Texas A&M Law Review


Established in 2018, Arguendo serves as the online extension of ​Texas A&M Law Review print publication. Arguendo features intriguing content on all areas of law, and provides a platform to publish content within weeks of a legal development. 

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Arguendo features short, lightly footnoted pieces on timely and relevant legal issues. While the shorter length and light footnoting policy allows authors to publish responses expeditiously, our rigorous editorial process ensures we maintain the quality of scholarship expected of a print law review.

Arguendo articles, written by scholars, practitioners, and law students alike, feature
  • short expositions of new ideas,
  • analysis of emerging legal topics,
  • dialogues on ongoing legal debates,
  • analysis of upcoming or recently decided high-profile cases, and
  • short responses to already-published scholarship.
If you have questions about Arguendo, or wish to submit a piece to be considered for publication in Arguendo, please contact the Online Managing Editor or use the online submission form.

Recent Articles

7 Tex. A&M L. Rev. Arguendo 1 (2019)

Fifth Indifference: Clarifying the Fifth Circuit's Intent Standard for Damages Under Title II of the Americans with Disabilities Act 

Derek Warden

The Americans with Disabilities Act prohibits discrimination against people with disabilities. Title II of the ADA applies to public entities. That same Title allows plaintiffs to obtain damages upon a showing that the discrimination was intentional. There are generally two possible standards of intent: (1) deliberate indifference or (2) animus. While most Circuit Courts expressly adopted the deliberate indifference model, the Fifth Circuit has not. Indeed, the Fifth Circuit has not adopted any standard and this has led to confusion. The confusion is not helped, moreover, by the sheer lack of justification offered by a number of the Circuit Courts who have adopted either standard. This Essay seeks to clear that confusion. It offers reasons why deliberate indifference, and not the animus standard, should apply to ADA Title II claims. Further, it explains why no Fifth Circuit precedent should be construed as prohibiting the adoption of the deliberate indifference standard.

Full Article

6 Tex. A&M L. Rev. Arguendo 34 (2019)

Murphy v. NCAA: The Constitutionality of State-Authorized Sports Gambling

Shane Landers

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Thus, “Congress may not simply ‘commandee[r] the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.’” In Murphy v. NCAA, the United States Supreme Court held that a federal law that prevents States from legalizing sports gambling “violates the anticommandeering rule.” The Supreme Court’s decision in Murphy reemphasizes a fundamental principle of dual sovereignty—Congress is prohibited from “issu[ing] direct orders to the governments of the States.”

Full Article

6 Tex. A&M L. Rev. Arguendo 22 (2019)

Data Exclusivities in the Age of Big Data, Biologics, and Plurilaterals

Peter K. Yu

The past decade has seen many new developments impacting the intellectual property system. The introduction of big data analytics has transformed the fields of biotechnology and bioinformatics while ushering in major advances in drug development, clinical practices, and medical financing. The arrival of biologics and personalized medicines has also revolutionized the healthcare and pharmaceutical industries. In addition, the emergence of bilateral, regional, and plurilateral trade agreements have raised serious, and at times difficult, questions concerning the evolution of domestic and international intellectual property standards.

One topic linking all three developments together concerns the establishment of international standards to protect clinical trial data that have been submitted to regulatory authorities for the marketing approval of pharmaceutical products. During the negotiations for the Trans-Pacific Partnership (TPP), for example, the protection of clinical trial data submitted for the marketing approval of biologics was highly contentious. Although the United States’ withdrawal in January 2017 has since placed the TPP Agreement and its data exclusivity provisions for pharmaceuticals and biologics on life support, the debate on the protection of clinical trial data will continue and will emerge in future bilateral, regional, and plurilateral trade negotiations, including the renegotiations on the North American Free Trade Agreement (NAFTA).

Part I of this Article reviews the protection of clinical trial data under Article 39.3 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) of the World Trade Organization (WTO). Even though the provision covers both pharmaceutical and agricultural chemical products, this Article focuses only on the former. Part II examines the additional protection clinical trial data have received through TRIPS-plus bilateral, regional, and plurilateral trade agreements. Part III outlines five specific recommendations to help advance the debate on such protection in the age of big data, biologics, and plurilateral trade agreements.

Full Article

6 Tex. A&M L. Rev. Arguendo 1 (2019)

Whose Land Is It Anyway? Navigating Ghana's Complex Land System

Aimee Kline, Élan Moore, Elizabeth Ramey, Kevin Hernandez, Lauren Ehrhardt, Megan Reed, Morgan Parker, Samantha Henson, Taylor Winn, and Taylor Wood

This Article dives into Ghana’s complex land-registration system, which is influenced by both statutory and customary law. Section II discusses Ghana’s statutory land laws. Section III provides a brief overview of Ghana’s customary land laws. Section IV discusses several obstacles within Ghana’s land-administration system.

Full Article

6 Tex. A&M L. Rev. Arguendo 41 (2019)

Honoring Innocent Until Proven Guilty: Switching the Default Rule from Pretrial Detention to Pretrial Release in Texas's Bail System

Stephen Rispoli

Texas’s current prison population consists of far more pretrial detainees than convicted criminals. Despite United States and Texas constitutional protections, the default rule in many jurisdictions, including Texas, detains misdemeanor and non-violent felony defendants unless they can post a monetary bond or get a surety to post the bond for them (“bail bond”) to obtain their release. Most pretrial detainees remain detained due not to their alleged dangerousness, but rather because they simply cannot afford to post bail (or get someone to post it for them). As a result, many pretrial detainees find themselves choosing between hamstringing their financial future or remaining in detention until trial. If Americans are serious about “honoring the presumption of innocence,” we must reform the way that misdemeanor and non-violent felony defendants are treated while awaiting trial. Rather than treat them as guilty and keep them in jail unless they can pay for their release, the standard should be to release them unless there is a very good reason for not doing so. By changing the default option from pretrial detention to pretrial release, many Texas judges will be more pre-disposed to release misdemeanor and non-violent felony defendants on conditions other than the posting of monetary bail. This switch will result in fewer people being detained simply because they cannot afford to be released—which will prevent adverse economic consequences to already disadvantaged citizens. Proposed reform has been discussed for decades. Reforming the bail system in Texas is a current, critical need. This criminal justice issue undermines the public’s faith in our system of justice and detrimentally affects the economic and social status of countless citizens who will ultimately be found not guilty. Doing nothing weakens our overall rule-of-law system and ultimately erodes the foundation upon which our society is built.

Full Article

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