Recently, the Texas Supreme Court breathed new life into some ancient zombies—zombie precedents, that is!—which have long lurked in the shadows of the nation’s partnership formation caselaw. This Article tells the story of those undead cases—describing them, debunking them, and plotting their demise.

This zombie tale begins with the supposed black-letter law of partnership formation. In nearly every state, formation of a general partnership is governed by one of two uniform partnership acts. Under both acts, a business relationship ripens into a partnership whenever the statutory definition of partnership is satisfied. The parties’ intent to become “partners” (or not) is always, either explicitly or implicitly, one of the required elements of this definition. However, a storied line of cases holds—and the more recent uniform partnership act explicitly states—that the parties’ subjective intent to be partners (or not) is not dispositive as to formation. Therefore, law students learn as “settled law” that two parties cannot avoid formation of a partnership simply by signing a contract not to be partners. If the two parties’ business relationship satisfies the elements of partnership as a factual matter, the supposed “black-letter law” dictates that the two parties have formed an inadvertent partnership, even if they previously agreed not to become partners.

Thing is, the caselaw was never really settled. In fact, an even more ancient—but far less famous—line of cases holds that the parties’ intent not to form a partnership is dispositive as between themselves. Further, from time to time courts have mistakenly given effect to parties’ agreements not to be partners without even considering the applicable partnership statute. Both types of cases appear in some modern treatises but have largely escaped scholarly attention because they are directly at odds with the uniform statutes.

This Article finally brings the obscure, subjective-intent line of cases out of the shadows and gives them a close review. After briefly describing the ancient line of cases and the uniform partnership
acts, this Article concludes that the latter were enacted (in part) to eliminate the former. Yet, modern courts unwittingly continue to cite the old subjective intent cases, as well as the cases that simply ignore partnership law—occasionally allowing parties to contract around partnership as a matter of law. Hence, the subjective-intent cases are zombies—killed by the uniform acts, but still wandering the treatises, upending partnership law.

Two years ago, the Texas Supreme Court faced a case that pitted the two lines of cases—one famous, one forgotten—against each other. It all began with a massive, highly publicized jury’s verdict that two energy companies had formed a joint venture (a form of partnership) despite initially agreeing not to do so unless and until their boards approved (which never happened). Subsequently, an appellate court overturned the verdict and held that the parties contracted around partnership formation as a matter of law; the Texas Supreme Court later upheld the reversal. This erroneous decision could revitalize the undead subjective-intent cases, sending them on a nationwide rampage to destroy inadvertent partnership formation.

The only way to destroy a zombie is to obliterate its brain. In this case, the “brain” of the subjective-intent cases—i.e., what animates them—is the failure of legal research websites to recognize their death at the hands of the uniform partnership acts. Accordingly, the next court to address the issue of whether parties can contact around partnership should describe these cases as abrogated, thereby marking them with a red flag. Squarely repudiating the subjective-intent cases will effectively blow those ancient zombies to smithereens.

Joseph K. Leahy *

* Professor of Law, South Texas College of Law—Houston.

In a substantial minority of states, wealthy and powerful individuals can, without much consequence, bring defamation lawsuits against the press and concerned citizens to silence and intimidate them. These lawsuits, known as “strategic lawsuits against public participation” (“SLAPP”s), are brought not to compensate a wrongfully injured person, but rather to discourage the defendants from exercising their First Amendment rights. In other words, when well resourced individuals feel disrespected by public criticism, they sometimes sue the media or concerned citizens, forcing these speakers to defend themselves in exorbitantly expensive defamation actions. In states without anti-SLAPP statutes—statutes aimed at protecting speakers from these chilling lawsuits—these cases can take months, and sometimes years, to resolve. The result is that speakers—those targeted by the lawsuits and otherwise—will be less inclined to criticize the plaintiff in the future, lest they face a devastatingly burdensome and drawn-out (albeit not meritorious) defamation lawsuit.

Even in the thirty-two states that have passed anti-SLAPP statutes, the statutory regimes widely vary. For instance, anti-SLAPP statutes in some populous states like Florida and, until recently, New York are not particularly helpful to the media because they only apply in limited contexts, such as citizens being sued for their comments at public meetings. Other anti-SLAPP statutes, like Virginia’s, lack procedural mechanisms that would require a plaintiff whose lawsuit has been declared a SLAPP to pay the defendants’ legal fees. As a result of these and other differences in anti-SLAPP regimes, plaintiffs strategically forum shop when deciding where to bring their defamation lawsuits, choosing jurisdictions with less protections for defendants whenever possible. However, even where an action is brought in a jurisdiction that does provide strong anti-SLAPP protections, federal courts are split on whether anti-SLAPP statutes conflict with the Federal Rules of Civil Procedure. Consequently, it is currently unclear whether such statutes can be applied in federal cases at all.

Because anti-SLAPP statues are needed to ensure that the public can exercise their First Amendment rights and freely exchange information of public interest, it is vital to fill the gaps that the current statutory regimes have created. In exploring the current legislative landscape, this Article will consider methods for protecting citizens’ First Amendment rights to speak on issues of public interest, such as urging state and federal governments to pass broad anti-SLAPP legislation. In so doing, this Article will suggest specific tools and language that should be incorporated into a federal anti-SLAPP law. Indeed, to date, no federal anti-SLAPP statute has ever been enacted. This Article seeks to change that by outlining provisions for a potential federal anti-SLAPP statute and exploring the benefits and value that enacting strong anti-SLAPP legislation on both the federal and state levels could have on protecting First Amendment rights.

Nicole J. Ligon *

* Visiting Professor of Law at Campbell University Norman Adrian Wiggins School of Law.

On April 6, 2018, the Trump administration announced a “zero tolerance” policy for individuals who crossed the U.S. border illegally. As part of this policy, the administration prosecuted parents with minor children for unlawful entry; previous administrations generally placed families in civil removal proceedings. Since U.S. law does not allow children to be held in immigration detention facilities pending their parents’ prosecution, the new policy caused thousands of children to be separated from their parents. Hundreds of families have yet to be reunited.

Despite a consensus that the family separation policy was cruel and ineffective, there has been minimal focus on the attorneys who implemented it. One exception is Professor Bradley Wendel, who recently defended border prosecutors for following the zero-tolerance policy rather than pursuing their own conceptions of the public interest. Since immigration is not the only context in which prosecutors’ charging decisions may have the effect of separating families, the question of prosecutors’ ethical responsibilities in these situations continues to be of paramount importance.

This Article contends that prosecutors, as ministers of justice, should consider their charging decisions’ effects on children and families. Because of limited resources and opportunity costs, prosecutors cannot pursue every criminal misdemeanor and inevitably take the public interest into account in making charging decisions. The Trump administration’s “zero-tolerance” policy may have limited prosecutors’ discretion but did not eliminate it. Prevailing prosecutorial standards recognize prosecutors’ broad charging discretion but focus predominately on culpability in individual cases. Prosecutors should instead seek justice for the situation, which could include declining to prosecute nonviolent misdemeanors to keep families intact.

Milan Markovic *

* Professor of Law & Presidential Impact Fellow, Texas A&M University School of Law.

The earliest trade secret cases recognized that remembered information raised unique issues in trade secret misappropriation claims. However, courts struggled with exactly how to address remembered information, as opposed to information taken in tangible form. The modern trend, according to one case from the Washington Supreme Court, is to ignore the distinction and treat remembered information the same as information taken in tangible form for purposes of trade secret misappropriation claims. However, this case may have prematurely signaled the demise of remembered information’s relevance to a trade secret claim. Particularly during the pandemic era, where increased employee mobility is placing new pressure on existing trade secret law, the issue of remembered information is of increasing importance. This Article discusses the historical development of trade secret law with respect to remembered information and suggests the continued importance of the distinction between information taken in tangible form and that taken solely in memory.

Timothy E. Murphy *

* Assistant Professor at University of Idaho College of Law.

Many lawmakers and public university governing boards are looking to curb faculty tenure. Driven by both ideological and economic motives, recent efforts range from eliminating tenure systems altogether to interfering when schools seek to tenure individual, often controversial scholars. These actions raise serious questions about higher education law and policy and have important implications for the future of academic freedom. Indeed, if they gain further traction, current regulatory threats to tenure will jeopardize the ability of American universities to remain at the forefront of global research and intellectual progress.

This Article examines the growing anti-tenure sentiment among state officials and develops a framework for how members of academia should respond. In particular, this Article provides several novel legal strategies that public universities and their faculty can pursue to protect tenure from external interference. These strategies include replicating or defending tenure through alternative contractual means, as well as using privatization techniques to better preserve faculty autonomy. This Article also draws on collaborative governance theory to show how the quasi-legislative powers of private accreditors and similar groups can be applied to incentivize stakeholders on competing sides of the tenure debate to resolve their differences through cooperative decision-making.

Joseph W. Yockey *

* David H. Vernon Professor of Law, University of Iowa College of Law.

On January 6, 2021, the world looked on, stunned, as thousands of rioters stormed the U.S. Capitol on live television in support of then-President Donald Trump. In the days and weeks that followed, federal law enforcement scrambled to identify those involved in the attack, in what has become the largest criminal investigation in American history. Whereas even 20 years prior it would have been difficult to identify those involved, as of February 2023, more than 950 people have been identified and charged in relation to the January 6th Capitol attack. Many of these individuals were identified using a wide array of new technology, including automated license plate readers, complex facial recognition searches, and reverse location searches.

The use of reverse location searches dates to at least 2016. Reverse location searches provide law enforcement the ability to reverse-engineer the location of people for the purposes of an investigation. This is accomplished with location data collected by third-party companies from their users’ electronic devices. Many electronic devices, such as cellphones, are equipped with GPS, which determines a device’s location using signals from satellites. Additional information can be used to pinpoint the location of a device through Wi-Fi, mobile networks, and certain device sensors. Google, for example, states that in order to collect the location data, it uses “GPS and other sensor data from your device,” your “IP address,” “[a]ctivity on Google services, such as your searches and places you label like home or work,” and “[i]nformation about things near your device, such as Wi-Fi access points, cell towers, and Bluetooth-enabled devices.”

This Comment examines the two types of reverse location searches in detail, analyzing the constitutionality of each under these three questions: (1) is it a search under the Fourth Amendment? (2) can it meet the particularity and probable cause requirements? (3) does it fall into the category of general warrants prohibited by the Fourth Amendment? Ultimately, it argues that reverse location searches are constitutional, raising the question of whether existing Fourth Amendment doctrine is sufficient to guarantee the Amendment’s protections.

Matthew L. Brock *

*J.D. Candidate, University of Richmond School of Law.

Every other Western democracy now recognizes a right to counsel in at least some kinds of civil cases, typically those involving basic human rights. The World Justice Project’s 2021 Rule of Law Index ranked the United States 126th of 139 countries for “People Can Access and Afford Civil Justice.” Within its regional and income categories, the United States was dead last. The United Nations and other international treaty bodies have urged the United States to improve access to justice by providing civil legal aid. How did we fall behind, and what can we learn from the rest of the world?

This Comment considers how international human rights law might support a civil right to counsel in the United States. Part II discusses right-to-counsel principles in U.S. law and the current state of civil legal aid. Part III examines how international and foreign law, particularly in Europe, has conceptualized and implemented a civil right to counsel. Finally, Part IV explores and evaluates several strategies for drawing upon international human rights law to secure such a right in the United States.

Meredith Elliott Hollman *

*J.D. Candidate, University of Richmond School of Law.

Over the past few years, a turf war has been brewing between the Commodity Futures Trading Commission (“CFTC”) and the Securities and Exchange Commission (“SEC”) over which agency should regulate cryptocurrencies. Both agencies have pursued numerous enforcement actions over the cryptocurrencies they believe to be within their jurisdiction. This turf war has many moving components, but the focus always comes back to one question: which cryptocurrencies are commodities, and which cryptocurrencies are securities? The distinction is important because the CFTC has statutory authority to regulate commodities, whereas the SEC has statutory authority to regulate securities. This Comment rejects the pursuit of defining cryptocurrency and instead proposes a regulatory framework where the two agencies regulate jointly and where the firms can self-designate and register with either the CFTC or SEC.

Taylor Anne Moffett *

*J.D. Candidate, University of Richmond School of Law.