Law Commons^™

In Honor Of The Distinguished Service Of Paul Rogers To Smu Community, David Haley

SMU Law Review

No abstract provided.

Potential Competitors’ Antitrust Standing Against Preemptive Acquisitions, Frank Lior, C. Paul Rogers Iii

SMU Law Review

This Article revolves around potential competitors’ “antitrust standing” rights in private merger litigation, especially against preemptive acquisitions. It builds upon various cases in which courts had explicitly recognized that a potential competitor has standing to challenge an allegedly anticompetitive merger that foreclosed it from entering the market dominated by an incumbent firm. Such mergers can be categorized as “strategic preemptive acquisitions.” Specifically, the courts held in these particular cases that the potential competitor’s “antitrust injury,” that is—exclusion from the relevant market—stems from the incumbent’s intentional and strategic acquisition of a company or set of assets that were required for the …

An Alternate History Of Chevron, With A Lesson For Today, Michael E. Herz

Articles

It is a banal truism that judicial deference to agency decisionmaking enables the executive branch to pursue its agenda, whatever that agenda may be. That was obvious to all in the early years of the Chevron decision, which was greeted enthusiastically on the right and skeptically on the left. In Chevron itself, and for a while thereafter, deference advanced the Reagan deregulatory program. Over the years, a subtler conclusion gained consensus: overall and in the long haul, judicial deference is likely to have a net pro-regulatory impact. Hence the right’s hardened opposition to Chevron leading up to its demise. But …

Examining The Presence And Effects Of Coherence And Fragmentation In The Gulf Of Maine Fishery Management Network, Derek A. Katznelson, Antonia Sohns, Dongkyu Kim, Evelyn Roozee, William Donner, Andrew M. Song, Jasper R. De Vries, Owen Temby, Gordon M. Hickey

School of Earth, Environmental, & Marine Sciences Faculty Publications

Natural resource management networks cohere due to mutual dependencies and fragment, in part, due to the perceived risks of interaction. However, research on these networks has tended to accept coherence a priori rather than problematizing dependence, and few studies exist on interorganizational risk perception. This article presents the results of a study operationalizing these concepts and measuring the distribution of three types of dependence (capital, legitimacy, and regulatory) and two types of perceived risk (performance and sanction) among nearly fifty stakeholder groups and organizations participating in the management of fisheries in the binational Gulf of Maine. The analysis reveals an …

Undo Process: Examining Agency Procedural Levers To Access To Counsel, Haiyun Damon-Feng

Articles

Every day, through internal adjudicative proceedings, agencies make thousands of rights determinations that affect critical matters such as financial security, family unity, personal safety, and individual liberty. Scholars and policymakers have recognized the significant impact that representation can have on adjudicative outcomes across the administrative state. Many agencies have implemented policies affirmatively seeking to boost an individual's ability to bring an advocate to assist with the adjudication process. In the immigration context, however, agencies have enacted procedural hurdles that have made it more difficult for individuals to reap the benefits of this assistance.

This Essay uses recent developments in the …

The Immigration Subpoena Power, Lindsay Nash

Articles

For over a century, the federal government has wielded the immigration subpoena power in darkness, forcing private individuals, subfederal governments, and others to help it detain and deport. This vast administrative power has remained opaque even to those who receive these subpoenas and invisible to those it affects most. Indeed, the very people targeted by these subpoenas often don’t know they exist, much less how they facilitate arrest and deportation. For these reasons—and more—this power has escaped the legal battles raging over other immigration enforcement tactics and the scrutiny of journalists, scholars, and courts. Thus, as state- and locality-held information …

Coopting Disruption, Mark A. Lemley, Matthew Wansley

Articles

Our economy is dominated by five aging tech giants – Alphabet, Amazon, Apple, Meta, and Microsoft. In the last twenty years, no company has commercialized a new technology in a way that threatens them. Why?

We argue that the tech giants have learned how to coopt disruption. They identify potentially disruptive technologies, use their money to influence the startups developing them, strategically dole out access to the resources the startups need to grow, and seek regulation that makes it harder for the startups to compete. When a threat emerges, they buy it off. And after they acquire a startup, they …

Rectifying The Rome Statute And Draft Articles On Prevention And Punishment Of Crimes Against Humanity To Include The Slave Trade, Jocelyn Getgen Kestenbaum

Articles

The slave trade is commonly misperceived as a historical crime. Yet, the scourge of the slave trade is present throughout the world today. Combatting these ongoing atrocity crimes is essential to ensure that human rights are upheld by the international community. The crime of the slave trade fills an impunity gap, especially in light of recentharms perpetuated by the Islamic State of Iraq and Syria (ISIS) against the Yazidi in Iraq. Revitalization of the conceptualization of the slave trade as a crime under international law might ensure greater enforcement of one of the oldest core international crimes. Critical proposed amendments …

The Impossibility Of Religious Equality, Zalman Rothschild

Articles

The Supreme Court has recently adopted a new rule of religious equality: Laws unconstitutionally discriminate against religion when they deny religious exemptions but provide secular exemptions that undermine the law’s interests to the same degree as would a religious exemption. All the Justices and a cadre of scholars have agreed in principle with this approach to religious equality. This Essay argues that this new rule of religious equality is inherently unworkable, in part because it turns on treating that which is religious the same as its secular “comparators.” But religion is not comparable to anything neither in terms of its …

Decision-Making Supports And Cognitive Decline, Rebekah Diller

Articles

For persons with a range of cognitive disabilities, supported decision-making, rooted in a human rights approach to disability, has emerged as a tool that permits them to make legally binding decisions and avoid guardianship. As supported decision-making policy has evolved in the United States, state statutes have primarily focused on formal agreements through which individuals can designate trusted supporters to assist in obtaining information, processing that information, and communicating a decision. This Article argues that supported decision-making has promise for preserving the autonomy of persons living with dementia, but that the model of a supported decisionmaking agreement embodied in the …

Decentering Property In Fourth Amendment Law, Michael C. Pollack, Matthew Tokson

Articles

For the past several decades, privacy has been the primary conceptual foundation for Fourth Amendment search law. The canonical test for Fourth Amendment searches accordingly looks to whether the government has violated a person’s reasonable expectation of privacy. Yet privacy is no longer the sole determinant of Fourth Amendment protection, as the Supreme Court has recently added a property-based test to address cases involving physical intrusions on land or chattel. Further, given the ambiguity of the reasonable expectation of privacy test, a variety of influential judges and scholars have proposed relying primarily, or even exclusively, on property in determining the …

Crypto Chaos In The Courtroom: Navigating Bankruptcy’S Digital Gold Rush, Grayson Timmins

SMU Law Review

The explosion of cryptocurrency, along with other digital assets, has led to many new transactions and investment opportunities for those interested in broadening their portfolios. While cryptocurrency is new, the failure of a cryptocurrency exchange requires the application of the same bankruptcy procedures in the same way as parties using traditional U.S. currency. In bankruptcy, these intangible assets are designated property of the estate and are deemed subject to the court’s jurisdiction. At this point, an issue arises: Once classified as property of the estate, how should crypto be classified?

The lack of regulatory infrastructure regarding this classification further complicates …

Privatizing Child Welfare: Texas’S Gamble With Community-Based Care, Grace Byers

SMU Law Review

There are arguably few populations with greater vulnerability in the United States than children in active child welfare cases. Beyond the abuse or neglect that triggered a child welfare investigation, the child will endure the trauma of having their life uprooted. A child may encounter dozens of people throughout a child welfare case: investigators, police officers, caseworkers, doctors, psychologists, judges, foster parents, and many others. At this critical junction in a child’s life, the state is appointed as the child’s legal conservator to care for the child, find them a temporary home, and provide services to them and their parents …

Sffa V. Harvard: Racial Triangulation And The Invidious Myth Of Colorblindness, Philip Lee

Faculty Publications

(Excerpt)

In Students for Fair Admissions, Inc. (SFFA) v. President and Fellows of Harvard College, a case in which the Supreme Court ended the longstanding practice of race-conscious admissions in higher education, Asian Americans were used as a wedge between White people and non-Asian minorities to eradicate a mechanism that fostered greater racial diversity in student bodies in many highly selective institutions across the country. A majority of Supreme Court justices justified their decision in the name of “colorblindness.” However, the way the justices positioned Asian Americans against other people of color was not colorblind. It was consistent with …

Appendix: Selected Quotes From Prosecutors' Interview Responses, Anna Arons

Faculty Publications

No abstract provided.

Prosecuting Families, Anna Arons

Faculty Publications

Hundreds of thousands of parents are prosecuted in the family regulation system each year. Their cases are investigated by family regulation agencies and prosecuted by lawyers employed by the government—family regulation prosecutors. Like police and prosecutors in the criminal legal system, this family regulation prosecutorial team wields immense power, particularly over race–class subjugated communities. Yet even as scholarship on criminal prosecutors and on the family regulation system has proliferated, the role of family regulation prosecutors has gone underexamined and undertheorized.

This Article offers a critical examination of the role of these family regulation prosecutors. Drawing on a variety of primary …

Recognition Policies, Self-Determination, And Access To Legal Redress For Indigenous Peoples In The United States, Australia, And Canada: A Comparative Study, Christian Zavardino

Cardozo International & Comparative Law Review

The note examines recognition policies and self-determination frameworks for Indigenous Peoples in the United States, Australia, and Canada, arguing that the U.S. federalist system of tribal recognition offers a potential model for addressing Indigenous rights in other countries, particularly Australia. It emphasizes the importance of international law, such as the UN Declaration on the Rights of Indigenous Peoples (UNDRIP), in guiding domestic policies and promoting Indigenous sovereignty.

Scaling 'Reverse Cfius': A Comparative Review Of Outbound Foreign Investment, Hannah Pérez

Cardozo International & Comparative Law Review

The note examines the evolution of U.S. regulations on outbound foreign investments, particularly under Executive Order 14105, known as "Reverse CFIUS," aimed at mitigating national security risks by restricting investments in critical industries in countries like China. It explores the legal, economic, and geopolitical implications of these regulations and compares them with similar measures in the EU, Japan, and Australia, emphasizing the need for international cooperation to effectively address these security concerns.

Harmonizing Copyright: Navigating Pop Music's Creative Landscape In The Era Of Arnstein And Krofft, Evan Joseph

Cardozo Arts & Entertainment Law Journal

This Note explores how the Arnstein and Krofft tests negatively impact pop music in an age where pop music is constantly evolving. It discusses the specific ways in which the tests can discourage creativity, innovation, and fair competition in the pop music industry. It also argues for reform of copyright law to address the shortcomings of the Arnstein and Krofft tests. Part I defines and provides a brief overview of the history of pop music and copyright infringement, while also discussing the importance and economic value of pop music in society. This Part also explains the gravity behind these claims, …

Al Assisted Inventing And Its Impact On The Patent System, Ben Gross

Cardozo Arts & Entertainment Law Journal

The note examines the challenges posed by AI-assisted inventing to the patent system, particularly focusing on the "black box" nature of AI, which obscures the inventive process and complicates patent requirements such as inventorship and disclosure.

Antitrust And Console Gaming: Preventing Macrocompanies With Microtransactions, Cameron Brody

Cardozo Arts & Entertainment Law Journal

The note examines antitrust concerns in the console gaming industry, focusing on corporate consolidation and the impact of microtransactions. It argues that traditional antitrust strategies, such as foreclosure arguments, have proven ineffective in addressing these issues. The analysis suggests that microtransactions, particularly their role in exploiting consumers and consolidating market power, should be a focal point for new antitrust enforcement strategies. Regulators are urged to consider the broader implications of microtransactions on market structure and consumer welfare to develop innovative approaches to antitrust law.

Time For A Clean Finish? Analyzing A New Path To Collective Bargaining At The Wwe, Paige Green

Cardozo Arts & Entertainment Law Journal

The note argues that professional wrestlers in the WWE face significant challenges in achieving fair compensation and better working conditions due to their classification as independent contractors, which denies them protections under the National Labor Relations Act (NLRA). It proposes that leveraging antitrust law could provide an alternative and effective strategy for wrestlers to collectively bargain and improve their circumstances, drawing parallels to successful efforts by UFC fighters.

Spotify's Dj Algo: An Analysis Of Copyright Infringement Risks In A.I.- Powered Music Curation, Eddie Halwani

Cardozo Arts & Entertainment Law Journal

The note examines the legal and policy implications of Spotify's AI-powered music curation, arguing that while its use of copyrighted material may constitute copyright infringement, it qualifies as fair use under the transformative and non-expressive purposes doctrine. However, the analysis highlights the need for economic reforms to ensure equitable compensation for rights holders and sustainable innovation.

Hospitals Pay The Price: Sex Abuse Cover-Ups Accountable Under New York Adult Survivors Act, Olivia Cohen

Cardozo Journal of Equal Rights & Social Justice

The note argues that hospitals often fail to address sexual abuse, prioritizing their reputations over patient safety, and that the New York Adult Survivors Act (NYASA) provides a critical but insufficient avenue for accountability. While the NYASA allows survivors to sue abusers and enabling institutions, its one-year lookback window excludes many victims, emphasizing the need for expansion to ensure justice and institutional reform.

From Proposal To Practice: Unpacking The Failed New Jersey Joint Custody Bills And Their Implications For Domestic Violence Victims, Jenna Rosenstein

Cardozo Journal of Equal Rights & Social Justice

The note critically examines the failed 2018 New Jersey bills proposing a presumption of joint legal and physical custody in child custody matters, arguing that such measures may inadvertently harm victims of domestic violence by shifting the burden of proof onto them and failing to account for the complexities of abuse. It advocates for a more nuanced legal framework that balances shared parenting with the safety and well-being of domestic violence victims and their children.

Artificial Intelligence And Its Exploitation By The Fashion Industry, Stephanie Solis-Kepes

Cardozo International & Comparative Law Review

The note explores the transformative impact of artificial intelligence (AI) on the fashion industry, highlighting its potential to enhance efficiency, innovation, and customer experience. However, it underscores the critical legal and ethical challenges, including data privacy, intellectual property rights, supply chain transparency, and diversity issues, that must be addressed to ensure responsible and equitable adoption of AI technologies.

"Baby-Steps For Baby Business": Diverse Market, Challenges, And Workable International Regulation For Cross-Border Commercial Surrogacy, Ellene Ko

Cardozo International & Comparative Law Review

The note examines the rapid growth of transnational commercial surrogacy as a multibillion-dollar industry, driven by assisted reproductive technologies and fertility tourism. It highlights the legal conflicts and challenges arising from the patchwork of international surrogacy regulations, including issues of citizenship, exploitation, and enforcement of cross-border contracts. The analysis advocates for an international convention to establish a clear legal framework for transnational surrogacy, emphasizing the need for shared responsibility between global and national oversight bodies to prevent exploitation and ensure ethical practices.

"A Signature At Gunpoint" - Reframing Forced Sales And Sales Under Duress In Nazi-Looted Art Disputes, Ethan Ashley

Cardozo International & Comparative Law Review

The note advocates for recognizing forced sales of art during the Nazi era as sales under duress and proposes a legal presumption of duress to facilitate restitution for heirs. It suggests amending the Holocaust Expropriated Art Recovery (HEAR) Act of 2016 to include this presumption, shifting the burden of proof to defendants to demonstrate that sales were voluntary. This change aims to address inconsistent court rulings and ensure fairer outcomes for claimants.

Reframing Puerto Rican Advocacy: How The Emerging U.S.-China Rift Can Help Puerto Rico Realize Greater Autonomy, Michael Angelo Tabrizi

Cardozo International & Comparative Law Review

The note advocates for reframing Puerto Rican decolonization efforts as a foreign policy issue rather than solely a domestic matter, leveraging the U.S.-China rivalry to gain international support and alignment with the United Nations' principles on self-governance.

Police Brutality As Democide In The United States: The Supreme Court’S Acquiescence To Police-Civilian Violence, Jillian Fantuzzi

Cardozo International & Comparative Law Review

"Never again" is a power phrase used by survivors, observers, scholars, and descendants of survivors when reflecting on the mass casualties of innocent civilians resulting from government methods, like Nazism, ethnic cleansing, communism, and genocide, to exterminate groups deemed different or less than. Many blame dictatorial regimes for these mass atrocities, making democracy appear as a sound solution due to its attractive system ofchecks and balances. However, where the government agents responsible for mass killings of unarmed civilians remain unchecked by the judiciary, the product is not democracy but "democide." This unchecked power serves as a method of persecution of …