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Articles 1 - 30 of 1185
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Administrative Law Judges And The Erosion Of The Administrative State: Why Jarkesy May Be The Straw That Breaks The Camel's Back, Nicholas D'Addio
Administrative Law Judges And The Erosion Of The Administrative State: Why Jarkesy May Be The Straw That Breaks The Camel's Back, Nicholas D'Addio
Catholic University Law Review
The Trump-era unitary executive movement sought to expand presidential
power and shrink the influence of the administrative state through deregulation.
This movement ripples into the present moment, as Trump’s overhaul of the
federal judiciary installed a comprehensive system to delegitimize
administrative agency action— a system that is certain to endure. The
independence and role of administrative law judges (ALJs) has proven a key
target of the movement. Most recently, in the 2022 case of Jarkesy v. Securities
and Exchange Commission, the Fifth Circuit held that the dual-tiered for-cause
removal protections of SEC ALJs violated the Take Care Clause of Article …
Personal Data And Vaccination Hesitancy: Covid-19’S Lessons For Public Health Federalism, Charles D. Curran
Personal Data And Vaccination Hesitancy: Covid-19’S Lessons For Public Health Federalism, Charles D. Curran
Catholic University Law Review
During the COVID-19 vaccination campaign, the federal government adopted a more centralized approach to the collection of public health data. Although the states previously had controlled the storage of vaccination information, the federal government’s Operation Warp Speed plan required the reporting of recipients’ personal information on the grounds that it was needed to monitor the safety of novel vaccines and ensure correct administration of their multi-dose regimens.
Over the course of the pandemic response, this more centralized federal approach to data collection added a new dimension to pre-existing vaccination hesitancy. Requirements that recipients furnish individual information deterred vaccination among undocumented …
The Antidote Of Free Speech: Censorship During The Pandemic, Christopher Keleher
The Antidote Of Free Speech: Censorship During The Pandemic, Christopher Keleher
Catholic University Law Review
Free speech in America stands at a precipice. The nation must decide if the First Amendment protects controversial, unconventional, and unpopular speech, or only that which is mainstream, fashionable, and government-approved. This debate is one of many legal battles brought to the fore during Covid-19. But the fallout of the free speech question will transcend Covid-19.
During the pandemic, the federal government took unprecedented steps to pressure private entities to push messages it approved and squelch those it did not. The Supreme Court will soon grapple with the issue of censorship during the pandemic. This article examines this litigation, along …
Tackling Vulnerabilities Through Corporate Duties, Jingchen Zhao
Tackling Vulnerabilities Through Corporate Duties, Jingchen Zhao
Catholic University Law Review
In this article, and drawing on the work of Fineman and others, we use a vulnerability lens as a device to emphasize the protection that could be offered to vulnerable parties in corporations through directors’ duties. By situating corporations in the vulnerability paradigm, we will discuss the limitations of formal equality and clarify the role played by corporate law. The increasingly blurred distinction between private law and public law will be discussed to rationalize the protection of the vulnerable through collective responsibility. Vulnerability theory mediates conflicts between calls for “regulatory state policies” and “individual responsibility” to supervise and monitor corporate …
Robots As Pirates, Henry H. Perritt Jr.
Robots As Pirates, Henry H. Perritt Jr.
Catholic University Law Review
Generative AI has created much excitement over its potential to create new works of authorship in the literary and graphical realms. Its underling machine-learning technology works by analyzing the relations among elements of preexisting material in enormous databases assembled from publicly available and licensed sources. Its algorithms “learn” to predict “what comes next” in different types of expression. A complete system thus can become glib in creating new factual summaries, essays, fictional stories and images.
A number of authors of the raw material used by Generative AI engines claim that the machine learning process infringes their copyrights. Careful evaluation of …
Defending Against Projects Of Faction: Reforming The Congressional Investigation Process, John Sullivan
Defending Against Projects Of Faction: Reforming The Congressional Investigation Process, John Sullivan
Catholic University Law Review
Throughout American history, the power to investigate has been one of key powers of the U.S. Congress. This power, shaped by the Congress itself and the courts, has evolved into a critical tool used to hold parties accountable and to promote effective legislation for the American people. Yet as much as it can be used to further the interests of all Americans, so too can it be used to further a party’s own political agenda. Today, the congressional investigation process has become overly-politicized, misused for fundraising purposes, and overseen by members of Congress who are not investigators by trade.
As …
The Immorality Of Originalism, Jack M. Beermann
The Immorality Of Originalism, Jack M. Beermann
Catholic University Law Review
The central claim of this essay is that in interpreting the U.S. Constitution, it is immoral to choose original intent over social welfare, broadly conceived. Once this argument is laid out and defended on its own terms, I support the central claim with a variety of arguments, including the defective process pursuant to which the Constitution was enacted, the deeply flawed substantive content of the Constitution, the incongruity of fidelity to the views of a generation of revolutionaries, the current virtual imperviousness of the Constitution to amendment, the failure of the Constitution to resolve fundamental questions concerning the allocation of …
Unreimbursed Medical Expense Tax Deductions In Light Of Per-And Polyfluoroalkyl Substances, Tyler Young
Unreimbursed Medical Expense Tax Deductions In Light Of Per-And Polyfluoroalkyl Substances, Tyler Young
Catholic University Law Review
Per– and Ployfluoroalkyl Substances (PFAS) have been used in a wide variety
of products due to their ability to reduce friction. However, studies have shown
that exposure to PFAS can cause harmful effects in humans. In fact, it has been
called a “national emergency” in testimony before Congress. As a result, there
have been efforts to limit exposure to the disease-causing substances through
abatement and avoidance. The Internal Revenue Code, through the
unreimbursed medical expense tax deduction of I.R.C. § 213, may offer one
policy solution for individuals seeking to participate in abatement activities.
This comment explores the development and …
Keeping Fair Chance Laws Fair: Implications For Employers And Employees Given The Expansion And Variety Of Fair Chance Laws In The United States, Caitlin T. Gaines
Keeping Fair Chance Laws Fair: Implications For Employers And Employees Given The Expansion And Variety Of Fair Chance Laws In The United States, Caitlin T. Gaines
Catholic University Law Review
Jurisdictions around the United States have adopted, and are considering adopting, fair chance laws, also known as “ban the box” laws, to improve access to employment opportunities for those with criminal histories. For years, individuals with criminal records – approximately one in four U.S. adults – have been disadvantaged when employers heavily rely upon criminal background checks during the hiring process. Now, with the proliferation of fair chance laws which require employers to avoid considering criminal history in hiring decisions, public and private employers are faced with implementation concerns as they adapt their hiring practices to ensure compliance with the …
America’S Two Pastimes: Baseball And Constitutional Law; Review Of Adrian Vermeule, Common Good Constitutionalism, Paul J. Larkin
America’S Two Pastimes: Baseball And Constitutional Law; Review Of Adrian Vermeule, Common Good Constitutionalism, Paul J. Larkin
Catholic University Law Review
For the last 50 years, the two prevailing constitutional interpretation methodologies have been Originalism and Living Constitutionalism. The former treats the Constitution almost like a contract and demands that interpreters focus on the ordinary contemporary understanding its terms would have received when they became law. The latter treats the Constitution as a charter for the structure of a new government that would survive and mature as needed to protect both the nation and its people as new threats to government and civil liberties arise. Professor Adrian Vermeule’s book Common Good Constitutionalism offers a new approach to constitutional interpretation, one that …
Judicial Selection That Fails The Separation Of Powers, Stephen Ware
Judicial Selection That Fails The Separation Of Powers, Stephen Ware
Catholic University Law Review
Executive power should be constrained by checks and balances. The United States’ long and strong tradition of concerns about executive power, and its complementary tradition of Madisonian checks and balances on and to the executive, include the selection of supreme court justices. Neither the U.S. Constitution nor the constitution of any state places solely in the executive the power to appoint a justice to begin a new term on the (federal or state) supreme court. However, several states fail to constrain gubernatorial power in selecting justices to finish a term already started by another justice and these interim appointments are …
Don’T Cite Funk, Oskar Liivak
Don’T Cite Funk, Oskar Liivak
Catholic University Law Review
For patent eligibility the Supreme Court continues to rely on its 1947 opinion in Funk Brothers Seed v. Kalo Inoculant. It is one of the most cited cases for patent eligibility and the Supreme Court relies heavily upon it. It forms one of the foundations of the current eligibility test in Mayo v. Prometheus. This article argues that this reliance is in error. Funk is just not appropriate for modern patent eligibility. Interestingly this view is not new. Ever since its appearance in Flook, the Supreme Court’s use of Funk has been dogged by criticism that faults the Court for …
Black Lives Matter And The Push For Colonial-Era Cultural Heritage Restitution, Kathryn Speckart
Black Lives Matter And The Push For Colonial-Era Cultural Heritage Restitution, Kathryn Speckart
Catholic University Law Review
The influence of the Black Lives Matter movement extends into U.S. museums in the form of calls for “decolonization” of collections comprised of art and artifacts from Africa and other colonized areas. As a result, the accompanying legal and ethical questions surrounding these artifacts now figure prominently in the museum industry. This Comment analyzes why the current U.S. cultural heritage law framework does not accommodate colonial-era African artifacts. This is due to few of these artifacts being subject to legal claims under current laws, African artifacts not having protection as a special classification, and the lack of enforcement mechanisms in …
Sacred Spheres: Religious Autonomy As An International Human Right, Diana V. Thomson, Kayla A. Toney
Sacred Spheres: Religious Autonomy As An International Human Right, Diana V. Thomson, Kayla A. Toney
Catholic University Law Review
How should courts resolve thorny human rights disputes that arise within religious groups? According to an emerging international consensus, they shouldn’t. When a case involves sensitive internal decisions by a religious organization, such as choosing who is qualified to teach the faith, courts are increasingly taking a hands-off approach. This global consensus has formed across international treaties, tribunals, and domestic courts in European and American nations. Every major human rights instrument and many international and domestic courts recognize that religious freedom must extend to religious communities, especially houses of worship and schools where believers gather to practice their faith and …
Conflicts Of Interest At An Organization’S Highest Authority: How The District Of Columbia’S Rules Of Professional Conduct Can Fail To Protect Private Organizations, Christopher Deubert
Conflicts Of Interest At An Organization’S Highest Authority: How The District Of Columbia’S Rules Of Professional Conduct Can Fail To Protect Private Organizations, Christopher Deubert
Catholic University Law Review
This Article examines how the District of Columbia’s incomplete incorporation of the Model Rules of Professional Conduct into its own Rules of Professional Conduct has created a scenario in which wrongdoing inside a private organization can flourish. In 2002, following the Enron scandal, the American Bar Association (ABA) revisited and revised its Model Rules of Professional Conduct. The ABA nevertheless took a conservative route, rejecting rules long proposed by experts which would have permitted attorneys aware of corporate crimes, fraud, and other wrongdoing to report their concerns to individuals or entities outside the organization’s reporting structure. Additional scandals unfolded contemporaneous …
Toothless Trade? Implications Of The Federal Circuit’S Clearcorrect Decision For The Enforceability Of Intellectual Property Protections In Digital Trade Under Usmca, Alissa Chase
Catholic University Law Review
Digital trade is growing faster than trade in goods and services and comprises a key area for innovation and intellectual property concerns. The United States-Mexico-Canada Agreement (“USMCA”) acknowledged this development by including chapters devoted to both digital trade and intellectual property. In 2015, the Federal Circuit held that the International Trade Commission (“ITC”) does not have jurisdiction over unfairly traded digital goods. Without exclusion orders issued by the ITC, the United States lacks a powerful tool to enforce the USMCA provisions protecting intellectual property in unfairly traded digital goods. This comment explores the implications of the Federal Circuit’s 2015 ClearCorrect …
Climate Discrimination, Duane Rudolph
Climate Discrimination, Duane Rudolph
Catholic University Law Review
This Article focuses on the coming legal plight of workers in the United States, who will likely face discrimination as they search for work outside their home states. The Article takes for granted that climate change will have forced those workers across state and international boundaries, a reality dramatically witnessed in the United States during the Dust Bowl of the 1930s. During that environmental emergency (and the devastation it wrought), workers were forced across boundaries only to be violently discriminated against upon arrival in their new domiciles. Such discrimination is likely to recur, and it will threaten the livelihoods of …
The Inconsistencies Of Consent, Chunlin Leonhard
The Inconsistencies Of Consent, Chunlin Leonhard
Catholic University Law Review
U.S. legal scholars have devoted a lot of attention to the role that consent has played in laws and judicial consent jurisprudence. This essay contributes to the discussion on consent by examining judicial approaches to determining the existence of consent in three selected areas--contracts, tort claims involving medical treatment, and criminal cases involving admissibility of confessions, from the late nineteenth century until the present. This article examines how courts have approached the basic factual question of finding consent and how judicial approaches in those areas have evolved over time. The review shows that the late 19th century saw courts adopting …
Artificial Intelligence And Corporate Decisions: Fantasy, Reality Or Destiny, Jingchen Zhao
Artificial Intelligence And Corporate Decisions: Fantasy, Reality Or Destiny, Jingchen Zhao
Catholic University Law Review
Fueled by the ever-growing significance of big data and advances in AI, tasks in relation to decision-making in contemporary societies have been increasingly delegated to AI at different levels. While there is massive investment all over the world related to one side of AI, namely engineering, it is also important to create rules and competence related to humanistic AI and its effects on people and societies. This article aims to examine AI’s role in the boardroom and associated legal challenges, by exploring the interplay between AI and corporate law and governance. We observe that the delegation of board tasks to …
The Trouble With Farmouts: The Problem Of The Innocent, Nonperforming Farmee, Benjamin Idzik
The Trouble With Farmouts: The Problem Of The Innocent, Nonperforming Farmee, Benjamin Idzik
Catholic University Law Review
The oil market is a volatile universe. The price of the commodity has a profound impact both on the national and global economies and on the lives of everyday consumers. Consider the high prices of 2022 compared with the record lows seen in 2020, the price of oil affects almost everything. The United States is one of the top oil producing nations in the world. The size and importance of the industry has led to a somewhat unique area of the legal practice known as oil and gas law. Among its many tenants is an instrument known as a farmout …
Subsidiarity & Vulnerability Theory: A Case Study For Deepening The Relationship Between Catholic Social Teaching And The Responsive State, Nathaniel Romano
Subsidiarity & Vulnerability Theory: A Case Study For Deepening The Relationship Between Catholic Social Teaching And The Responsive State, Nathaniel Romano
Catholic University Law Review
Religion and religious voices have long had a role to play in shaping community norms and values and public policy; this role continues in contemporary America. Yet, legitimate questions arise about the extent of this role and its place in a pluralist and democratic state. These questions are particularly pronounced when religion is perceived as partisan, a situation that seems apparent in contemporary America. Hoping to combat this perception, this paper explores the relationship between Catholic Social Teaching and Vulnerability Theory, aiming to show how religious values can inform legal theory across the political spectrum. This paper surveys both Catholic …
New Light On The History Of Free Exercise Exemptions: The Debates In Two Eighteenth-Century State Legislatures, Stanton D. Krauss
New Light On The History Of Free Exercise Exemptions: The Debates In Two Eighteenth-Century State Legislatures, Stanton D. Krauss
Catholic University Law Review
As Justice Gorsuch pointed out in his concurring opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 138 S. Ct. 1719, 1734 (2018), there is an ongoing debate about whether the First Amendment ever requires the recognition of religion-based exemptions to neutral and generally applicable laws. The leading proponent of such exemptions has argued that the original understanding of the Free Exercise Clause supports his claim, and that the existence of such exemptions in preconstitutional American statutes – which he believed to have been granted because legislators thought them mandated by “the free exercise principle” – is one factor …
Federal Courts: Article I, Ii, Iii, And Iv Adjudication, Laura K. Donohue, Jeremy Mccabe
Federal Courts: Article I, Ii, Iii, And Iv Adjudication, Laura K. Donohue, Jeremy Mccabe
Catholic University Law Review
The distinction among the several types of federal courts in the United States has gone almost unremarked in the academic literature. Instead, attention focuses on Article III “constitutional” courts with occasional discussion of how they differ from what are referred to as “non-constitutional” or “legislative” courts. At best, these labels are misleading: all federal courts have a constitutional locus. Most (but not all) are brought into being via legislation. The binary approach ignores the full range of adjudicatory bodies, which find root in different constitutional provisions: Article III, Section 1, Article I, Section 8; Article IV, Section 3; Article II, …
Religious Freedom Vs. Compelled Vaccination: A Case-Study Of The 2018-2019 Measles Pandemic Or The Law As A Public Health Response, Barbara Pfeffer Billauer Esq.
Religious Freedom Vs. Compelled Vaccination: A Case-Study Of The 2018-2019 Measles Pandemic Or The Law As A Public Health Response, Barbara Pfeffer Billauer Esq.
Catholic University Law Review
Following the recent decision in Roman Catholic Diocese v. Cuomo,[1] clear guidance regarding the state’s powers to act during a pandemic is wanting. I look here to the 2018–2019 global measles epidemic, with a focus on the New York and Israeli experiences, for that guidance. Measles rates increased dramatically during the 2018–2019 season, both in the United States and globally. This phenomenon reflects a general decline in worldwide vaccination and an increase in vaccine resistance stoked by anti-vax groups. In the United States, the epidemic targeted ultra-Orthodox Jewish communities, as it did in Israel. This Article evaluates the …
The Economics Of Information And The Meaning Of Speech, Charles W. Collier
The Economics Of Information And The Meaning Of Speech, Charles W. Collier
Catholic University Law Review
In common usage the communication of information is not sharply distinguished from the use of language or speech to make factual or propositional statements. So it should come as no surprise that one of the main legal justifications for protecting speech--that it underwrites a “marketplace of ideas” and thereby contributes to the search for truth--has strong parallels in the economic theory of information. “Indeed,” as Kenneth Arrow writes, “the market system as a whole has frequently been considered as an organization for the allocation of resources; the typical argument for its superiority to authoritative central allocation has been the greater …
Administrative Apparition: Resurrecting The Modern Administrative State’S Legitimacy Crisis With Agency Law Analysis, Tabitha Kempf
Administrative Apparition: Resurrecting The Modern Administrative State’S Legitimacy Crisis With Agency Law Analysis, Tabitha Kempf
Catholic University Law Review
There is an enduring discord among academic and political pundits over the state of modern American government, with much focus on the ever-expanding host of federal agencies and their increasing regulatory, investigative, enforcement, and adjudicatory authority. The growing conglomerate of federal agencies, often unfavorably regarded as the “administrative state,” has invited decades of debate over the validity and proper scope of this current mode of government. Advocates for and against the administrative state are numerous, with most making traditional constitutional arguments to justify or delegitimize the current establishment. Others make philosophical, moral, or practical arguments in support or opposition. Though …
Supply And Demand In The Illegal Employment Of Undocumented Workers, Brian Owsley
Supply And Demand In The Illegal Employment Of Undocumented Workers, Brian Owsley
Catholic University Law Review
The United States is in a quandary regarding immigration. There are over eleven million undocumented aliens residing in the country with about eight million of them working in the American economy.
The federal government has criminalized the illegal entry and the illegal reentry into the United States. Moreover, it has enacted a statute making it illegal to smuggle or harbor aliens. Federal prosecutors across the country have aggressively prosecuted people in violation of these statutes. At the same time, Congress criminalized the illegal employment of undocumented workers, but federal prosecutors rarely ever charge employers with violating this statute.
The economic …
Heirs Of An Administration: Unlawful Executive Actions, Jerome Perez
Heirs Of An Administration: Unlawful Executive Actions, Jerome Perez
Catholic University Law Review
The Supreme Court of the United States in DHS v. Regents on June 18, 2020, decided to stall the Trump administration from rescinding the Deferred Action for Childhood Arrivals (DACA) policy that the Obama administration created contrary to the Administrative Procedures Act (APA)––even though in 2016 the Supreme Court affirmed a preliminary injunction on the Deferred Action for Parents of Americans (DAPA) policy, which mirrors DACA. This blunder offhandedly sacrifices the Supreme Court’s reputation as nonpartisan by enlisting itself as the future arbiter of administrative issues with self-evident resolutions and deciding contrary to those resolutions to endorse a political agenda. …
Trafficking Without Borders: Why It Is Time For The Law To Properly Address Cybersex Trafficking In The Livestreaming Context, Jesse Raines
Trafficking Without Borders: Why It Is Time For The Law To Properly Address Cybersex Trafficking In The Livestreaming Context, Jesse Raines
Catholic University Law Review
This Comment assesses the impact, and growing prevalence, of cybersex trafficking: A relatively novel form of human trafficking conducted via livestream over the internet. In particular, this Comment focuses on the differences between the statutes that criminalize sex trafficking and child pornography and how these statutes operate both domestically and internationally. This Comment argues that the Trafficking Victims Protection Act of 2000 should be amended in order for the modern crime of cybersex trafficking to fall under the statute’s ambit and to aid in prosecution efforts.
Will Due Process Be Returned To Academic Suspension?: An Analysis Of Academia's Rejection Of The Title Ix Final Rule, Andrew F. Emerson
Will Due Process Be Returned To Academic Suspension?: An Analysis Of Academia's Rejection Of The Title Ix Final Rule, Andrew F. Emerson
Catholic University Law Review
In 2011, the Department of Education ("DOE") under the Obama administration issued its Dear College Letter ("DCL") ordering publicly funded educational institutions to undertake aggressive actions to deter what was deemed an epidemic of sexual violence on college campuses. DOE subsequently aggressively enforced the directives of the DCL with scores of costly investigations of college disciplinary systems and threatened withdrawal of federal funding for institutions that failed to respond to sexual harassment claims aggressively. Hundreds of lawsuits followed in the wake of the DCL's issuance. Specifically, the flood of litigation was initiated by males contending they were briskly expelled, suspended, …