Law Commons^™

Innovation Misunderstood, Maurice E. Stucke, Ariel Ezrachi

American University Law Review

Innovation is transformative and key to future prosperity. It is therefore of no surprise that antitrust laws seek to promote it. What is surprising, however, is that despite the central role that innovation occupies in competition cases, its actual treatment by the courts is far from nuanced. In this paper, we reflect on the D.C. Circuit’s 2023 ruling in New York v. Meta to illustrate the prevailing monocular vision adopted by the court in its treatment of innovation. That vision, we argue, reflects simplistic assumptions as to innovation dynamics and mistaken beliefs about the digital economy. It is further compounded …

Responsible Governance And Tribal Customary Rights, Kekek Jason Stark

Faculty Law Review Articles

This article explores the question of how tribal constitutional law is interpreted and controlled by traditional tribal law principles in the context of tribal customary rights. Specifically, this article addresses the notion of whether an action, by the tribal government or a citizen, can infringe on the fundamental rights of citizens or whether the infringing action is limited by the customary obligation of responsible governance. This article addresses these competing views and argues that tribal courts can restore harmony—the goal of tribal law—by ensuring responsible governance through the appropriate balancing of tribal customary rights with the need for tribal government …

Conservation As Multiple Use, Sandra B. Zellmer

Faculty Law Review Articles

The world is facing unprecedented species extinctions, wrought in large part by climate change. Slashing greenhouse gas emissions is one crucial response to the climate/biodiversity crisis. The conservation of intact ecosystems and the life-sustaining services they provide is another. This goal will be beyond reach if conservation commitments do not cover federal public lands, particularly multiple use lands.

The Bureau of Land Management (“BLM”) has recently proposed a pathbreaking new rule that explicitly defines conservation as a multiple use. In doing so, the Conservation and Landscape Health Public Lands Rule (“Conservation Rule”) puts conservation on par with other statutorily listed …

Going Federal, Staying Stateside: Felons, Firearms, And The "Federalization" Of Crime, Jonathan Abel

American University Law Review

Scholars have long debated the federalization of crime. Proponents assert that federal prosecutions are more likely than state prosecutions to result in convictions and severe punishments, and thus more likely to deter crime. Opponents argue that federalization leads to the arbitrary, and even racist, punishment of a few unlucky defendants plucked from a sea of similarly situated peers. Everyone seems to agree about one thing, though: the federal system outstrips the state system in effectiveness and severity. Yet, no one has obtained the state-court data needed to substantiate these comparisons. This Article fills that gap with an examination of the …

Searching For Truth That Speaks To Power: Free Speech And Equality On Campus, Stephen M. Feldman

American University Law Review

University campuses are being rent apart in disputes pitting free expression against equality [read: diversity, equity, and inclusion]. Yet scholarly discussions and university declarations widely agree: While universities should encourage an inclusive educational environment, free-speech principles prohibit universities from restricting or punishing hate speech, group libel, and other forms of offensive expression. This Article argues that this prioritizing of free speech over equality on campus is mistaken. Equality should often be favored over free expression in campus settings. Although Supreme Court precedents are ambiguous, one can reasonably argue that the doctrine allows universities to restrict and punish offensive expression, including …

From Rancid To Reasonable: Unfair Methods Of Competition Under State Little Ftc Acts, Samuel Evan Milner

American University Law Review

When Congress gave the Federal Trade Commission the power to identify and enjoin unfair methods of competition, it did not create a parallel private right of action as it had for other antitrust laws. Yet approximately two dozen states have since enacted their own “Little FTC Acts,” under which private plaintiffs may sue for damages and other remedies. These poorly understood state laws are actively shaping American competition policy on a national scale. The Ninth Circuit recently affirmed the nationwide injunction that Epic Games obtained against Apple under California’s law despite concluding that Apple violated no federal or state antitrust …

Insuring Judgements And The Disclosure Gap, Jonathan Stroud, Sam Korte

American University Law Review

Judgment preservation insurance (“JPI”) is a newer, under-the-radar financial innovation upending the litigation landscape today. By insuring plaintiffs' trial victories on appeal, these policies neutralize the risk of reversal, but have been criticized for preventing settlement and extending disputes. Despite JPI's growing use, a regulatory blind spot allows these policies to remain concealed from the courts throughout the appellate process. We spotlight JPI, contrast it with widely used litigation insurance products, and propose appellate disclosure requirements in line with existing insurance disclosure rules. These simple changes would close the disclosure gap on appeal.

Review Of Veterans Law Decisions Of The Federal Circuit 2022-2023 Edition, Yelena Duterte, Hugh Mcclean, Stacey-Rae Simcox

American University Law Review

In 2022 to 2023, the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) continued its conversation with the Court of Appeals for Veterans Claims (“Veterans Court”), Department of Veterans Affairs (“VA”), and veterans to help sculpt the jurisprudence coming from the youngest of the federal courts, the Veterans Court. The Federal Circuit’s jurisprudence addressed ten main legal issues: class actions, petitions for writ of mandamus under the All Writs Act, defining standards of proof with the term “results from,” the benefit of the doubt doctrine post-Lynch, education benefits, less than honorable discharges, the rating schedule, implicit denials, equitable …

A Year In Review: The Federal Circuit's 2023 Government Contract Law Decisions, Sophie Marsh, Taylor Mcdaniels, Allison Moors

American University Law Review

This Article continues previous in-depth reviews of government contract law cases decided by the Federal Circuit and published by the American University Law Review. In 2023, the Federal Circuit clarified the appropriate standard of review, emphasizing that, more likely than not, the Boards of Contract Appeals should apply a de novo standard of review. Additionally, the court set significant judicial precedent by holding that the issues of party standing, timely raising a solicitation defect, and asserting a sum certain are nonjurisdictional. Finally, the court also issued decisions concerning implied-in-fact contracts, excusable delays, and the importance of reporting unallowable costs.

Artificial Intelligence And Weaponized Illusions: Methodologies For Federal Fraud Prosecutions Involving Deepfakes, Andrew W. Eichner

American University Law Review

Experts in the public and private sectors have vocalized concerns over the potential harms that can be inflicted when artificial intelligence (AI) is used maliciously. As AI technology increases in availability, it will become more accessible to criminal actors and allow for the emergence of new kinds of fraudulent schemes. Deepfakes are highly realistic AI-rendered depictions of individuals that criminals have already used to perpetrate fraud on an international scale. These renderings mimic third parties known to victims, allowing fraudsters to leverage the trust and familiarity of an existing relationship to perpetrate their schemes. The deepfake is used to convince …

Litigating Original Meaning From Heller To Rahimi: The Role Of Lawyering In The Confused Path Of Second Amendment Jurisprudence, Lawrence Rosenthal

American University Law Review

The Second Amendment is on a jurisprudential march. An individual right to “keep and bear arms” for purposes unrelated to militia or military service was not recognized until the Supreme Court’s 2008 decision, applying what it took to be the original meaning of the “right to keep and bear arms” found in the Second Amendment, in District of Columbia v. Heller. Subsequently, the Court, in New York State Rifle & Pistol Ass’n v. Bruen, invalidated a statute requiring a permit to carry concealable firearms on a showing of particularized need. Most recently, in United States v. Rahimi, …

The Downstream Consequences Of Transunion Llc V. Ramirez: Why 5 U.S.C. § 2954 Plaintiffs Have Article Iii Standing Consistent With Lower Courts’ Interpretation Of Transunion, Erin Mccoy

American University Law Review

The Supreme Court, in TransUnion LLC v. Ramirez, created additional standing hurdles by requiring plaintiffs to identify a common law historic-analogue when alleging a statutory harm. In doing so, the Court arguably limited informational standing—a unique Article III standing theory whereby plaintiffs may establish an injury for failure to receive information—because informational injuries did not exist at common law.

This Comment asks whether informational standing survives in a post-TransUnion universe, using 5 U.S.C. § 2954 and lower courts’ interpretation of TransUnion for guidance. The statute, § 2954, comes to light in a string of litigation involving the potential illegality …

Seed Patents: Enabling Innovation Beyond Biological Deposits, Ellaina Sanders

American University Law Review

In J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred International, Inc., the Supreme Court held that new sexually reproducing plant varieties are patentable subject matter. This allowed breeders and seed companies to protect their intellectual property in new seeds by obtaining utility patents so long as they meet the other statutory requirements, such as enablement. Unlike other intellectual property protection for new plant varieties, utility patents require the patent disclosure to include enough information that a person of ordinary skill in the art could make and use the invention without undue experimentation. In In re Wands, the Federal Circuit …

Network Capabilities In Land Use And Disability Law, Robin Paul Malloy

American University Law Review

Our communities must be made safe and easy to navigate by people with disabilities and by those who are seeking to age in place. This requires us to do land planning and zoning in a cost-conscious way that empowers a diverse population to readily participate in community life. Accomplishing this goal involves working at the intersection of land use law and disability law. This means we must work at the intersection of competing legal frameworks, one based on the exercise of the sovereign police powers and the other based on the prevention of discrimination under civil rights law.

The fundamental …

The Rule Against Perpetual Celebrity, Yvette Joy Liebesman

American University Law Review

Post-mortem Right of Publicity (ROP) statutes have grown from relative obscurity and of little value to a reliable source of nonwage income for those lucky enough to be the legatees of a famous now-deceased person. Unlike most other intellectual property rights, there is no federal ROP statute. Rather, an individual’s ROP—both while alive and post-mortem—is governed by state law. This has led to a widespread range of term lengths for this right among the states that have either common law or statutory post-mortem ROP rights.

While there might be some value in them, if the post-mortem ROP term is too …

The Effects Of Jurisdictional Variances On Rates Of Rape Offenses: How Differing Jurisdictional Definitions Contribute To America’S Rape Culture, David Lopez-Herrera

Theses and Dissertations

This study examines the relationship between jurisdictional definitions of rape and rape offense rates across various states in the U.S., with the goal of proposing a standardized federal definition to enhance consistency in data collection and improve the efficacy of legal responses. Despite extensive research on rape, no prior studies have explored the impact of jurisdictional definition variances on state rape offense rates. This seminal study aimed to fill this gap by analyzing the correlation between state-specific rape definitions and reported rape offenses, utilizing a theoretical breakdown of definitions into eight components and a rubric for evaluation.

The analysis revealed …

Extra-Legal Uses Of Tm, Clark Asay, Lareina Hingson, Stephanie Plamondon

Faculty Scholarship

Theoretical accounts of trademark law suggest that trademarks serve multiple marketplace functions, including protecting consumers and producers from unfair dealing, reducing consumer search costs, and incentivizing higher quality goods and services. Producers of goods and services often use the ‘TM’ symbol to signal their assertion of legal rights in a mark, arguably helping advance these goals. But recently, an interesting phenomenon has arisen in which individuals not engaged in typical commercial activities have been using the TM signifier in ways that don’t necessarily correspond to the symbol’s legal function. These so-called “extra-legal” uses of the TM symbol can offer insights …

An Empirical Study Of The Dmca's Anti-Circumvention Provisions, Clark Asay

Faculty Scholarship

The DMCA has been a flashpoint during most of its twenty-five-year existence. One of the most controversial parts of the DMCA is Section 1201. Among other things, Section 1201 prohibits third parties from circumventing certain controls to copyrighted content or trafficking in tools that enable circumvention of technological controls. However, despite its nearly quarter-of-a-century lifespan, we know very little about Section 1201 empirically. While certain aspects of the broader DMCA have received empirical assessments, Section 1201 has not. Our understanding of Section 1201 is largely based on anecdotal evidence, in the form of leading opinions from historically prominent copyright circuits. …

Front Matter

SMU Annual Texas Survey

No abstract provided.

Bankruptcy & Commercial Law, Sally Mcdonald Henry

SMU Annual Texas Survey

This Article analyzes and discusses cases—arising from the U.S. Court of Appeals for the Fifth Circuit, the Bankruptcy Courts in Texas, the Texas Supreme Court, and the Texas Courts of Appeals—that resolved some fascinating and important issues in the areas of bankruptcy and commercial law during this Survey period.

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

SMU Annual Texas Survey

No abstract provided.

Insurance Law, J. Price Collins, Janet Tolbert, Ashley Gilmore

SMU Annual Texas Survey

This Article describes and analyzes major developments in insurance law that occurred in Texas between December 1 and November 30 of 2023.

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

SMU Annual Texas Survey

No abstract provided.

Franchise Law, Deborah S. Coldwell, Kristina Pierre-Louis, Sam Mallick, Wilson Miller, Chris Hamborsky

SMU Annual Texas Survey

No abstract provided.

Partnership Law, Troy Christensen, Jeff Dorrill, Matthew Schindel, Madeline Ballard, James Barnett

SMU Annual Texas Survey

This Article summarizes and discusses meaningful joint venture cases decided by the Texas Courts of Appeals between December 1, 2022, and November 30, 2023. This Article focuses on fiduciary duty issues, the interrelationship between certain partnership and bankruptcy laws, fraud claims in the joint venture arena, the application of arbitration clauses in joint venture agreements, and the separate existence of related joint ventures, among other issues.

Wills & Trusts, Gerry W. Beyer

SMU Annual Texas Survey

This article discusses developments relating to the Texas law of intestacy, wills, estate administration, trusts, and other estate planning matters during the Survey period of December 1, 2022, through November 30, 2023. The reader is warned that not all newly enacted statutes or decided cases during the Survey period are presented, and not all aspects of each statute or case are analyzed. You must read and study each statute or case’s full text before relying on it or using it as precedent. The discussion of most cases includes a moral, that is, the important lesson to be learned from the …

Real Property, J. Richard White, Amanda Grainger

SMU Annual Texas Survey

No abstract provided.

Professional Liability, Shelby Taylor, R. Max Ward, Josh Sherman

SMU Annual Texas Survey

This Article describes and analyzes major developments in professional liability law that occurred in Texas between December 1, 2022, and November 30, 2023.

Oil, Gas, & Mineral Law, Austin W. Brister

SMU Annual Texas Survey

No abstract provided.

The Lost History Of Judicial Restraint, Derek A. Webb

Scholarly Articles

For over 125 years, jurists and scholars who have championed judicial restraint have looked back to James Bradley Thayer’s 1893 Harvard Law Review article, The Origin and Scope of the American Doctrine of Constitutional Law, as the seminal authority for the rule that courts should presume the constitutionality of a challenged law and only invalidate it if its unconstitutionality is “clear” and “beyond a reasonable doubt.” But Thayer presented those three rules (presumption of constitutionality, clear error rule, and reasonable doubt standard) as rooted in historical legal practice in America. And yet none of his twentieth or twenty-first century acolytes …