Law Commons^™

Obituary For The Birth Certificate, Malinda L. Seymore

SMU Law Review

Have birth certificates outlived their usefulness? Birth certificates establish an individual’s name, identity, age, race, sex and gender, parental authority, and citizenship. In addition, the information collected at the time of birth and reflected on a long-form birth certificate provides data for public health policy, population statistics, internal migration, government planning, and resource allocation. Birth certificates are also the all-access pass to American life, necessary for many functions of modern life: registering a child in school, signing a child up for soccer, getting a driver’s license and passport, enlisting in the military, and applying for government benefits. All of this, …

The Future Of Frozen Embryos, Clare Ryan, Benjamin J. Mcmichael

SMU Law Review

he 2024 Alabama Supreme Court decision in LePage v. Center for Reproductive Medicine, which declared frozen embryos to be “children,” represents a significant shift in the legal treatment of in vitro fertilization (IVF) in the United States. This Article examines the context, implications, and potential consequences of LePage for family law, tort law, and access to reproductive technologies. The Article analyzes how this shift could impact disputes over embryo disposition, establishment of legal parentage, and liability for fertility clinics. It also explores the decision’s relationship to broader debates about fetal personhood in the wake of Dobbs v. Jackson Women’s …

The Law Of First Impression, Amy J. Griffin

SMU Law Review

Judicial decision-making is governed by a complex web of unwritten operational rules—rules made by judges themselves. Some of these rules, like stare decisis or canons of interpretation, garner endless attention. Others remain unnoticed, becoming entrenched without ever being evaluated.

This Article is the first to identify and evaluate one such category of rules—those governing issues of first impression Public and academic attention is focused almost entirely on judicial fidelity to precedent, not what courts do in its absence. But issues of first impression are decided regularly by all U.S. courts, and the first impression label can have concrete legal effects. …

Front Matter

SMU Law Review

No abstract provided.

Guilty Pleas Matter: Waivers And The Forgotten Solemnity Of A Sacred Process, Julian A. Cook Iii

SMU Law Review

Approximately 98% of federal cases are resolved by means of a guilty plea. Thus, it is the guilty plea hearing, not the jury trial, that is the heart and lungs of our criminal justice system. Given the frequency of its use, coupled with the deeply impactful personal consequences that necessarily accompany a conviction, district courts play a critical evaluative and safeguarding function. As famously stated by the Supreme Court in Brady v. United States, the decision to plead guilty “is a grave and solemn act to be accepted only with care and discernment . . . .”

Guilty Pleas …

Improving Regulatory Notice, Joshua Ulan Galperin, E. Donald Elliott

SMU Law Review

Effective notice of law is the cornerstone of any legal system, and yet many federal administrative agencies do not give small businesses, NGOs, and interested citizens notice of the vast amount of new or modified law they produce. They merely publish the text in the Federal Register, which works tolerably well for larger enterprises but not their smaller competitors and citizens’ groups. Despite these facts, few scholars have explored how agencies provide notice of the law. Even fewer have proposed ways that agencies could improve the methods they use for giving more effective notice of significant regulatory changes and …

Agency Capture In Immigration Law, Shalini Bhargava Ray

SMU Law Review

Debates over administrative law doctrine and practice have long occurred in the shadow of agency capture, a phenomenon by which private interests co-opt an agency’s public mission. Scholars posit that capture often operates through the migration of agency personnel to the very industries they previously regulated and vice versa, referred to as the “revolving door.” The tremendous administrative law literature on agency capture, however, has never systematically addressed the potential relevance of capture to immigration regulation and enforcement. Given the vastness of the immigration bureaucracy, the massive annual appropriations it commands, and immigration’s salience in public discourse, the possibility of …

The Homeowner Strikes Back: The Rise Of Antisquatter Laws, Sam Fowler

SMU Law Review

Beginning in 2024, a host of states across the country began enacting or considering new laws targeting squatting that seek to expedite the removal of squatters. Generally, these antisquatting laws create criminal penalties for squatters, allow sheriffs to remove squatters, and shorten the time for eviction. This wave of legislation is generally attributed to several viral videos and news stories about squatters that seem to game the system by moving into unattended homes, even those where the rightful owners or tenants are living, and then claiming they have a lease. The owners will generally call the police, who are unable …

The Granny Flat Rebellion: Preempting Local Adu Restrictions, Andrew Welch

SMU Law Review

States around the country are increasingly facing the challenge of housing shortage and uncooperative localities attempting to keep developers out of their neighborhoods. The “Not in My Backyard” (NIMBY) groups are not representative of the American desire to create affordable housing, and allowing neighborhoods to dictate national and state policy is ineffective. Accessory dwelling units (ADUs)—small, self-contained residential units on single-family-zoned property—are a cost-effective strategy to expand housing options, promote intergenerational living, and foster economic mobility. This Comment addresses how states can chisel away at the housing crisis and how ADUs may alleviate many of the problems if they are …

Front Matter

SMU Law Review

No abstract provided.

Improving Compliance With International Humanitarian Law In An Era Of Maneuver War And Mission Command, Geoffrey S. Corn, Tyler R. Smotherman

SMU Law Review

This Article proposes a new paradigm in international humanitarian law (IHL) to help junior military leaders make ethical combat decisions that are both legally and tactically sound. Driven by the realities of modern maneuver warfare and inspired by the spirit of mission command—a concept that emphasizes quick, decentralized decisions—we propose a new philosophical framework for ethical decision making in ground combat. Specifically, we argue that the traditional balance between the IHL principles of military necessity and humanity is better suited to the detached targeting processes associated with indirect fires and air power than to the split-second decisions required in direct …

Title 18’S Property Conundrum, Karen E. Woody, Joshua L. Clardy

SMU Law Review

“Property,” in legal terms, carries significant weight. Once an object is heralded as “property,” that object becomes a step closer to being afforded the protections of the Constitution, offered equitable remedies at a court’s disposal, or even subjected to taxation by the state or federal government. Defining an object as “property” also puts it within the reach of the Title 18 property fraud statutes. Title 18’s fraud statutes have been often lauded by federal prosecutors for their “extraordinary utility.” In their current iteration, these statutes criminalize schemes to defraud “money,” “property,” and “the intangible right of honest services.” But what …

Front Matter

SMU Law Review

No abstract provided.

Levels Of Generality, The Limits Of Originalism, And The Supreme Court’S Second Amendment Jurisprudence, Amanda L. Tyler

SMU Law Review

Just how originalist is the Court’s Second Amendment jurisprudence after United States v. Rahimi? This is perhaps one of the biggest questions left in the decision’s wake. As it turns out, the answer is not altogether clear post-Rahimi. This is because the case produced some seven separate opinions, many of which—even though they agree as to the bottom line—get there by very different paths. This Article suggests that Rahimi, perhaps more than any other recent decision by the Court, underscores the crucial role that levels of generality in constitutional interpretation play, while illustrating the problems with …

The Mutability Of Dangerousness: Domestic Violence And Second Amendment Restoration After Rahimi, F. Lee Francis

SMU Law Review

This Article considers whether the Constitution permits the permanent disarmament of individuals once deemed dangerous—particularly in cases involving domestic violence. In United States v. Rahimi, the Supreme Court reaffirmed that the Second Amendment protects the right of the people to keep and bear arms, subject only to regulation consistent with historical tradition. That tradition, as examined under New York State Rifle & Pistol Association v. Bruen, does not support lifetime bans absent an ongoing threat.

The Article argues that dangerousness is not immutable. Founding-era laws recognized disarmament as a temporary, conditional measure tied to present conduct, not a …

Chapter 11 Mediation, Laura N. Coordes

Emory Bankruptcy Developments Journal

Mediation has become an increasingly popular and powerful tool in chapter 11 reorganizations, especially in large cases. Despite its widespread and growing use, mediation in chapter 11 is under-studied. This Article begins to fill this gap in the literature by critically assessing mediation, a form of largely private dealmaking, in the context of a bankruptcy process that is supposed to be largely public. The Article begins by discussing mediation’s popularity within the bankruptcy process before turning to a review of issues that have arisen in recent cases, providing a critical assessment of mediation’s promise and perils. In particular, the Article …

The Walking Debt: How Zombie Pacs Threaten Federal Elections And Proposals For Reform, Ariel Bagley

Emory Bankruptcy Developments Journal

Zombie political action committees are political entities that are legally alive but whose candidate the committee is attached to has either died or functionally retired from politics. These committees form as a byproduct of skewed incentives in campaign finance law. The Federal Election Commission (“FEC”) is tasked with enforcing campaign finance laws and terminating political committees. However, it is structurally ineffective at enforcing those laws. Congress, meanwhile, has defunded the FEC and is poorly incentivized to improve its efficacy, as any Congressperson may one day benefit from having a zombie committee. When zombies do form, they are almost impossible to …

Environmental Law—Relatively Impermanent Waters: The Need For State Regulation Of Isolated Wetlands In Arkansas After Sackett V. Environmental Protection Agency, Caroline E. O'Connor

University of Arkansas at Little Rock Law Review

No abstract provided.

Intellectual Property—Copyright Law—Ai Is “Actual Imitation:” An Argument On Why Generative Ai Should Not Be Allowed To Learn From Copyrighted Materials Without Authorization, Tj Stotts

University of Arkansas at Little Rock Law Review

No abstract provided.

Axiomatic Shifting Paradigms: Wittgenstein’S Language-Games, Gödel’S Incompleteness Theorem, Language, Law, And The Limits Of Formalism, Charles Edward Andrew Lincoln Iv

University of Arkansas at Little Rock Law Review

This Article shows how Ludwig Wittgenstein’s idea of “language-games” and Kurt Gödel’s Incompleteness Theorems mark the outer limits of legal formalism and other leading interpretive theories—textualism, originalism, and purposivism. It begins by tracing Wittgenstein’s progression from a “picture theory” of language to the view that social context drives meaning more than any simple correspondence between words and reality. Gödel’s work on formal systems, suggesting that mathematics—long held as the pinnacle of logical certainty—itself cannot be both consistent and complete, reinforces the notion that purely “logical” approaches cannot capture the full range of linguistic and social nuances at play in law. …

Criminal Law— Addressing Probation Revocation Policies In Arkansas, Hunter Willis

University of Arkansas at Little Rock Law Review

No abstract provided.

A Critical Perspective On Formative Assessment Mandates, Joshua M. Silverstein

University of Arkansas at Little Rock Law Review

Formative assessment is a hot topic in legal education. Numerous commentators maintain that such assessment improves student learning of legal skills and content. Many law schools have adopted formative assessment requirements. And the American Bar Association recently proposed changing law school accreditation standards to mandate formative assessment in the first year. This essay challenges these trends. There is a paucity of evidence that formative assessment enhances learning among law students. Much of the broader assessment literature has limited relevance in legal education. And conducting formative assessment entails serious costs that are frequently overlooked by its proponents. In sum, the evidence …

Property Law— Squaring The Mold Predicament With Arkansas Landlord-Tenant Law, Katherine James Clark

University of Arkansas at Little Rock Law Review

No abstract provided.

Executive Order 14330: A Solution In Search Of A Problem, Edward A. Zelinsky

Cardozo Law Review de•novo

President Trump’s Executive Order 14330 proclaims its determination to “democratiz[e] access to alternative investments for 401(k) investors.” Among its other provisions, Executive Order 14330 requires the Department of Labor (DOL) to “clarify the duties that a fiduciary owes to plan participants.” Such clarification shall “relieve the regulatory burdens and litigation risk that” allegedly deny 401(k) participants access to alternative investments. However, the order states, DOL’s administrative guidance on alternative investments must be “consistent with applicable law.”

The Service’S Overgenerous Tax Treatment Of Crowdfunding, Jeffrey H. Kahn

Cardozo Law Review de•novo

The Internal Revenue Service released a fact sheet that defines crowdfunding as a method to raise money on websites by soliciting contributions from a large number of people. This article considers how crowdfunding is treated for tax purposes and argues that, contrary to the fact sheet's determination, all donations collected by commercial websites should be income to the recipient.

Unconstitutional “Detours”, Zachary R. Cormier

Missouri Law Review

There is no more important context to have clear Fourth Amendment search and seizure limitations than the traffic stop. “Police pull over more than 50,000 drivers on a typical day,” resulting in seizures of “more than 20 million motorists every year.” The frequency of traffic stops is compounded by the malleability of their potential legal justifications. In Whren v. United States, the Supreme Court held that a pretextual traffic stop motivated by a desire to investigate a vehicle’s occupants for unrelated criminal activity (for which the officer does not yet have probable cause) does not violate the Fourth Amendment so …

Cognitive Decline And The U.S. Presidency: The Case Of Joe Biden, Mark Fisher, Sandy Sanbar

Health Matrix: The Journal of Law-Medicine

This article examines the intersection of cognitive health, medical ethics, and constitutional governance through the lens of President Joe Biden’s medical history and recent cognitive performance. Highlighting the absence of formal neurocognitive testing protocols for presidential candidates and sitting Presidents, it raises critical questions about transparency, accountability, and the statutory and ethical obligations of medical professionals serving in political contexts. The paper discusses Biden’s stroke history, neurosurgical interventions, and subsequent lack of documented cognitive assessments, emphasizing the implications for public trust and the constitutional duty to ensure an executive fit for office. It advocates for the implementation of standardized, objective …

Front Matter

St. Thomas Law Review

Front Matter includes Masthead, advisors, and Table of Contents for St. Thomas Law Review Volume 37, Issue 2, Spring 2025.

The Unethical Practices Of Force-Placed Insurance: How To Protect And Indemnify The Forgotten Investors Of Mortgage-Backed Securities, Devin Moore

St. Thomas Law Review

In the United States, the media has been attempting to inform homeowners of an abusive insurance policy: force-placed insurance. Force-placed insurance is a type of policy that only protects the interest of the mortgage lender or mortgage servicer, and not the homeowner. While federal and state governments have restricted force-placed insurance policies for homeowners, the laws do not protect investors of mortgage-backed securities with force-placed insurance policies. These investors have an extensive impact on the general population since their investments are funded by retirement savings plans. As a result, the investors could lose the retirement savings of millions without proper …

Repeal The Federal Arbitration Act's "Arising Out Of" Requirement, Stephen J. Ware

American University Business Law Review

Suppose Pfizer and CVS agree to arbitrate not only any disputes that might arise out of their contract containing an arbitration agreement but also any disputes that might arise out of any of the many earlier contracts between these two large corporations. Or Apple and Samsung agree to arbitrate any patent infringement claims either has against the other for the next five years. Or FedEx and UPS agree to arbitrate any tort claims either has against the other due to any collision of their vehicles in the next ten years. Or members of the Walton (Walmart) family agree to arbitrate …