Digital Commons Network^™

The Global Practice Of Systematic Enforced Disappearances Of Children In International Law: Strategies For Preventing Future Occurrences And Solving Past Cases, Jeremy J. Sarkin, Elisenda Calvet Martinez

Catholic University Law Review

The aim of this article is to first investigate and understand the widespread and systematic practice of enforced disappearances against children around the world, with a key purpose being to show that it is a regular occurrence. The article reviews the systematic disappearances of children in their historical context, beginning from the Second World War. A variety of country examples –some historical and some contemporary –are discussed to indicate the widespread nature of the practice. The variety of cases is used to understand why states participate in such practices and why children specifically are targeted as victims of enforced disappearances. …

Forming A More Perfect Honor System: Why The Trend Of Over-Legalizing Academic Honor Codes Must Be Reversed, Christopher M. Hartley

Catholic University Law Review

Legal processes dominate many honor systems at schools and universities. The negative impacts of this legal saturation include time-consuming, overly burdensome, and seldom understood honor systems as well as a shift of student focus from compliance with honor codes to a fixation on exoneration, given the increased opportunity for fighting and defeating honor allegations using legal recourses. This article is a clarion call for higher education immediate action: schools must scrutinize their honor systems to ensure they are legally efficient, not legally saturated. Authors of books and law journal articles have meticulously reviewed the academic honor system history and legal …

Compelled Unionism In The Private Sector After Janus: Why Unions Should Not Profit From Dissenting Employees, Giovanna Bonafede

Catholic University Law Review

This Note examines the impact of the 2018 landmark labor law case Janus v. AFSCME. Janus held it unconstitutional under the First Amendment to require public sector employees to pay fees to a union to which they are not a member. The Supreme Court based their decision on the idea that compelling public employees to subsidize union speech to which they disagreed violated their free speech rights. The author argues that the Court’s holding in Janus should be extended to protect the free speech rights of private sector employees through a finding of state action in the private unionized …

In The Name Of Diversity: Why Mandatory Diversity Statements Violate The First Amendment And Reduce Intellectual Diversity In Academia, Daniel M. Ortner

Catholic University Law Review

In the 1950s and 1960s in many parts of the country, a professor could be fired or never hired if he refused to denounce communism or declare loyalty to the United States Constitution. The University of California system took the lead in enforcing these loyalty oaths. These loyalty oaths were challenged all the way up to the United States Supreme Court and were soundly rejected, establishing the centrality of academic freedom and open inquiry on the university campus. So why are loyalty oaths making their resurgence in the form of mandatory diversity statements? Universities have begun requiring faculty members to …

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Catholic University Law Review

No abstract provided.

"Prep"Aring For A Challenge To Government-Owned Patents, Caleb Holland

Catholic University Law Review

The United States Government owns one of the largest patent estates in the world, but it rarely brings suit for patent infringement. To understand why that may be, this paper looks critically at the Government as a patent holder. Specifically, the paper reviews the fundamentals of American patents and explores the intricacies unique to the Government as an entity that both grants and holds patent rights. The paper examines the historical progression of how the United States Government positions itself with regard to its patents, tracing this evolution from Constitutional origins to more recent statutory refinements. Finally, the paper looks …

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Catholic University Law Review

No abstract provided.

Take Note: Teaching Law Students To Be Responsible Stewards Of Technology, Kristen E. Murray

Catholic University Law Review

The modern lawyer cannot practice without some deployment of technology; practical and ethical obligations have made technological proficiency part of what it means to be practice-ready. These obligations complicate the question of what constitutes best practices in law school.

Today’s law schools are filled with students who are digital natives who don’t necessarily leverage technology in maximally efficient ways, and faculty who span multiple generations, with varying amounts of skepticism about modern technology. Students are expected to use technology to read, prepare for class, take notes, and study for and take final exams. Professors might use technology to teach or …

The Essentially-At-Home Requirement For General Jurisdiction: Some Embarrassing Cases, David Crump

Catholic University Law Review

In Daimler AG v. Baumann, the Supreme Court held that general jurisdiction does not exist unless the defendant is “essentially at home” in the forum. It offered two examples of places fitting this description but gave little further guidance or justification. A metaphor, such as essentially at home, is a bad way to express a legal standards, because the essence of a metaphor is that it substitutes one reality for another, creating a deliberate confusion. The Court also equated general jurisdiction with what it called all-purpose jurisdiction, which is wrong because it is easy to pose cases in which general …

Whose Highest And Best? Including Economic Development And Individual Landownership In The Highest And Best Use Standard, Brigid Sawyer

Catholic University Law Review

Real property is a finite resource. As a result, two theories of land use most frequently in tension are economic development and individual land ownership. In tracing key places in American history where these two theories conflict, it is seen that economic development is often prioritized over individual land ownership. This Comment analyzes the connections between the Founding Era philosophy on property law, Native American land takings, and eminent domain takings and proposes a new definition of the highest and best use valuation standard, one that accounts for both economic development and individual land ownership. This new standard allows both …

Child Support And Joint Physical Custody, Raymond C. O'Brien

Catholic University Law Review

Child custody has evolved to the point where, at a minimum, states provide a mediated process by which parents may formulate parenting plans with court-appointed assistance. At a maximum state legislatures and courts increasingly consider joint physical custody awards. While joint physical custody safeguards the fundamental rights of parents, it nonetheless prompts practical concerns in awarding child support. Today, child support begins with state statutory guidelines, but the guidelines often fail to adequately address the economic consequences of two complete residences, one supported by a parent with fewer economic resources, and the fact that oftentimes the child drifts from one …

Defining Who Is An Employee After A.B.5: Trading Uniformity And Simplicity For Expanded Coverage, Edward A. Zelinsky

Catholic University Law Review

A.B.5 made a significant but limited expansion of the coverage of California labor law but at a notable cost. Even as A.B.5 broadened the reach of the Golden State’s labor protections, A.B.5 also made the definition of “employee” more complex and less uniform. Those seeking federal or state legislation like A.B.5 confront the same trade-off under which greater coverage is achieved at the expense of more complexity and less uniformity in the definition of who is an employee. The same political forces and policy considerations which molded A.B.5 in California will have similar effects in other states and in the …

Whose Choice?: The Future Of Construction (And Maybe All) Labor Law, Michael J. Hayes

Catholic University Law Review

The current National Labor Relations Board ("Board') since 2018 has indicated an interest in changing the law on employee representation by unions in the construction industry, culminating in a final rule issued on April 1, 2020. As the article discusses, this proposal is likely to have effects in many industries other than construction, because many other industries in the U.S. are becoming more like the construction industry has long been. The Board’s rule has changed what's required for a construction union to remain the representative of a construction employer's employees, which the Board justified as serving "employee choice" about union …

Second-Class Rights And Second-Class Americans: Applying Carolene Products Footnote Four And The Court’S Enforcement Of Nationally Accepted Norms Against Local Outlier Jurisdictions In Second Amendment Enforcement Litigations, Mark W. Smith

Catholic University Law Review

In the years since deciding District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), the Supreme Court has largely abandoned the role of protecting American gun owners despite the text, history, and tradition of the Second Amendment’s right to keep and bear arms. The Supreme Court has failed to use the jurisprudential tools at its disposal to ensure that the fundamental right to arms is protected as robustly as other enumerated constitutional rights. This failure is an acute one. And it is unjustifiable across a wide variety of jurisprudential methodologies, from originalism to the non-originalist approaches …

All For Nothing?: Executive Authority And Congressional Evasion On Arms Sales, Margaret M. Murphy

Catholic University Law Review

On August 17, 2018, CNN reported that Lockheed Martin manufactured a bomb that killed dozens of Yemeni schoolchildren in Northern Yemen. Saudi Arabia purchased the bomb in an arms deal authorized under the Arms Export Control Act, the statute in which Congress delegates to the President authority to control the import and export of arms. Under the Act, the President must comply with reporting and waiting periods allowing time for Congress to oppose a sale by enacting a joint resolution. However, the Act allows the President to sell arms in an emergency without notice or waiting periods. President Trump invoked …

The Attorney-Client Privilege And Former Employees, Douglas R. Richmond

Catholic University Law Review

Attorney-client relationships are infused with confidentiality, and the attorney-client privilege is critical to the protection of sensitive and important communications between clients and their lawyers. Organizational clients, like individuals, are entitled to assert the attorney-client privilege concerning communications that fall within its scope.

In the organizational context, a common problem is determining who among the entity’s employees speaks on its behalf, such that communications between the entity’s lawyers and those employees may be protected against discovery by the organization’s adversaries and other third parties. And, of course, as organizations experience the inevitable turnover in their workforces, another issue surfaces: when, …

The Future Of Antitrust: New Challenges To The Consumer Welfare Paradigm And Legislative Proposals, John B. Nalbandian, Makan Delrahim, Gene Kimmelman, Maureen Ohlhausen, Rainer Wessely

Catholic University Law Review

On November 14, 2019, the Federalist Society's Corporations, Securities, & Antitrust Practice Group hosted a panel for the 2019 National Lawyers Convention at the Mayflower Hotel in Washington, DC. The panel discussed "The Future of Antitrust: New Challenges to the Consumer Welfare Paradigm and Legislative Proposals”.

Why, Or Why Not, Be An Originalist?, Dean Reuter, Thomas Hardiman, Amy Coney Barrett, Michael C. Dorf, Saikrishna B. Prakash, Richard H. Pildes

Catholic University Law Review

On November 15, 2019, the Federalist Society hosted the second showcase panel of the 2019 National Lawyers Convention at the Mayflower Hotel in Washington, DC. The topic of the panel was “Why, or Why Not, Be an Originalist?” There are a variety of arguments for following originalism today, such as justifications rooted in language, positivism, sovereignty, and consequences. This panel would look at many normative positions for and against originalism.

Contested Places, Utility Pole Spaces: A Competition And Safety Framework For Analyzing Utility Pole Association Rules, Roles, And Risks, Catherine J.K. Sandoval

Catholic University Law Review

As climate change augurs longer wildfire seasons, safe, reliable, and competitive energy and communications markets depend on sound infrastructure and well-calibrated regulation. The humble wooden utility pole, first deployed in America in 1844 to extend telegraph service, forms the twenty-first century’s technological scaffold. Utility poles are increasingly contested places where competition, safety, and reliability meet. Yet, regulators and academics have largely overlooked the risks posed by century-old private utility pole associations in California, composed of private and public utility pole owners and some entities who attach facilities to utility poles. No academic articles have examined the rules, roles, and risks …

United States Supreme Court Ip Cases, 1810–2019: Measuring & Mapping The Citation Networks, Joseph Scott Miller

Catholic University Law Review

Intellectual property law in the United States, though shaped by key statutes, has long been a common-law field to a great degree. Many decades of decisional law flesh out the meaning of broad-textured, sparely worded statutes. Given the key roles of patent law and copyright law, both federal, the Supreme Court of the United States is i.p. law’s leading apex court. What are the major topical currents in the Supreme Court’s i.p. cases, both now and over the course of the Court’s work? This study uses network-analysis tools to measure and map the entirety of the Court’s i.p. jurisprudence. It …

Clarifying The Probable Cause Standard In The Internet Age For Crimes Involving Child Pornography, Justin Kenyon

Catholic University Law Review

Since the rise of the Internet Age in the early 1990s the distribution of child pornography has increased at a staggering rate. In response Congress has repeatedly enacted legislation with the goal of eliminating the child pornography industry however, to date, a uniform probable cause standard to find evidence of these crimes remains elusive. This article explores the various approaches used to establish a sufficient basis of probable cause to search for evidence of child pornography. Within the last decade a clear divide has formed around the question of whether a prior conviction of child molestation can contribute to a …

Cruel And Unusual: Closing The Door On Juvenile De Facto Life Sentences, Thomas Garrity

Catholic University Law Review

There currently exists a split amongst the Federal Circuit Courts that stands ripe for review. The Supreme Court laid down clear precedent in its landmark decisions of Roper v. Simmons, Graham v. Florida, and Miller v. Alabama that capital punishment and life without parole are cruel and unusual as applied to juvenile non-homicidal offenders categorically and as applied to juvenile homicidal offenders without consideration of youth as a mitigating factor. There, however, was a door left open by these cases that allowed for judges to side-step the Court’s mandate. Using excessively long term-of-years sentences—longer than the most hopeful of estimates …

Where We’Re Going, We Don’T Need Drivers: Autonomous Vehicles And Ai-Chaperone Liability, Peter Y. Kim

Catholic University Law Review

The future of mainstream autonomous vehicles is approaching in the rearview mirror. Yet, the current legal regime for tort liability leaves an open question on how tortious Artificial Intelligence (AI) devices and systems that are capable of machine learning will be held accountable. To understand the potential answer, one may simply go back in time and see how this question would be answered under traditional torts. This Comment tests whether the incident involving an autonomous vehicle hitting a pedestrian is covered under the traditional torts, argues that they are incapable of solving this novel problem, and ultimately proposes a new …

Missing The Role Of Property In The Regulation Of Insider Trading, Kevin R. Douglas

Catholic University Law Review

For decades, legal scholars have evaluated the law and practice of insider trading through a property lens. Some have debated whether a property rationale is useful for explaining past cases or might make a useful framework for deciding tough cases in the future. Others have explored which market actors should be allocated property rights in inside information in order to increase the efficiency or liquidity of U.S. securities markets. Yet scholars seem to have missed the fact that officials have consistently relied on the violation of some party’s property rights to justify imposing liability for insider trading—including in classical theory …

Practical Truth: The Value Of Apparent Honesty In Supreme Court Opinions, Timothy C. Macdonnell

Catholic University Law Review

The focus of this Essay is on the importance that apparent honesty has on the persuasive force of Supreme Court opinions. Legal scholars and Supreme Court Justices have observed the connection between the Court’s legitimacy and the persuasive force of its opinions. Because the Court’s opinions are both an exercise of the Court’s power and the justification for that power, the Justices’ opinions must be persuasive.

The study of rhetoric has long recognized three methods of persuading an audience of the correctness of a particular view. Those methods are appeals to logic, credibility, and emotion. Of theses three methods, I …

Meaning, Biology And Identity: The Rights Of Children, Anika Smith

Catholic University Law Review

Sperm and egg donation in the United States is only loosely regulated, and the current regime privileges the anonymity of the adult donor over the child’s right to identity. The majority of people conceived through anonymous donation do not support the practice but find their rights abrogated by contracts made by their intentional and biological parents. Donor reliance on the anonymity guaranteed by those contracts is shifting as at-home genetic testing limits their expectation of privacy, with more biological ties being discovered by children conceived through gamete donation. This Comment explores the child’s right to identity in family law cases, …

The More Things Change, The More They Stay The Same: The United States, Trade Sanctions, And International Blocking Acts, Meaghan Jennison

Catholic University Law Review

When the United States unilaterally withdrew from the Joint Comprehensive Plan of Action (“JCPOA,” colloquially known as the Iran Nuclear Deal) in May of 2018, that withdrawal signaled not only the United States withdrawal from that deal, of which it had been one of the chief negotiators, but also of a new level of trade engagement by the United States and the Trump Administration within the international community. European countries, in an attempt to continue existing business relationships with the Iranians, pulled an old tool from their toolbox – the blocking statute – to attempt to allow European and multinational …

Desert In The Deluge: Using Data To Drive Racial Equity, Elizabeth J. Kennedy

Catholic University Law Review

Corporations, governments, and research institutions have learned to harness the power of data to make strategic and operational decisions that drive profitability, efficiency, and efficacy. Making meaningful use of an unprecedented and expanding volume of high velocity, complex and variable data sets—so called “big data—has also been heralded to help solve social problems like human trafficking, homelessness and climate change. Despite this data deluge, those engaged in the advancement of racial equity in workforce development operate in a data desert. Structural barriers to workplace opportunity and advancement perpetuate racialized gaps in wages and household wealth and result in poorer outcomes …

Adapting U.S. Electronic Surveillance Laws, Policies, And Practices To Reflect Impending Technological Developments, Eric Manpearl

Catholic University Law Review

Intelligence collection must always evolve to meet technological developments. While the collection programs under Section 702 of the FISA Amendments Act of 2008 have produced a great deal of valuable intelligence over the last decade, the United States must begin to think about foreseeable technological developments and strategically consider how to conduct signals intelligence (SIGINT) collection in the future.

This Article identifies four technological trends that could significantly impact the way the United States conducts SIGINT. Individuals now have access to sophisticated technologies that formerly only governments seemed capable of creating, and this decentralization of capabilities will likely only increase …

The Bumpy Road Of Home States’ Regulation Of Globalized Businesses—Legal And Institutional Disruptions To Supply Chain Disclosure Under The Modern Slavery Act, Shuangge Wen, Jingchen Zhao

Catholic University Law Review

In response to the paradigm shift from territorial corporations to global businesses and supply chains, states are increasingly engaging in regulating extraterritorial business activities, supply chain disclosure regulation being a primary example. Much ink has thus far spilled on the intrinsic doctrinal and conceptual aspects of this regulatory approach, with its interactions to the external regulatory and institutional environment far less considered. This article seeks to correct the scholarly imbalance by critically examining how s.54 of the UK Modern Slavery Act (MSA) – a prominent attempt among state-level initiatives designed to promote human rights protection within global supply chains – …