Law Commons^™

Achieving A (Copy)Right To Repair For The Eu’S Green Economy, Anthony D. Rosborough, Leanne Wiseman, Taina Pihlajarinne

Articles, Book Chapters, & Popular Press

• The Right to Repair is a global movement in favour of rebalancing the relationship between manufacturers and end users of products and devices. As part of the European Union (EU) Green Deal and the Circular Economy Action Plan, EU legislators have made the Right to Repair a key policy aim. To date, however, the EU’s Right to Repair policy focus has been predominantly consumer law–oriented.

• This article sheds light on another key dimension of the Right to Repair—IP (and principally copyright law). It canvasses the ways in which copyright can inhibit repair activities, including curtailing access to repair information and …

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Repair As Research: How Copyright Impedes Learning About Devices, Anthony D. Rosborough, Aaron Perzanowski

Articles, Book Chapters, & Popular Press

Widespread computerization and ubiquitous smart devices have enabled software-based copyright governance to reach into new domains. Beyond their instrumental utility, these devices are also containers of vast amounts of information in the form of software and technical know-how. Through copyright and anti-circumvention rules, however, this information can be cordoned off and confined to exclusive distribution channels. This can have a significant impact on research. While copyright law traditionally conceives research as the use of expressive works within institutional settings, this paper proposes a broader conceptualization that includes device research, including informal inquiries and DIY activities. Whether for the purposes of …

Unreasonable Risk: The Failure To Ban Asbestos And The Future Of Toxic Substances Regulation, Rachel Rothschild

Articles

Every day, Americans are exposed to hundreds of chemicals in the air we breathe, the water we drink, and the products we use. The vast majority of these chemicals have never been tested far safety. Many have been shown to cause serious health harms, ranging.from cancer to autoimmune illness to IQ loss. They also have disproportionate effects on some of the most vulnerable populations in our society, such as children, minorities, and industrial workers.

The law that is supposed to protect Americans from dangerous chemical exposures-the Toxic Substances Control Act ("TSCA")-was long considered a dead letter after the Environmental Protection …

Tempering Arbitrary Power: A Moral Theory Of The Rule Of Law, Brian Z. Tamanaha

Constitutional Commentary, Vol. 37 and later (2023–present)

No abstract provided.

The Paradoxes Of A Unified Judicial Philosophy: An Empirical Study Of The New Supreme Court: 2020-2022, Victoria Nourse

Constitutional Commentary, Vol. 37 and later (2023–present)

No abstract provided.

Constitutionalism's Wrong Turn: Legal Rather Than Political Supremacy, Brian Christopher Jones

Constitutional Commentary, Vol. 37 and later (2023–present)

No abstract provided.

Melnick Misses Milliken, Myron Orfield

Constitutional Commentary, Vol. 37 and later (2023–present)

No abstract provided.

It Doesn't Matter What "Interpretation" Is, Francisco J. Urbina

Constitutional Commentary, Vol. 37 and later (2023–present)

No abstract provided.

To Save Democracy From Juristocracy: J.B. Thayer And Congressional Power After The Civil War, Samuel Moyn, Rephael G. Stern

Constitutional Commentary, Vol. 37 and later (2023–present)

As many Americans once again worry that their democracy is hostage to judicial power, this Article is an archival reconstruction of how famed Harvard law professor James Bradley Thayer set out on a mission to stave off the syndrome before it stuck—though he failed in the end. The Article shows how Thayer (1831–1902) arrived at his epoch-making theory of judicial deference to safeguard Congress’s power after the democratic revolutions of the Civil War and Reconstruction. Indeed, he hoped to see America transformed in the direction of British legislative supremacy, in which Parliament—and not the courts—reigned supreme.Scandalized by growing ventures to …

Professor John S. Lowe: A Master Teacher Who Never Doubted The Confidence Of His Convictions Even When He Was Wrong!, Owen L. Anderson

SMU Law Review

No abstract provided.

A Tribute For Professor Lowe, James W. Coleman

SMU Law Review

No abstract provided.

A Giant In The Field: Tribute To John S. Lowe, Monika U. Ehrman

SMU Law Review

No abstract provided.

Ode To John Lowe, Norman Nadorff

SMU Law Review

No abstract provided.

Fracture: Abortion Law And Politics After Dobbs, Rachel Rebouché, Mary Ziegler

SMU Law Review

Before Dobbs v. Jackson Women’s Health Organization—the case that overturned Roe v. Wade—almost everyone assumed that polarization would continue to define the abortion debate: once states could ban abortion before viability, half the country would criminalize it and half the country would not. The assumption has been that states would prohibit or permit abortion in ways that correspond to political beliefs. This Article demonstrates the limitations of that narrative both as a matter of history and in the current political moment. The future of abortion law and politics is one of fracture. Particularly for the anti-abortion movement, once-foundational priorities will …

The Promise Of Abortion Pills: Evidence On The Safety And Effectiveness Of Self-Managed Medication Abortion And Opportunities To Expand Access, Dana M. Johnson

SMU Law Review

Since the Dobbs v. Jackson Whole Women’s Health Organization ruling, medication abortion pills have received an enormous amount of attention. The two medication abortion pill regimens, mifepristone used with misoprostol, or misoprostol used by itself, have been the subject of extensive public health research. Less discussed in the legal scholarship are the differences between the two regimens and their uses for self-managed medication abortion. In the United States, when people refer to medication abortion pills, they are often referencing mifepristone used with misoprostol. But in other parts of the world, when people refer to medication abortion pills, they often mean …

Front Matter

SMU Law Review

No abstract provided.

Innovation Funding And The Valley Of Death, Lital Helman

SMU Law Review

Innovation is a public good. As with other public goods, it is expected to be underproduced if only private incentives are present. Therefore, the law strives to encourage innovation via an array of stimulus mechanisms. The law offers three main mechanisms: intellectual property (IP), cash transfers—mainly prizes and grants—and tax incentives. Vast literature analyzes and compares these innovation stimuli in search of the optimal mix to boost innovation. Yet a key problem is largely overlooked: together, the existing stimuli do not cover the lion’s share of the innovation lifecycle. At the beginning of the innovation process, companies can win grants …

Front Matter

SMU Law Review

No abstract provided.

The Future Of Substantive Due Process: What Are The Stakes?, Erwin Chemerinsky

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, …

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.

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”? …

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 …