{"title":"Tribute to Professor Beth Thornburg","authors":"William V. Dorsaneo, III","doi":"10.25172/smulr.75.2.5","DOIUrl":"https://doi.org/10.25172/smulr.75.2.5","url":null,"abstract":"","PeriodicalId":80169,"journal":{"name":"SMU law review : a publication of Southern Methodist University School of Law","volume":"25 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77848201","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}
“Caligula posted the tax laws in such fine print and so high that his subjects could not read them . . . . That’s not a good idea, we can all agree. How can citizens comply with what they can’t see? And how can anyone assess the tax collector’s exercise of power in that setting?”
{"title":"Coding the Code: Catala and Computationally Accessible Tax Law","authors":"Sarah Lawsky","doi":"10.25172/smulr.75.3.4","DOIUrl":"https://doi.org/10.25172/smulr.75.3.4","url":null,"abstract":"“Caligula posted the tax laws in such fine print and so high that his subjects could not read them . . . . That’s not a good idea, we can all agree. How can citizens comply with what they can’t see? And how can anyone assess the tax collector’s exercise of power in that setting?”","PeriodicalId":80169,"journal":{"name":"SMU law review : a publication of Southern Methodist University School of Law","volume":"395 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75163448","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 Professor Beth Thornburg","authors":"M. Arbuckle","doi":"10.25172/smulr.75.2.4","DOIUrl":"https://doi.org/10.25172/smulr.75.2.4","url":null,"abstract":"","PeriodicalId":80169,"journal":{"name":"SMU law review : a publication of Southern Methodist University School of Law","volume":"60 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79904351","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 mounting prevalence of suicides in the United States has translated into a full-fledged, nationwide suicide crisis, impacting the lives of far too many. Even if an individual is fortunate enough never to have directly endured the tragedy of losing a loved one to suicide, they have certainly been exposed to this crisis through ever-frequent media reports of suicides. Given the widespread and detrimental nature of this crisis, it is imperative that prompt action is taken by individuals and institutions across a multitude of disciplines, the law notwithstanding. Indeed, the force of law itself implies that certain faculties possessed by courts can be uniquely conducive to the fundamental goal of suicide prevention. Specifically, courts hold the power to impose liability upon individuals for their actionable wrongdoing; when imposed, the threat of future liability is thereby realized, which presumably operates to deter future instances of similar misconduct. However, where the threat of liability is far-fetched, the law’s deterrence value is likewise diminished. As such, only a legitimate threat of liability will produce the necessary incentives for individuals to prevent suicides and suicide-inducing conduct. The law’s state-created danger doctrine is critical because it supplies a legal basis for imposing liability upon governmental actors for certain instances of suicide. This Comment thus seeks to resolve a circuit split concerning the doctrine’s applicability to suicide. It suggests the manner in which courts should treat state-created danger claims involving suicides in light of both the doctrine’s history and modern psychiatric understandings of suicide. Ultimately, this Comment argues that where the requisite elements of a state-created danger claim have been satisfied, courts must not decline to find liability simply because the harm that ensued from the state-created danger was that of suicide rather than some harm inflicted by a third party.
{"title":"The Law’s Role in Ending the Suicide Crisis: Liability for Suicide Under the State-Created Danger Doctrine","authors":"Brittany White","doi":"10.25172/smulr.75.4.6","DOIUrl":"https://doi.org/10.25172/smulr.75.4.6","url":null,"abstract":"The mounting prevalence of suicides in the United States has translated into a full-fledged, nationwide suicide crisis, impacting the lives of far too many. Even if an individual is fortunate enough never to have directly endured the tragedy of losing a loved one to suicide, they have certainly been exposed to this crisis through ever-frequent media reports of suicides. Given the widespread and detrimental nature of this crisis, it is imperative that prompt action is taken by individuals and institutions across a multitude of disciplines, the law notwithstanding. Indeed, the force of law itself implies that certain faculties possessed by courts can be uniquely conducive to the fundamental goal of suicide prevention. Specifically, courts hold the power to impose liability upon individuals for their actionable wrongdoing; when imposed, the threat of future liability is thereby realized, which presumably operates to deter future instances of similar misconduct. However, where the threat of liability is far-fetched, the law’s deterrence value is likewise diminished. As such, only a legitimate threat of liability will produce the necessary incentives for individuals to prevent suicides and suicide-inducing conduct. The law’s state-created danger doctrine is critical because it supplies a legal basis for imposing liability upon governmental actors for certain instances of suicide. This Comment thus seeks to resolve a circuit split concerning the doctrine’s applicability to suicide. It suggests the manner in which courts should treat state-created danger claims involving suicides in light of both the doctrine’s history and modern psychiatric understandings of suicide. Ultimately, this Comment argues that where the requisite elements of a state-created danger claim have been satisfied, courts must not decline to find liability simply because the harm that ensued from the state-created danger was that of suicide rather than some harm inflicted by a third party.","PeriodicalId":80169,"journal":{"name":"SMU law review : a publication of Southern Methodist University School of Law","volume":"115 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88081145","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 affirmative defense of duress was created to protect a person coerced into committing a violent physical crime. Alongside duress, battered woman syndrome (BWS) is a psychological theory created to explain why women choose to kill abusive partners rather than leave them. Although BWS is a well-known and supported legal theory, historically, courts have been reluctant to allow expert evidence regarding the syndrome into testimony to help explain a battered woman’s behavior. Battered women have been so subjected to abuse and violence that their psychological perception is altered. In cases where expert evidence has been admitted, it profoundly affected jurors’ perception of battered women. The admitted expert evidence allows the jury to see her actions as her only available choice to protect herself. Thus, all courts should move to permit the admission of expert evidence regarding BWS to allow these women a fair trial and the potential opportunity to avoid a life behind bars. This Comment seeks to understand the implications of BWS and the substantial impact expert testimony can have when attempting to prove a duress defense. It purports to familiarize the reader with BWS and duress generally before critically analyzing the psychological repercussions of BWS, which can be conveyed to a jury through the admission of expert evidence. This Comment looks to the current circuit split regarding the admissibility of such evidence and outlines each court’s reasoning. Ultimately, this Comment advocates for the admission of expert evidence and attempts to urge undecided jurisdictions on the matter using legal arguments, recent federal and state court decisions, statistical evidence stressing the widespread nature of the matter, and the societal effects, both recent and historical.
{"title":"Psychologically Bound: Why Expert Evidence Regarding Battered Woman Syndrome Should Be Admissible","authors":"Christa Bunce","doi":"10.25172/smulr.75.4.5","DOIUrl":"https://doi.org/10.25172/smulr.75.4.5","url":null,"abstract":"The affirmative defense of duress was created to protect a person coerced into committing a violent physical crime. Alongside duress, battered woman syndrome (BWS) is a psychological theory created to explain why women choose to kill abusive partners rather than leave them. Although BWS is a well-known and supported legal theory, historically, courts have been reluctant to allow expert evidence regarding the syndrome into testimony to help explain a battered woman’s behavior. Battered women have been so subjected to abuse and violence that their psychological perception is altered. In cases where expert evidence has been admitted, it profoundly affected jurors’ perception of battered women. The admitted expert evidence allows the jury to see her actions as her only available choice to protect herself. Thus, all courts should move to permit the admission of expert evidence regarding BWS to allow these women a fair trial and the potential opportunity to avoid a life behind bars. This Comment seeks to understand the implications of BWS and the substantial impact expert testimony can have when attempting to prove a duress defense. It purports to familiarize the reader with BWS and duress generally before critically analyzing the psychological repercussions of BWS, which can be conveyed to a jury through the admission of expert evidence. This Comment looks to the current circuit split regarding the admissibility of such evidence and outlines each court’s reasoning. Ultimately, this Comment advocates for the admission of expert evidence and attempts to urge undecided jurisdictions on the matter using legal arguments, recent federal and state court decisions, statistical evidence stressing the widespread nature of the matter, and the societal effects, both recent and historical.","PeriodicalId":80169,"journal":{"name":"SMU law review : a publication of Southern Methodist University School of Law","volume":"36 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89780385","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}
An often overlooked yet extremely pressing issue in the U.S. economy is the misclassification of workers as independent contractors when they are actually employees. Because of such misclassifications, workers are denied their rights to federal antidiscrimination protections and the ability to collectively bargain through unions. Courts across the country utilize a variety of legal tests to determine if a worker is an employee or an independent contractor. The three most important legal tests are the right to control test, the economic realities test, and the ABC test. Using men’s professional tennis as a case study, this Comment argues for the uniform adoption of the ABC test. As a pertinent example, tennis players are incorrectly classified as independent contractors under current legal frameworks. The ABC test provides the best answer to the independent contractor problem because it is the most straightforward, adaptable, and beneficial for both employers and workers.
{"title":"Working Toward Break Point: Professional Tennis and the Growing Problem with Employee and Independent Contractor Misclassifications","authors":"E. Priest","doi":"10.25172/smulr.75.4.8","DOIUrl":"https://doi.org/10.25172/smulr.75.4.8","url":null,"abstract":"An often overlooked yet extremely pressing issue in the U.S. economy is the misclassification of workers as independent contractors when they are actually employees. Because of such misclassifications, workers are denied their rights to federal antidiscrimination protections and the ability to collectively bargain through unions. Courts across the country utilize a variety of legal tests to determine if a worker is an employee or an independent contractor. The three most important legal tests are the right to control test, the economic realities test, and the ABC test. Using men’s professional tennis as a case study, this Comment argues for the uniform adoption of the ABC test. As a pertinent example, tennis players are incorrectly classified as independent contractors under current legal frameworks. The ABC test provides the best answer to the independent contractor problem because it is the most straightforward, adaptable, and beneficial for both employers and workers.","PeriodicalId":80169,"journal":{"name":"SMU law review : a publication of Southern Methodist University School of Law","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90180034","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 (AI) has helped determine vaccine recipients, prioritize emergency room admissions, and ascertain individual hires, sometimes doing so inequitably. As we emerge from the Pandemic, technological progress and efficiency demands continue to press all areas of the law, including intellectual property (IP) law, toward incorporating more AI into legal practice. This may be good when AI promotes economic and social justice in the IP system. However, AI may amplify inequity as biased developers create biased algorithms with biased inputs or rely on biased proxies. This Article argues that policymakers need to take a thoughtful and concerted approach to graft AI into IP law and practice if social justice principles of access, inclusion, and empowerment flow from their union. It explores what it looks like to obtain AI justice in the IP context and focuses on two areas where IP law impedes equitable AI-related outcomes. The first involves the civil rights concerns that stem from trade secrets blocking access and deflecting accountability in biased algorithms or data. The second concerns the patent and copyright doctrine biases perpetuating historical inequity in AI-augmented processes. The Article also ad- dresses how equity by design should look and provides a roadmap for implementing equity audits to mitigate bias. Finally, it briefly examines how AI would assist with adjudicating equitable IP law doctrines, which also tests the outer limits of what bounded AI processes can do.
{"title":"AI, Equity, and the IP Gap","authors":"Daryl Lim","doi":"10.25172/smulr.75.4.4","DOIUrl":"https://doi.org/10.25172/smulr.75.4.4","url":null,"abstract":"Artificial intelligence (AI) has helped determine vaccine recipients, prioritize emergency room admissions, and ascertain individual hires, sometimes doing so inequitably. As we emerge from the Pandemic, technological progress and efficiency demands continue to press all areas of the law, including intellectual property (IP) law, toward incorporating more AI into legal practice. This may be good when AI promotes economic and social justice in the IP system. However, AI may amplify inequity as biased developers create biased algorithms with biased inputs or rely on biased proxies. This Article argues that policymakers need to take a thoughtful and concerted approach to graft AI into IP law and practice if social justice principles of access, inclusion, and empowerment flow from their union. It explores what it looks like to obtain AI justice in the IP context and focuses on two areas where IP law impedes equitable AI-related outcomes. The first involves the civil rights concerns that stem from trade secrets blocking access and deflecting accountability in biased algorithms or data. The second concerns the patent and copyright doctrine biases perpetuating historical inequity in AI-augmented processes. The Article also ad- dresses how equity by design should look and provides a roadmap for implementing equity audits to mitigate bias. Finally, it briefly examines how AI would assist with adjudicating equitable IP law doctrines, which also tests the outer limits of what bounded AI processes can do.","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":"81541383","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":"A Tribute to Beth Thornburg","authors":"Mary Emma Karam","doi":"10.25172/smulr.75.2.6","DOIUrl":"https://doi.org/10.25172/smulr.75.2.6","url":null,"abstract":"","PeriodicalId":80169,"journal":{"name":"SMU law review : a publication of Southern Methodist University School of Law","volume":"143 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72848156","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 landmark decision in Bostock, which established that “sex” under Title VII includes gender identity and sexual orientation, now protects LGBTQ+ persons from discrimination in the workplace. However, this interpretation of “sex” was not subsequently applied wholesale to “sex” under Title IX, leaving many LGBTQ+ students—particularly transgender students—subject to the fate of where they were born and the shifting tides of the federal executive. Beginning with the Obama Administration, a history of conflicting guidance and opinion letters has dominated the discussion on whether transgender students are allowed to use the restroom that corresponds with their gender identity. In 2020, the Fourth Circuit in Grimm interpreted “sex” under Title IX as including gender identity and sexual orientation, thereby establishing the right of transgender students to use the restroom that corresponds with their gender identity. The same year, the Eleventh Circuit reached an identical conclusion. However, the Eleventh Circuit subsequently vacated this opinion and granted a rehearing, suggesting that it will likely reach the opposite conclusion on rehearing. The Supreme Court could soon find itself in a position to settle a circuit split between the Fourth and Eleventh Circuits and should grant certiorari to uphold the rights of transgender students, regardless of what circuit jurisdiction they may live in or who the president may be.
{"title":"May I Use The Restroom? The Supreme Court’s Likely Opportunity to Define “Sex” in Title IX and End the Transgender Bathroom Debate","authors":"Kaleb Degler","doi":"10.25172/smulr.75.4.7","DOIUrl":"https://doi.org/10.25172/smulr.75.4.7","url":null,"abstract":"The Supreme Court’s landmark decision in Bostock, which established that “sex” under Title VII includes gender identity and sexual orientation, now protects LGBTQ+ persons from discrimination in the workplace. However, this interpretation of “sex” was not subsequently applied wholesale to “sex” under Title IX, leaving many LGBTQ+ students—particularly transgender students—subject to the fate of where they were born and the shifting tides of the federal executive. Beginning with the Obama Administration, a history of conflicting guidance and opinion letters has dominated the discussion on whether transgender students are allowed to use the restroom that corresponds with their gender identity. In 2020, the Fourth Circuit in Grimm interpreted “sex” under Title IX as including gender identity and sexual orientation, thereby establishing the right of transgender students to use the restroom that corresponds with their gender identity. The same year, the Eleventh Circuit reached an identical conclusion. However, the Eleventh Circuit subsequently vacated this opinion and granted a rehearing, suggesting that it will likely reach the opposite conclusion on rehearing. The Supreme Court could soon find itself in a position to settle a circuit split between the Fourth and Eleventh Circuits and should grant certiorari to uphold the rights of transgender students, regardless of what circuit jurisdiction they may live in or who the president may be.","PeriodicalId":80169,"journal":{"name":"SMU law review : a publication of Southern Methodist University School of Law","volume":"22 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72657983","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 Professor Elizabeth Thornburg","authors":"Jennifer Collins","doi":"10.25172/smulr.75.2.3","DOIUrl":"https://doi.org/10.25172/smulr.75.2.3","url":null,"abstract":"","PeriodicalId":80169,"journal":{"name":"SMU law review : a publication of Southern Methodist University School of Law","volume":"71 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89382783","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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