{"title":"A Tribute to Professor John S. Lowe","authors":"Eric C. Camp","doi":"10.25172/smulr.76.1.3","DOIUrl":"https://doi.org/10.25172/smulr.76.1.3","url":null,"abstract":"","PeriodicalId":80169,"journal":{"name":"SMU law review : a publication of Southern Methodist University School of Law","volume":"22 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88510236","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Only nine months after the Supreme Court eliminated the federal constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization, fourteen states had banned abortion entirely, and experts estimate the ultimate number of states imposing complete or near-complete restrictions on abortion care will likely rise to twenty-four. Millions of people with the capacity for pregnancy now (or will soon) live in places where getting pregnant means there is no choice other than to carry the pregnancy to term and give birth. One underappreciated, though critically important, impact of Dobbs is the extent to which newly enacted abortion restrictions will increase both the number of people with high-risk pregnancies and, relatedly, the number of people who are coerced into medical treatment during labor and delivery. Such mistreatment in the form of coerced interventions will compound the harm of forced pregnancy after Dobbs with negative consequences for the physical and emotional well-being of birthing people and their babies.
{"title":"Pregnancy Risk and Coerced Interventions after Dobbs","authors":"Elizabeth Kukura","doi":"10.25172/smulr.76.1.10","DOIUrl":"https://doi.org/10.25172/smulr.76.1.10","url":null,"abstract":"Only nine months after the Supreme Court eliminated the federal constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization, fourteen states had banned abortion entirely, and experts estimate the ultimate number of states imposing complete or near-complete restrictions on abortion care will likely rise to twenty-four. Millions of people with the capacity for pregnancy now (or will soon) live in places where getting pregnant means there is no choice other than to carry the pregnancy to term and give birth. One underappreciated, though critically important, impact of Dobbs is the extent to which newly enacted abortion restrictions will increase both the number of people with high-risk pregnancies and, relatedly, the number of people who are coerced into medical treatment during labor and delivery. Such mistreatment in the form of coerced interventions will compound the harm of forced pregnancy after Dobbs with negative consequences for the physical and emotional well-being of birthing people and their babies.","PeriodicalId":80169,"journal":{"name":"SMU law review : a publication of Southern Methodist University School of Law","volume":"113 ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72425165","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Supreme Court’s momentous decision in Dobbs v. Jackson Women’s Health Organization to overturn fifty years of precedent on the constitutional right to abortion represents a sea of change, not only in constitutional law, but also in the public health landscape. Although state laws on abortion are still evolving after Dobbs, the decision almost immediately wreaked havoc on the delivery of medical care for both patients seeking abortion care and those not actively seeking to terminate a pregnancy. This Article also argues that focusing the public’s attention on the deleterious consequences of abortion bans for health care beyond wanted abortion care could help fend off further restrictions on abortion. Post-Dobbs, abortion policy is largely in the hands of voters, as state legislation and ballot initiatives now dictate the fate of abortion rights. Exposing Dobbs’s ripple effects on forms of health care that are less stigmatized than wanted abortion care could help educate the public on the links between abortion and a wide array of health care issues. Informing the public about the wide-ranging health care consequences of overturning Roe could help reframe abortion bans as government mandates that interfere with the physician–patient relationship and harm women’s health. Reframing abortion as a core health care concern for the public—as opposed to a debate about a constitutional right to privacy—is a potentially powerful strategy for resisting anti-abortion legislation post-Dobbs.
{"title":"The Ripple Effects of Dobbs on Health Care Beyond Wanted Abortion","authors":"Maya Manian","doi":"10.25172/smulr.76.1.9","DOIUrl":"https://doi.org/10.25172/smulr.76.1.9","url":null,"abstract":"The Supreme Court’s momentous decision in Dobbs v. Jackson Women’s Health Organization to overturn fifty years of precedent on the constitutional right to abortion represents a sea of change, not only in constitutional law, but also in the public health landscape. Although state laws on abortion are still evolving after Dobbs, the decision almost immediately wreaked havoc on the delivery of medical care for both patients seeking abortion care and those not actively seeking to terminate a pregnancy. This Article also argues that focusing the public’s attention on the deleterious consequences of abortion bans for health care beyond wanted abortion care could help fend off further restrictions on abortion. Post-Dobbs, abortion policy is largely in the hands of voters, as state legislation and ballot initiatives now dictate the fate of abortion rights. Exposing Dobbs’s ripple effects on forms of health care that are less stigmatized than wanted abortion care could help educate the public on the links between abortion and a wide array of health care issues. Informing the public about the wide-ranging health care consequences of overturning Roe could help reframe abortion bans as government mandates that interfere with the physician–patient relationship and harm women’s health. Reframing abortion as a core health care concern for the public—as opposed to a debate about a constitutional right to privacy—is a potentially powerful strategy for resisting anti-abortion legislation post-Dobbs.","PeriodicalId":80169,"journal":{"name":"SMU law review : a publication of Southern Methodist University School of Law","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79880822","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Tribute to John Lowe on His Retirement","authors":"David R. Pierce","doi":"10.25172/smulr.76.1.7","DOIUrl":"https://doi.org/10.25172/smulr.76.1.7","url":null,"abstract":"","PeriodicalId":80169,"journal":{"name":"SMU law review : a publication of Southern Methodist University School of Law","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83120163","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Multi-parentage has arrived. In recent years, a growing number of courts and legislatures have recognized that a child may have more than two legal parents. A number of significant societal, medical, and legal developments have contributed to the trend toward multi-parentage recognition. The traditional family structure of a married different-sex couple and their biological children currently represents only a minority of U.S. families. Stepparents, non-marital partners of legal parents, and extended family members often play a significant role in children’s lives, and it has become increasingly common for same-sex couples to welcome children into their families. In addition, advancements in assisted reproductive technology have made it possible for a greater number of parties to play a role in a child’s conception. At the same time, the law has expanded both the categories of individuals who are eligible to establish parentage and the mechanisms through which parentage can be established. While the trend in favor of multi-parentage recognition is clear, the boundaries of multi-parentage remain largely unsettled. It is imperative that in drafting their multi-parentage laws, states carefully consider how to address a number of important questions. These questions include, for example, whether each of the child’s existing legal parents must consent to the establishment of multi-parentage, what (if any) cap should be set on the number of individuals who can establish legal parentage, and how to avoid imposing a hetero- and bionormative family structure on LGBTQ+ families. After providing a detailed analysis of the complex issues involved in each of these questions, the Article sets forth a number of proposals regarding how states should address these critical questions within their multi-parentage laws.
{"title":"The Boundaries of Multi-Parentage","authors":"J. Feinberg","doi":"10.25172/smulr.75.2.10","DOIUrl":"https://doi.org/10.25172/smulr.75.2.10","url":null,"abstract":"Multi-parentage has arrived. In recent years, a growing number of courts and legislatures have recognized that a child may have more than two legal parents. A number of significant societal, medical, and legal developments have contributed to the trend toward multi-parentage recognition. The traditional family structure of a married different-sex couple and their biological children currently represents only a minority of U.S. families. Stepparents, non-marital partners of legal parents, and extended family members often play a significant role in children’s lives, and it has become increasingly common for same-sex couples to welcome children into their families. In addition, advancements in assisted reproductive technology have made it possible for a greater number of parties to play a role in a child’s conception. At the same time, the law has expanded both the categories of individuals who are eligible to establish parentage and the mechanisms through which parentage can be established. While the trend in favor of multi-parentage recognition is clear, the boundaries of multi-parentage remain largely unsettled. It is imperative that in drafting their multi-parentage laws, states carefully consider how to address a number of important questions. These questions include, for example, whether each of the child’s existing legal parents must consent to the establishment of multi-parentage, what (if any) cap should be set on the number of individuals who can establish legal parentage, and how to avoid imposing a hetero- and bionormative family structure on LGBTQ+ families. After providing a detailed analysis of the complex issues involved in each of these questions, the Article sets forth a number of proposals regarding how states should address these critical questions within their multi-parentage laws.","PeriodicalId":80169,"journal":{"name":"SMU law review : a publication of Southern Methodist University School of Law","volume":"117 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79965730","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Tribute to Elizabeth G. Thornburg","authors":"Thomas M. Melsheimer","doi":"10.25172/smulr.75.2.7","DOIUrl":"https://doi.org/10.25172/smulr.75.2.7","url":null,"abstract":"","PeriodicalId":80169,"journal":{"name":"SMU law review : a publication of Southern Methodist University School of Law","volume":"24 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82847184","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Career-driven women have consistently been forced to choose between their careers and creating a family. However, with the use of reproductive technology, this is no longer necessary. In recent years, fertile women have been looking to gestational surrogacy as a pregnancy alternative. These women are opting to use surrogates not be- cause they cannot bear a child but because being pregnant is not feasible for their careers. These surrogacies have been termed “social surrogacies.” However, surrogacy laws throughout the United States are diverse and complicated, and many do not allow for the enforcement of social surrogacy contracts. These states, particularly Texas, require that the intended mother be unable to bear a pregnancy without risk to herself or her fetus in order to have a legally enforceable gestational agreement. This Comment discusses the various surrogacy laws throughout the United States and analyzes the trend toward surrogacy acceptance. Specifically, this Comment argues that these surrogacy laws are unconstitutional and do not further any public policy goals by implementing a medical need requirement for intended parents. Thus, this Comment argues that Texas legislators should revise Texas’s surrogacy statutes and eliminate the medical need requirement, which in turn would allow enforcement of gestational surrogacy agreements for social surrogacies.
{"title":"Boss Mom: Why Texas Should Revise Its Legislation to Allow Gestational Surrogacy Contract Enforcement for Social Surrogacies","authors":"Krista Thompson","doi":"10.25172/smulr.75.4.9","DOIUrl":"https://doi.org/10.25172/smulr.75.4.9","url":null,"abstract":"Career-driven women have consistently been forced to choose between their careers and creating a family. However, with the use of reproductive technology, this is no longer necessary. In recent years, fertile women have been looking to gestational surrogacy as a pregnancy alternative. These women are opting to use surrogates not be- cause they cannot bear a child but because being pregnant is not feasible for their careers. These surrogacies have been termed “social surrogacies.” However, surrogacy laws throughout the United States are diverse and complicated, and many do not allow for the enforcement of social surrogacy contracts. These states, particularly Texas, require that the intended mother be unable to bear a pregnancy without risk to herself or her fetus in order to have a legally enforceable gestational agreement. This Comment discusses the various surrogacy laws throughout the United States and analyzes the trend toward surrogacy acceptance. Specifically, this Comment argues that these surrogacy laws are unconstitutional and do not further any public policy goals by implementing a medical need requirement for intended parents. Thus, this Comment argues that Texas legislators should revise Texas’s surrogacy statutes and eliminate the medical need requirement, which in turn would allow enforcement of gestational surrogacy agreements for social surrogacies.","PeriodicalId":80169,"journal":{"name":"SMU law review : a publication of Southern Methodist University School of Law","volume":"3 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90049882","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Artificial Intelligence’s (AI) global race for comparative advantage has the world spinning, while leaving people of color and the poor rushing to reinvent AI imagination in less racist, destructive ways. In repurposing AI technology, we can look to close the national racial gaps in academic achievement, healthcare, housing, income, and fairness in the criminal justice system to conceive what AI reparations can fairly look like. AI can create a fantasy world, realizing goods we previously thought impossible. However, if AI does not close these national gaps, it no longer has foreseeable or practical social utility value compared to its foreseeable and actual grave social harm. The hypothetical promises of AI’s beneficial use as an equality machine without the requisite action and commitment to address the inequality it already causes now is fantastic propaganda masquerading as merit for a Silicon Valley that has yet to diversify its own ranks or undo the harm it is already causing. Care must be taken that fanciful imagining yields to practical realities that, in many cases, AI no longer has foreseeable practical social utility when compared to the harm it poses to democracy, privacy, equality, personhood and global warming. Until we can accept as a nation that the Sherman Antitrust Act of 1890 and the Clayton Antitrust Act of 1914 are not up to the task for breaking up tech companies; until we can acknowledge DOJ and FTC regulators are constrained from using their power because of a framework of permissibility implicit in the “consumer welfare standard” of antitrust law; until a conservative judiciary inclined to defer to that paradigm ceases its enabling of big tech, then workers, students, and all natural persons will continue to be harmed by big tech’s anticompetitive and inhumane activity. Accordingly, AI should be vigorously subject to anti-trust monopolistic protections and corporate, contractual, and tort liability explored herein, such as strict liability or a new AI prima facie tort that can pierce the corporate and technological veil of algorithmic proprietary secrecy in the interest of justice. And when appropriate, AI implementation should be phased out for a later time when we have better command and control of how to eliminate its harmful impacts that will only exacerbate existing inequities. Fourth Amendment jurisprudence of a totalitarian tenor—greatly helped by Terry v. Ohio—has opened the door to expansive police power through AI’s air superiority and proliferation of surveillance in communities of color. This development is further exacerbated by AI companies’ protectionist actions. AI rests in a protectionist ecology including, inter alia, the notion of black boxes, deep neural network learning, Section 230 of the Communications Decency Act, and partnerships with law enforcement that provide cover under the auspices of police immunity. These developments should discourage a “safe harbor” protecting tech companies from liabil
{"title":"Combatting AI’s Protectionism & Totalitarian-Coded Hypnosis: The Case for AI Reparations & Antitrust Remedies in the Ecology of Collective Self-Determination","authors":"Maurice R. Dyson","doi":"10.25172/smulr.75.3.7","DOIUrl":"https://doi.org/10.25172/smulr.75.3.7","url":null,"abstract":"Artificial Intelligence’s (AI) global race for comparative advantage has the world spinning, while leaving people of color and the poor rushing to reinvent AI imagination in less racist, destructive ways. In repurposing AI technology, we can look to close the national racial gaps in academic achievement, healthcare, housing, income, and fairness in the criminal justice system to conceive what AI reparations can fairly look like. AI can create a fantasy world, realizing goods we previously thought impossible. However, if AI does not close these national gaps, it no longer has foreseeable or practical social utility value compared to its foreseeable and actual grave social harm. The hypothetical promises of AI’s beneficial use as an equality machine without the requisite action and commitment to address the inequality it already causes now is fantastic propaganda masquerading as merit for a Silicon Valley that has yet to diversify its own ranks or undo the harm it is already causing. Care must be taken that fanciful imagining yields to practical realities that, in many cases, AI no longer has foreseeable practical social utility when compared to the harm it poses to democracy, privacy, equality, personhood and global warming. Until we can accept as a nation that the Sherman Antitrust Act of 1890 and the Clayton Antitrust Act of 1914 are not up to the task for breaking up tech companies; until we can acknowledge DOJ and FTC regulators are constrained from using their power because of a framework of permissibility implicit in the “consumer welfare standard” of antitrust law; until a conservative judiciary inclined to defer to that paradigm ceases its enabling of big tech, then workers, students, and all natural persons will continue to be harmed by big tech’s anticompetitive and inhumane activity. Accordingly, AI should be vigorously subject to anti-trust monopolistic protections and corporate, contractual, and tort liability explored herein, such as strict liability or a new AI prima facie tort that can pierce the corporate and technological veil of algorithmic proprietary secrecy in the interest of justice. And when appropriate, AI implementation should be phased out for a later time when we have better command and control of how to eliminate its harmful impacts that will only exacerbate existing inequities. Fourth Amendment jurisprudence of a totalitarian tenor—greatly helped by Terry v. Ohio—has opened the door to expansive police power through AI’s air superiority and proliferation of surveillance in communities of color. This development is further exacerbated by AI companies’ protectionist actions. AI rests in a protectionist ecology including, inter alia, the notion of black boxes, deep neural network learning, Section 230 of the Communications Decency Act, and partnerships with law enforcement that provide cover under the auspices of police immunity. These developments should discourage a “safe harbor” protecting tech companies from liabil","PeriodicalId":80169,"journal":{"name":"SMU law review : a publication of Southern Methodist University School of Law","volume":"220 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80366431","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Whole Truth: A Tribute to Professor Beth Thornburg","authors":"Julie Patterson Forrester Rogers","doi":"10.25172/smulr.75.2.8","DOIUrl":"https://doi.org/10.25172/smulr.75.2.8","url":null,"abstract":"","PeriodicalId":80169,"journal":{"name":"SMU law review : a publication of Southern Methodist University School of Law","volume":"55 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86890900","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Speak to enough lawyers (especially litigators) about their experiences grappling with binding appellate case law in their jurisdictions, and a significant number of them will complain about statements in appellate case law that patently contradict prior precedent, incorrectly articulate legal standards, or otherwise mangle the doctrine in an area. The image of courts as deliberative doctrine-producing machines ignores the reality that certain statements in judicial opinions might not have been carefully, deliberately constructed. Often, the result is harmless. But in some instances, doubt about the deliberateness of dubious doctrinal statements in judicial opinions can become an unavoidable problem for litigants and judges in future cases. Conventional lawyering tools—distinguishing cases factually or characterizing statements as dicta—are ill-suited to address language in judicial opinions that sets out generalizable doctrine (rather than fact-bound conclusions about a particular case) that is central to the court’s analysis and yet difficult or impossible to square with logic or with preexisting statements of the same doctrine. The uncomfortable truth is that judges with enormous dockets can make drafting mistakes in articulating doctrine—not merely judicial “error” in the sense of issuing a decision that would be reversed—and can even do so in crucial portions of their opinions. It is, of course, usually impossible to know for sure whether some or all of those seeming misstatements were secretly deliberate. To be sure, it is an appellate court’s prerogative to state the law in the manner of its choosing. But it is also eminently reasonable to presume, absent evidence to the contrary, that judges usually do not intend to create doctrinal contradictions within their jurisdictions without explanation. This Article explores the circumstances under which the best explanation for an apparent misstatement of doctrine is simply that it was uttered indeliberately as a result of insufficiently careful drafting. This Article then addresses whether indeliberate doctrinal misstatements in appellate precedent should enjoy the stare decisis effect that appellate decisions typically receive. A wide range of considerations—normative, pragmatic, and ethical—are relevant to that question. Top of mind among those considerations is recent criticism of stare decisis, including from members of the Supreme Court, based purely on disagreement with the conclusions the precedent reached. Next, in lieu of focusing on my own view of how best to balance the competing considerations, I explore empirically whether American lawyers as a whole have developed norms in this domain. Conventional wisdom might be that, absent the ability to distinguish a case or characterize a statement as dicta, the statements of appellate courts are strictly binding within their jurisdictions—and, at a minimum, that lawyers must bring all relevant binding appellate court doctrine to the atten
{"title":"The Flubs that Bind: Stare Decisis and the Problem of Indeliberate Doctrinal Misstatements in Appellate Opinions","authors":"Richard Luedeman","doi":"10.25172/smulr.75.4.2","DOIUrl":"https://doi.org/10.25172/smulr.75.4.2","url":null,"abstract":"Speak to enough lawyers (especially litigators) about their experiences grappling with binding appellate case law in their jurisdictions, and a significant number of them will complain about statements in appellate case law that patently contradict prior precedent, incorrectly articulate legal standards, or otherwise mangle the doctrine in an area. The image of courts as deliberative doctrine-producing machines ignores the reality that certain statements in judicial opinions might not have been carefully, deliberately constructed. Often, the result is harmless. But in some instances, doubt about the deliberateness of dubious doctrinal statements in judicial opinions can become an unavoidable problem for litigants and judges in future cases. Conventional lawyering tools—distinguishing cases factually or characterizing statements as dicta—are ill-suited to address language in judicial opinions that sets out generalizable doctrine (rather than fact-bound conclusions about a particular case) that is central to the court’s analysis and yet difficult or impossible to square with logic or with preexisting statements of the same doctrine. The uncomfortable truth is that judges with enormous dockets can make drafting mistakes in articulating doctrine—not merely judicial “error” in the sense of issuing a decision that would be reversed—and can even do so in crucial portions of their opinions. It is, of course, usually impossible to know for sure whether some or all of those seeming misstatements were secretly deliberate. To be sure, it is an appellate court’s prerogative to state the law in the manner of its choosing. But it is also eminently reasonable to presume, absent evidence to the contrary, that judges usually do not intend to create doctrinal contradictions within their jurisdictions without explanation. This Article explores the circumstances under which the best explanation for an apparent misstatement of doctrine is simply that it was uttered indeliberately as a result of insufficiently careful drafting. This Article then addresses whether indeliberate doctrinal misstatements in appellate precedent should enjoy the stare decisis effect that appellate decisions typically receive. A wide range of considerations—normative, pragmatic, and ethical—are relevant to that question. Top of mind among those considerations is recent criticism of stare decisis, including from members of the Supreme Court, based purely on disagreement with the conclusions the precedent reached. Next, in lieu of focusing on my own view of how best to balance the competing considerations, I explore empirically whether American lawyers as a whole have developed norms in this domain. Conventional wisdom might be that, absent the ability to distinguish a case or characterize a statement as dicta, the statements of appellate courts are strictly binding within their jurisdictions—and, at a minimum, that lawyers must bring all relevant binding appellate court doctrine to the atten","PeriodicalId":80169,"journal":{"name":"SMU law review : a publication of Southern Methodist University School of Law","volume":"87 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80917774","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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