnose chronic policing problems in working towards structural police reform. The core principles emanating from these theoretical critiques is that the mistrust of police among communities of color results from maltreatment, illegitimacy and marginalization from the law and its enforcers. Remedies have included police training to encourage treating people with dignity, investing in body cameras and other technology, providing legal avenues to encourage constitutional action by police, and creating …

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A "Directed Trust" Approach To Intergenerational Solidarity In American Environmental Law And Policy: A Modest Proposal, Lucia A. Silecchia Jan 2021

A "Directed Trust" Approach To Intergenerational Solidarity In American Environmental Law And Policy: A Modest Proposal, Lucia A. Silecchia

Scholarly Articles

In recent years, much has been written about trust principles as a useful lens through which to view environmental obligations – particularly with respect to the obligations of the present generation to those who will live in the generations to come.
Underlying much of this discussion is the ancient principle of the public trust doctrine as a vehicle for meeting that intergenerational responsibility. However, while trust theory enjoys an impressive legal pedigree, it has not gained as much traction in American environmental law as might be effective for addressing contemporary environmental issues.
One reason that the trust model is not …

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Child Support And Joint Physical Custody, Raymond C. O'Brien Jan 2021

Child Support And Joint Physical Custody, Raymond C. O'Brien

Scholarly Articles

Child custody has evolved to the point where, at a minimum, states provide a mediated process by which parents may formulate parenting plans with court-appointed assistance. At a maximum state legislatures and courts increasingly consider joint physical custody awards. While joint physical custody safeguards the fundamental rights of parents, it nonetheless prompts practical concerns in awarding child support. Today, child support begins with state statutory guidelines, but the guidelines often fail to adequately address the economic consequences of two complete residences, one supported by a parent with fewer economic resources, and the fact that oftentimes the child drifts from one …

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Information Age Technology, Industrial Age Laws, Elizabeth I. Winston Jan 2021

Information Age Technology, Industrial Age Laws, Elizabeth I. Winston

Scholarly Articles

The United States patent system was born during the Industrial Age — at a time where the focus was on promoting innovation in machines, and tangible means of changing the world. With the dawn of the Information Age, innovation is increasingly intangible. The industrial age laws, as currently interpreted, are not well-suited for the changing and evolving technological world. Information age innovators face challenges at the United States Patent and Trademark Office, through the judicial system and at the United States International Trade Commission. It is time for a change in the system to reflect the realities of modern technology. …

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The Miller Trilogy And The Persistence Of Extreme Juvenile Sentences, Cara H. Drinan Jan 2021

The Miller Trilogy And The Persistence Of Extreme Juvenile Sentences, Cara H. Drinan

Scholarly Articles

In a series of Eighth Amendment cases referred to as the Miller trilogy, the Supreme Court significantly limited the extent to which minors may be exposed to extreme sentences. Specifically, in this line of cases the Court abolished capital punishment for minors and narrowed the instances when minors may be sentenced to life without parole. Only minors convicted of homicide who are found to be “in-corrigible” may now be subject to a death-in-custody sentence. In limiting extreme sentences for youth in these ways, the Supreme Court relied upon the social and medical science that demonstrates youth are simultaneously less culpable …

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Looking Beyond The Profit And Into The Light: Consumer Financial Protection And The Common Good, Veryl Victoria Miles Jan 2021

Looking Beyond The Profit And Into The Light: Consumer Financial Protection And The Common Good, Veryl Victoria Miles

Scholarly Articles

The intention of this Article is to review the various statements of Catholic Social Teaching that are fundamental in describing economic justice and that are most pertinent to any consideration of consumer financial protection as essential to the common good. This review will begin with Pope Leo XIII's 1891 encyclical Rerum Novarum and other encyclicals that followed Rerum Novarum as a continuum of Church teaching regarding social and economic justice; the pastoral letter from the United States Conference of Catholic Bishops entitled Economic Justice for All (1986); and the Pontifical Council of Justice and Peace's handbook on the Vocation of …

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Liberalism And Disagreement In American Constitutional Theory, J. Joel Alicea Jan 2021

Liberalism And Disagreement In American Constitutional Theory, J. Joel Alicea

Scholarly Articles

For forty years, American constitutional theory has been viewed as a clash between originalists and non-originalists. This depiction misunderstands and oversimplifies the nature of the debate within constitutional theory. Although originalism and non-originalism describe important differences between families of constitutional methodologies, the foundations of the disagreement among theorists are the justifications that they offer for those methodologies, not the methodologies themselves. Once the debate is refocused on the justifications that theorists offer for their constitutional methodologies, it becomes clear that the debate within constitutional theory is ultimately a debate about liberalism as a political theory. Specifically, it is a debate …

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Statutory Jurisdiction And Constitutional Orthodoxy In Mcculloch, Cohens, And Osborn, Kevin C. Walsh Jan 2021

Statutory Jurisdiction And Constitutional Orthodoxy In Mcculloch, Cohens, And Osborn, Kevin C. Walsh

Scholarly Articles

This essay examines the underappreciated element of statutory jurisdiction in McCulloch v. Maryland, Cohens v. Virginia, and Osborn v. Bank of the United States. One objective is to identify more precisely the Marshall Court’s jurisdictional innovations in these three foundational decisions. A close look at the question of statutory jurisdiction in the trio of McCulloch, Cohens, and Osborn reveals a kind of constitutional magnetism at work. In constitutional avoidance, a court adopts an interpretation in order to stay away from a constitutional problem. In contrast, the Marshall Court in Cohens and Osborn expanded the jurisdictional statutes at issue in order …

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Reconstructing Malice In The Law Of Punitive Damages, Marc O. Degirolami Jan 2021

Reconstructing Malice In The Law Of Punitive Damages, Marc O. Degirolami

Scholarly Articles

Punitive damages present two related puzzles. One concerns their object. If they are punitive, their object is to punish tortfeasors. If they are damages, their object is to compensate tort victims. If they are both, the problem is to reconcile these different objects in applying them. A second puzzle involves their subject. Punitive damages are awarded for egregious wrongdoing. But the nature of that egregiousness is nebulous and contested, implicating many poorly understood terms. The two puzzles are connected, because the subject of punitive damages will inform their object. Once we know the type of wrongfulness that punitive damages deal …

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The End Of The Affair, Marc O. Degirolami Jan 2021

The End Of The Affair, Marc O. Degirolami

Scholarly Articles

Religion and liberalism have reached a complicated entente in the law of American and European democracies. At times the relationship has been diffi- dently cordial; at others something that appeared warmer. This period marked a change from previous eras of far more open mutual hostility. Liberalism and the traditional, historically rich and influential religions—particularly Christianity— never have been allies. To the contrary, liberalism was designed in part expressly to neuter the communal and political power of religion—again, especially Christianity—and to separate law from religion for the purpose of weakening the latter. The current rapprochement has endured for more than a …

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What Makes Property Liberal?, Adam J. Macleod Jan 2021

What Makes Property Liberal?, Adam J. Macleod

Scholarly Articles

Hanoch Dagan is offering to help an institution that is in the midst of an identity crisis. For many centuries, property has found its identity in service to liberty. Liberty – both broadly construed as a practical ideal and in the technical sense of a Hohfeldian right that is the absence of duty – stood for independence from outside interference and freedom to act upon one’s own plans of action for the use and management of resources, individually and in community with those who share the same common goods. Though many people still think liberty in that sense is important, …

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Cyber Trespass And Property Concepts, Adam J. Macleod Jan 2021

Cyber Trespass And Property Concepts, Adam J. Macleod

Scholarly Articles

Access to information is the purpose of the Internet. Ask anyone born after the dawn of the information age; they will tell you that cyberspace is the place to go if one wants to know stuff. On the other hand, many of the people who put stuff on the Internet or on systems connected to the Internet will tell you that, without legal rights to control or block access, people will not have incentives to put on the Internet stuff that is worth knowing. In this tension between access and control, property is generally assumed to be on the side …

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