Law Commons^™

An Originalist Theory Of Due Process Of Law, Randy E. Barnett

SMU Law Review

No abstract provided.

Right To Counsel In Civil Cases: Protector (And Source?) Of Substantive Due Process Rights, John Pollock

SMU Law Review

No abstract provided.

Challenges In Substantive Due Process Litigation, Nancy Leong

SMU Law Review

This Article presents the results of an empirical examination of litigation involving substantive due process claims. I have compiled a dataset consisting of every case in which a federal appellate court adjudicated a substantive due process claim during the year 2019—a total of 98 cases. This census yields important information about the context in which substantive due process rights are litigated and articulated within our civil rights enforcement scheme. As a threshold matter, I show that 92% of substantive due process cases come to the federal appellate courts as actions brought under 42 U.S.C. § 1983. This information underscores that, …

Secrecy And Transparency In Substantive Due Process Litigation, Dustin B. Benham

SMU Law Review

A few years before the recomposed Court rejected abortion rights in Dobbs, it sustained several healthcare providers’ challenge to Louisiana abortion restrictions in June Medical. History will remember that 5–4 decision mostly as one of the last major cases to interpret and apply the Casey framework.

But in the little-noticed background of the June Medical litigation, a significant dispute over sealed court records boiled over. On one side, plaintiff physicians sought anonymity and confidentiality in light of potential threats to their physical safety and patient privacy. On the other side, Louisiana asserted the public’s longstanding right to access court records …

State Constitutional Rights, State Courts, And The Future Of Substantive Due Process Protections, Jonathan L. Marshfield

SMU Law Review

By most accounts, the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization signaled a broader stagnation (and perhaps retrenchment) of federal substantive due process protections. As a result, there is now great interest in the role that state constitutions and courts might play in protecting and expanding reproductive and privacy rights. This Article aims to place this moment in state constitutional development in broader context. It makes two core claims in this regard. First, although state courts are free to interpret state constitutions as providing broader individual rights protections than those contained in the Federal Constitution, state constitutions …

From Liberation To (Re)Criminalization: Dobbs V. Jackson Women’S Health Organization, Bodily Autonomy, And The Expansion Of State Rights, Robin S. Maril

SMU Law Review

For more than a generation, the U.S. Supreme Court recognized the constitutionally protected right to an abortion, and, in turn, the dignity-affirming power of reproductive autonomy and its role in designing one’s own destiny. The Court’s endorsement of the liberatory value of bodily autonomy in Roe v. Wade, as later affirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey, rejected attempts to justify restrictive prohibitions on abortion as valid exercises of state police powers. However, the Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization threatens to fundamentally redefine the boundaries between the rights of individuals and those of …

Death After Dobbs, Kathy L. Cerminara

SMU Law Review

Courts have recognized that decisions about medical care near the end of life enjoy both common law and constitutional protections since the 1970s, when patients, their families, and the medical establishment invited legal input into those intensely private discussions. In Cruzan v. Director, Missouri Department of Health, the U.S. Supreme Court famously “strongly assumed” that substantive due process protected decisions to withhold or withdraw such treatment as arising from a fundamental liberty interest. Beginning on June 24, 2022, however, the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization prompted concern over whether substantive due process protection for end-of-life …

Renewing Educational Autonomy, Johanna Kalb

SMU Law Review

American colleges and universities are facing an unprecedented wave of state legislative actions calling into question the freedom that these institutions have long enjoyed, as well as their ability to serve increasingly diverse student populations. Current constitutional protections for academic freedom under the First Amendment are proving an inadequate defense from these types of incursions. This Article argues for a reexamination and reinvigoration of a constitutional theory of educational autonomy protected by substantive due process, drawing on both the pre-colonial models that informed the creation of American colleges, as well as the earliest cases involving state efforts to control them. …

Constraining And Licensing Arbitrariness: The Stakes In Debates About Substantive-Procedural Due Process, Helen Hershkoff, Judith Resnik

SMU Law Review

“Due process,” unmodified by the words “substantive” or “procedural,” has long marked the obligation of federal and state governments to protect individuals against arbitrary and unfettered uses of state power. Constitutional guarantees of rights to remedies and access to court date back centuries and, during the twentieth century, were reread to include all persons regardless of race, gender, and class. Moreover, the need for governments to legitimate their own decisions propelled interpretations of the Due Process Clauses of the Fifth and Fourteenth Amendments in conjunction with evolving interpretations of equal protection to ensure that courts provided even-handed treatment.

Thus, on …

The U.S. Constitution Is Not A Code: Unraveling The Idea And The Meaning Of Substantive Due Process, Simona Grossi

SMU Law Review

This Article delves into the nuanced meaning of substantive due process by tracing its historical and contemporary contexts. Beginning with the exploration of pre-ratification state constitutions, the debates surrounding ratification, and early Court views on the Constitution’s nature (perceived not as a code but an enduring collection of principles), the study then addresses the role and meaning of stare decisis as positive of history and tradition, and the role of judicial decision-making in our system starting from Marbury v. Madison. The Article concludes by linking substantive due process to universally recognized fundamental rights, emphasizing that our Constitution’s true intent is …

Front Matter

SMU Law Review

No abstract provided.

(Gun) Tag, Congress Is It!, Robert E. Wagner

SMU Law Review

The current majority of the Supreme Court has significantly increased access to firearms. In last year’s New York State Rifle & Pistol Association v. Bruen decision, the majority curtailed legislative options for protecting U.S. citizens from the danger presented by unfettered access to life-threatening weapons. The majority refused to acknowledge the danger inherent in firearms and the substantive difference in function between an antique flintlock and an AK-47. The Court’s refusal to consider the change that technology has brought to firearm capabilities has resulted in a dramatically reduced ability for any legislation to address the danger of firearms in a …

The Trilogy Of Personal Jurisdiction And The Importance Of Ford, Jonathan M. Hoffman, Michaela Cloutier, Jason Proctor

SMU Law Review

Litigants and judges alike have struggled to understand and resolve the parameters of personal jurisdiction, particularly in product liability cases. This results in significant costs and time which is likely to be of little benefit to anyone.

Much of this confusion arises from two problems: (1) most of the early Supreme Court decisions on personal jurisdiction arose from contractual disputes; and (2) when the economy expanded after World War II, and new automobiles, commercial aircraft, appliances, and other complex products appeared, the Court’s attempts to resolve personal jurisdiction issues were unsuccessful. For over three decades, the Supreme Court failed to …

Protecting “No Surprises” Journalism: Why Courts Should Preserve The Actual Malice Privilege For News Media That Include The Subject’S Response To Allegations Of Misconduct, Zachary R. Cormier

SMU Law Review

The recent onset of the “fake news” era has brought with it a wave of public discussion about the importance of ethical journalism. The sheer volume of misinformation from non-traditional online sources has had the corollary effect of also reducing the trust of many in traditional news sources. This is especially the case when the report involves alleged misconduct or scandal, which stands to potentially benefit opponents of the subject person or organization. Traditional news sources have fought vigorously to both differentiate “fake news” and reinstate public trust in sources committed to ethical journalism. But what exactly is “ethical journalism”? …

Failures In The “Laboratories Of Democracy” And Democratic Due Process As Constitutional Guardrails, Matthew C. Clifford, F. Paul Bland Jr.

SMU Law Review

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court reversed decades of precedent supporting a substantive due process right to abortion under the Fourteenth Amendment, and purported to return the question of reproductive autonomy to the “democratic process” in the states. Justice Thomas, writing in concurrence, militated for reconsidering all of the Court’s substantive due process precedents. In today’s era of democratic backsliding, these are dangerous pronouncements with grave, if not existential, implications for democracy in the United States. The Dobbs majority hazardously asserted that state-level abortion legislation would, in fact, be the result of a democratic process. …

No Transfer? No Problem!: The Federal Circuit's Excessive Use Of The Most Potent Weapon In The Judicial Arsenal For § 1404(A) Transfer Appeals, Colin Hickl

SMU Law Review

Like all federal plaintiffs, patent owners who feel their patent has been infringed have the right to file suit in any federal court, so long as venue is proper. Patent plaintiffs often select plaintiff-friendly venues, like the Eastern and Western Districts of Texas. Usually, plaintiffs may select these venues because many of the alleged infringers are large companies with a national presence, which makes them susceptible to suit in many federal courts around the country. Defendants in patent cases often file a motion under 28 U.S.C. § 1404(a) to transfer a case to a more defendant-friendly venue, on the basis …

Data Milkshakes: The Rule Of Capture And The Constitutionality Of Data Mining, Bryce Pilawski

SMU Law Review

This Comment examines, explains, and attempts to reconcile the federal judiciary’s implicit reasoning behind the lax protection of metadata in years past, specifically through the lens of the Rule of Capture. With the goal of explaining the historical hesitance courts have shown when protecting metadata, this Comment illustrates why this hesitance is actually motivated by reasoned restraint rather than a mere refusal to protect. In fact, through the lens of the Rule of Capture, metadata tracks the characteristics of resources that have traditionally counseled for the Rule’s application, specifically that the resource is: (1) emerging in value and (2) difficult …

The Ultimate Metaverse Match: An Analysis Of First Amendment Protections And Unauthorized Trademark Use In Non-Fungible Tokens, Alena Khan

SMU Law Review

The First Amendment has long provided protections for artists’ creative expression and is a fundamental right for all United States citizens. However, with the rise of a predominantly digital world, those protections begin to blur with the introduction of non-fungible tokens (NFTs). Artistic creation often stems from an inspired source, and sometimes, that inspiration may come from registered intellectual property, specifically trademarks. Trademarks are everywhere we look, so it is not unusual for artists to be inspired by the logos, images, colors, figures, or symbols that are featured on billboards, magazine covers, or everyday items. When these trademarks are used …

Lessons Learned From The Pandemic: Syracuse University Women Embraced The Online Pivot In Leadership Education, Michele G. Wheatly, Lavonda N. Reed, Marie Garland, Candace C. Jackson

Articles

Women are underrepresented in higher education leadership. Many institutions offer women-only programs to bridge the gap to career advancement. COVID-19 has compounded existing gender inequities and raised concern about long-term setbacks for women. Recognizing the need to equip women to enter the postpandemic talent pool, a Women in Leadership program at Syracuse University rapidly pivoted to online delivery in the 2020–2021 academic year. The current paper reports dramatic increases in offerings, quality, and participation during the online pivot compared to in-person programming the preceding year. The pivot broadened access to women and strengthened their networks for career advancement. Integrated programming …

Rightsizing Local Legislatures, Brenner M. Fissell

Faculty Publications

Local councils, boards, and commissions have all the lawmaking powers of a legislature—including the power to criminalize conduct—but they are far too small to deserve them. With an average size of only four members, local legislatures depart from the norm observable at all other levels of government. Only in the past few years have legal scholars turned their attention to the institutional design of these bodies, but this developing literature has yet to address their most striking feature—their small size.

This Article takes up this project. It claims that local microlegislatures are comparatively unrepresentative and undemocratic, and that their size …

Why Criminal Defendants Cooperate: The Defense Attorney's Perspective, Jessica A. Roth, Anna D. Vaynman, Steven D. Penrod

Articles

Cooperation is at the heart of most complex federal criminal cases, with profound ramifications for who can be brought to justice and for the fate of those who decide to cooperate. But despite the significance of cooperation, scholars have yet to explore exactly how individuals confronted with the decision whether to pursue cooperation with prosecutors make that choice. This Article—the first empirical study of the defense experience of cooperation—begins to address that gap. The Article reports the results of a survey completed by 146 criminal defense attorneys in three federal districts: the Southern District of New York, the Eastern District …

The Private Attorney General In A Time Of Hyper-Polarized Politics, Myriam E. Gilles

Articles

With the enactment of the Federal Trade Commission Act (“FTC Act”) in 1914 and the Wheeler–Lea Act in 1938, Congress sought to establish a brawny federal consumer protection regime to guard against the myriad unfair and deceptive practices that threatened harm to American consumers. But courts in this era interpreted these statutes to confer exclusive enforcement authority in the Federal Trade Commission (“FTC”), declining to infer a private right of action. For many decades, the resulting enforcement gap in consumer protection law was filled largely by state Unfair and Deceptive Practices Acts (“UDAPs”), which sanction litigation by both public and …

Unsettling Human Rights Clinical Pedagogy And Practice In Settler Colonial Contexts, Jocelyn Getgen Kestenbaum, Caroline Bishop Laporte

Articles

In settler colonial contexts, law and educational institutions operate as structures of oppression, extraction, erasure, disempowerment, and continuing violence against colonized peoples. Consequently, clinical legal advocacy often can reinforce coloniality--the logic that perpetuates structural violence against individuals and groups resisting colonization and struggling for survival as peoples. Critical legal theory, including Third World Approaches to International Law (“TWAIL”), has long exposed colonial laws and practices that entrench discriminatory, racialized power structures and prevent transformative international human rights advocacy. Understanding and responding to these critiques can assist in decolonizing international human rights clinical law teaching and practice but is insufficient in …

Remote Justice & Domestic Violence: Process Pluralism Lessons From The Pandemic, Andrea K. Schneider, Heather Hlavka, Sameena Mulla, Erin Schubert, Aleksandra J. Snowden, Jennica Webster

Articles

Domestic violence procedures, like so many court processes around the world, were forced to go online and remote during the pandemic. The impact was dramatic-there were fewer restraining order petitions filed in the first place and an even lower amount granted. In short, domestic violence survivors, among the most vulnerable in our court system, were even more challenged in the last two years. Like many court systems, Milwaukee will never go back to being fully in-person for all procedures in conjunction with domestic violence. The evolving hybrid choices could provide additional access to justice, or these processes could create additional …

Commercially Reasonable Sales In The 21st Century, David G. Carlson

Articles

It has been over 20 years since the 2000 amendments profoundly amended the foreclosure procedures in Article 9 of the UCC. This article reviews how the amendments have fared in the case law since then.

Extralegal Bias In The United States Military In Sexual Assault Cases, Taylor F. Blackston

College of Graduate Studies: Theses & Dissertations

By evaluating the case recommendations following a preliminary hearing from military sexual assault cases from fiscal years 2016-2018, this study aims to assess whether or not extralegal factors are influencing decisions of case recommendations of assigned convening authorities. Using secondary data from the Department of Defense’s annual reports on sexual assault in the United States military (n=5,171), this study aims to answer the following questions: Do extralegal factors contribute to convening authorities’ recommendations following Article 32 hearings? If so, what extralegal factors contribute to convening authority's decision on non-judicial hearing recommendations? The results of the following analyses identified several extralegal …

Of Systems Thinking And Straw Men, Kate Klonick

Faculty Publications

(Excerpt)

In Content Moderation as Systems Thinking, Professor Evelyn Douek, as the title suggests, endorses an approach to the people, rules, and processes governing online speech as one not of anecdote and doctrine but of systems thinking. She constructs this concept as a novel and superior understanding of the problems of online-speech governance as compared to those existent in what she calls the “standard [scholarly] picture of content moderation.” This standard picture of content moderation — which is roughly five years old — is “outdated and incomplete,” she argues. It is preoccupied with anecdotal, high-profile adjudications in which platforms …

Get Out: Structural Racism And Academic Terror, Renee Nicole Allen

Faculty Publications

Released in 2017, Jordan Peele’s critically acclaimed film Get Out explores the horrors of racism. The film’s plot involves the murder and appropriation of Black bodies for the benefit of wealthy, white people. After luring Black people to their country home, a white family uses hypnosis to paralyze victims and send them to the Sunken Place where screams go unheard. Black bodies are auctioned off to the highest bidder; the winner’s brain is transplanted into the prized Black body. Black victims are rendered passengers in their own bodies so that white inhabitants can obtain physical advantages and immortality.

Like Get …

Mysterizing Religion, Marc O. Degirolami

Faculty Publications

(Excerpt)

A mystery of faith is a truth of religion that escapes human understanding. The mysteries of religion are not truths that human beings happen not to know, or truths that they could know with sufficient study and application, but instead truths that they cannot know in the nature of things. In the Letter to the Colossians, St. Paul writes that as a Christian apostle, his holy office is to “bring to completion for you the word of God, the mystery hidden from ages and from generations past.” Note that Paul does not say that his task is to make …

Didn’T I Cover That In Class? Low-Stakes Technique Of Quizzing To The Rescue, Robin Boyle-Laisure

Faculty Publications

(Excerpt)

We all have had those moments when students’ papers do not reflect an important lesson covered in class. For instance, if teaching persuasive writing, you have likely instructed your students to use a full sentence for their point headings in their briefs, only to find phrases where sentences should have been used. Consequently, you find yourself making the same written comments on papers or verbal comments in conferences with students, beginning with, “As I had instructed in class…” In his groundbreaking book, Experiential Learning, researcher and theorist David Kolb introduced the concept of “deep learning,” which can remedy …