Digital Commons Network^™

Protecting Internet Freedom At The Expense Of Facilitating Online Child Sex Trafficking? An Explanation As To Why Cda's Section 230 Has No Place In A New Nafta, Elizabeth Carney

Catholic University Law Review

Section 230 of the Communications Decency Act was passed in 1996 to promote and develop a nascent internet industry. The legislation affords protection from civil liability to internet providers that host content created by a third party. Section 230 protects internet companies that would otherwise be financially devastated by every defamation or libel lawsuit brought for each bad review or false statement posted. As the argument goes, all the familiar websites, such as Facebook, Yelp, and Twitter, would not have flourished without this vital legislation. Although Section 230 has played an important role in developing the internet today as we …

Who Is The Client? Rethinking Professional Responsibility For Benefit Corporations, Joseph R. Pileri

Catholic University Law Review

A growing social enterprise movement has led companies to increasingly opt into the benefit corporation form, and those companies are hiring lawyers. Benefit corporations challenge the notion that corporate law’s primary focus is on furthering shareholder interests. While many have written about the benefit corporation with respect to corporate fiduciary law, this Article is the first to explore the form’s ethical implications for lawyers. Ethical obligations necessarily reflect substantive law governing client organizations; changes to the corporate form presented by benefit corporation legislation should reverberate in legal ethics. The legal profession, however, has not addressed how to lawyer to a …

Get Real: Implications And Impositions Of The Real Id Act Of 2005 On Vulnerable Individuals And States, Haley Hoff

Catholic University Law Review

The Act imposed strict requirements for those seeking to obtain personal identification documents. This Comment provides a background of the Real ID Act, including its controversial enactment, flawed implementation, and the effects the Act has on citizens. It will examine the various approaches states have employed during their process of coming into compliance with the Act as well as states’ struggle to achieve compliance. This Comment also provides a critical look into the unique issues that lower income and elderly individuals face as a result of the Act. Lastly, the Comment offers various practical and legal solutions that must be …

Is Title Vii > Ix?: Does Title Vii Preempt Title Ix Sex Discrimination Claims In Higher Ed Employment?, Mckenzie Miller

Catholic University Law Review

Across all job sectors, women working full-time earned about 80 percent of what men earned in 2016. Within higher education this gender gap persists in salary, hiring, promotions, and other aspects of academic employment. Professors can seemingly attempt to remedy this under Title VII of the Civil Rights Act or Title IX of the Education Amendments, both of which prohibit sex discrimination in higher education. Circuits, however, have split as to whether Title VII preempts Title IX in actions for employment discrimination in higher education.

The Third Circuit revived this split in Doe v. Mercy Catholic Medical Center, and …

Law And Economic Development In The United States: Toward A New Paradigm, Yong-Shik Lee

Catholic University Law Review

Economic development is the term that has been associated with less developed countries in the Third World (“developing countries”), not the economically advanced countries (“developed countries”), such as the Untied States. However, the changing economic conditions in recent decades, such as the widening income gaps among individual citizens and regions within developed countries, stagnant economic growth deepening economic polarization, and an institutional incapacity to deal with these issues, render the concept of economic development relevant to the assessment of the economic problems in developed countries. In the United States, these economic problems caused a significant political consequence such as the …

Comparative Perspectives Of Adult Content Filtering: Legal Challenges And Implications, Adam Szafranski, Piotr Szwedo And Malgorzata Klein

Catholic University Law Review

The internet is virtually ubiquitous and is becoming more accessible to young people all over the world. Along with the many benefits it brings, the internet poses serious risks to the human rights of its most vulnerable users, viz. children. The United Kingdom, Poland and the U.S. State of Utah have already started to mitigate this risk through a variety of regulatory mechanisms. A priori, both self-regulation and hard law can satisfy international requirements on freedom of services and freedom of expression, but each requires careful scrutiny. Neither self-regulation nor soft law appear to be sufficient. It would seem, …

Classifying Wcag 2.0 Guidelines As The Legal Standard For Websites Under Title Iii Of The Americans With Disabilities Act, Toni Cannady

Catholic University Law Review

Over the last two decades, technological advancements have driven significant changes in society that have led to more productivity, more convenience, and more accessibility. In particular, websites serve as a platform for consumers to engage in commerce. Under Title III of the Americans with Disabilities Act, public accommodations are prohibited from discriminating on the basis of disability. Nonetheless, to date, the law “has failed to keep pace with these technological advances” creating profound effects for individuals with disabilities and businesses alike. However, in the absence of clearly defined standards, lawsuits by plaintiffs have fueled a new body of judicially made …

At The Intersection Of Due Process And Equal Protection: Expanding The Range Of Protected Interests, Vincent J. Samar

Catholic University Law Review

Are the Due Process and Equal Protection clauses interconnected? Justice Kennedy in Obergefell v. Hodges, the Supreme Court case holding the fundamental right to marry includes the right to a same-sex marriage, stated that they are profoundly connected in that each clause “may be instructive as to the meaning and reach of the other.” But exactly what instruction each doctrine might afford the other, Justice Kennedy did not say. An earlier Supreme Court decision, Plyler v. Doe, also suggested a connection, when the Court held unconstitutional a Texas statute baring funding for the education of undocumented children. But …

From Innovation To Abuse: Does The Internet Still Need Section 230 Immunity?, Benjamin Volpe

Catholic University Law Review

In 1996, Congress passed the Communications Decency Act to allow the screening of offensive material from the internet, while preserving the continued development of the internet economy without burdensome regulation. However, for years, online intermediaries have successfully used the Act as a shield from liability when third parties use their online services to commit tortious or criminal acts. This Comment argues that a wholly-unregulated internet is no longer necessary to preserve the once-fledgling internet economy. After evaluating various approaches to intermediary liability, this Comment also argues that Congress should take a more comprehensive look at consumer protection online and establish …

The Religious Roots Of The Progressive Income Tax In America, Joshua Cutler

Catholic University Law Review

I examine the debate over the first peacetime income tax in the United States in 1894 to investigate the role of religion in enacting the tax and providing moral legitimacy. I find that congressional proponents repeatedly and explicitly argued that a progressive income tax was a biblical tax that best conformed to Judeo-Christian teachings on economics and fundraising. I discuss the history of American religious fundraising practices, including the trend leading up to 1894 that advocated for proportionate giving of income as the best method of giving, as well as the related tithing movement. I document that congressional income tax …

The Human Rights Movement And The Prevention Of Evil: The Need To Look Inward As Well As Out, Jeffrey A. Brauch

Catholic University Law Review

The modern human rights movement began as a response to great evil perpetrated by individuals and nations against others during and preceding World War II. The movement has been dedicated to protecting the rights of individuals by confronting evil and holding nations accountable should efforts to prevent it fail.

This article contends that while the human rights movement is good at confronting evil “out there,” it has failed in important ways to recognize flaws within itself. In particular, it displays a hubris that shows itself in two ways. First, the movement has embraced a utopian expansion of rights to be …

The Constitutionality Of Appropriations Transfer Authority Under The Nondelegation Doctrine, Shelby Begany Telle

Catholic University Law Review

Article I, Section 9 of the U.S. Constitution provides the Legislative Branch with the power of the purse by granting it the exclusive authority to designate how federal dollars may be spent via appropriations laws. Congress often includes transfer authority, which provides Executive Branch recipients of appropriations the ability to shift funds from one budget account to another. Allowing an agency to transfer funds from one non-specific appropriation to another is arguably an unconstitutional abdication of the Legislative Branch’s exclusive power over the purse strings.

Appropriations transfers are unconstitutional under the nondelegation doctrine. Certain attempts to alleviate these nondelegation concerns …

Preventing Tax-Exempt Propaganda: The Case For Defining The Second Prong Of The Methodology Test, Jordanne Miller

Catholic University Law Review

Under current Treasury Regulations, various propaganda groups throughout the United States are exempt from paying federal income tax. This is so because the current test used by the IRS to determine tax-exempt eligibility, the methodology test, is incapable of separating wild propaganda from viewpoints supported by facts.

The IRS created the methodology test in the late 1970s/early 1980s. Since then, groups denied tax-exempt status have repeatedly challenged its validity. The IRS has responded, and the test has evolved. However, the second prong of the test remains undefined—it is still unclear what it means for facts to be “distorted.” This Comment …

Smith, Scalia, And Originalism, Amul R. Thapar

Catholic University Law Review

To many principled Originalists and proponent of religious liberty, the opinion in Employment Division v. Smith poses a puzzle. Many commentators believe Smith contradicts the original meaning of the Free Exercise Clause and hinders the right to religious freedom. Yet it was written by Justice Scalia, a self-professed Originalist and lion of the law. I attempt to resolve this puzzle, reviewing Justice Scalia’s speeches and opinions on religious liberty. Ultimately, Justice Scalia’s opinion in Smith reflects his commitments to certain jurisprudential principles. Viewing these principles in the light of New Originalism, though, it becomes clear how Smith most likely does …

Mastering Masterpiece, Kristen K. Waggoner

Catholic University Law Review

Religious freedom ensures that every person has the right to explore life’s deepest questions and to live out their religious convictions in public life. Free speech similarly ensures that all have the liberty to express their views and pursue truth without fear of government punishment. Free exercise of religion and free speech are durable rights that do not turn on cultural popularity or political power; these freedoms enable us to coexist peacefully with each other despite deep differences. Yet these freedoms are being sorely tested today by government efforts to suppress the rights of creative professionals—painters, filmmakers, printers, and many …

Alternative Remedies For Undocumented Workers Left Behind In A Post-Hoffman Plastic Era, Rachel S. Steber

Catholic University Law Review

Congress enacted the National Labor Relations Act (NLRA) in 1935 in order to level the bargaining power of employees and employers to prevent burdening the flow of commerce and depressing workers’ wages. The NLRA vests the administration of promulgating the goals of the NLRA in the National Labor Relations Board (Board), broadly stating that the Board should take such affirmative action as necessary to effectuate the policies of the Act.

In 1935, however, Congress could not predict the future demographic makeup of the American workforce, and in its definition of an “employee” as covered under the NLRA, the statute makes …

Recognizing Anti-Zionism As An Attack On Jewish Identity, Alyza D. Lewin

Catholic University Law Review

This article answers the false assertion that Zionism is nothing more than a political movement that should be abandoned by Jewish students on American university campuses. Yearning for the Land of Israel and Jerusalem is, in fact, a deep spiritual integral part of Jewish identity. It dates back 3000 years to Biblical times. The connection of Jews to Zion is a key component of Jews' shared ancestry and ethnicity and has persisted throughout Jewish history. This dedication is demonstrated today by the custom that concludes a Jewish wedding ceremony and by the declaration ending the Passover Seder. Harassment of students …

A Hollow History Test: Why Establishment Clause Cases Should Not Be Decided Through Comparisons With Historical Practices, Alex J. Luchenitser, Sarah R. Goetz

Catholic University Law Review

Some judges, scholars, and advocates have criticized the Supreme Court’s Establishment Clause jurisprudence, arguing that existing Establishment Clause tests give courts too little guidance and too much discretion, and calling on the Court to replace those tests with a test that compares challenged practices to long-standing historically accepted ones. But such a historical-practice test would be much more difficult to apply than the Court’s current jurisprudence and would engender greater confusion among lower courts than there is now.

That’s because there are very few long-standing historical practices that are legitimate candidates for serving as evidence of the intent of the …

Meeting The Challenges To America's Economic Future: Charting The Course In U.S. Intellectual Property & Innovation Policy, With An Introduction By Megan M. La Belle, International Ip Commercialization Council

Catholic University Law Review

No abstract provided.

Standing To Appeal At The Federal Circuit: Appellants, Appellees, And Intervenors, Matthew J. Dowd, Jonathan Stroud

Catholic University Law Review

The America Invents Act of 2011 created three administrative patent review regimes that have flooded the rechristened Patent Trial and Appeal Board with almost 7,000 new matters in just under five years. The flood of matters—primarily, inter partes reviews (IPRs)—has led to more than 1,000 appeals to the U.S. Court of Appeals for Federal Circuit from administrative proceedings, eclipsing any other forum of origin. With the flood of administrative appeals, questions of first instance on appellate standing have arisen, resulting in a handful of important panel decisions.

While the other regional Courts of Appeals have largely adopted legal tests, standards, …

Re-Evaluating The Demise Of The Average, Ordinary, Reasonable Person: Unintended Consequences In The Law Of Nuisance, George P. Smith & William P. Lane

Catholic University Law Review

This Article advocates for a wider pleading use of the tort of nuisance—this, because of the unresolved complexities in the doctrine of causation which continue to plague an effective use of negligence. The confusing awkwardness or, perhaps, the actual demise, of the notion of an average, ordinary, reasonable person so essential to improving negligent wrongdoing has caused aggravation over the years and, indeed, given rise to a state of torbidity.

The judiciary can more easily resolve this evidentiary quagmire by shifting its judicial attention and analysis to the tort of nuisance. With alarming social indicators and statistical projections, confirming the …

The Essence Test: Picking Up A Supreme Court Fumble, Thomas Gentry

Catholic University Law Review

Labor arbitration is the primary mean by which employers and employees resolve disputes. The shortcomings of the Supreme Court’s jurisprudence on labor arbitration have intensified as more employees opt for arbitration. These shortcomings are no more apparent than with the National Football League and its players.

This Comment uses NFL player Adrian Peterson and his player-discipline arbitration process as an example of the gaps in the Supreme Court’s case law. The Supreme Court announced the Essence Test in 1960 with the seminal Steelworker Trilogy Cases. Since 1960, lower courts have been unable to consistently apply the test, leading to a …

La Promesa Cumplida [The Promise Fulfilled]: How The U.S. Constitution Has Enabled Colonialism, Dean Delasalas

Catholic University Law Review

In 2016, as a debt-ridden Puerto Rico tried and failed to protect its assets from rapacious creditors, Congress enacted the Puerto Rico Oversight and Economic Management Act (PROMESA). PROMESA created the Financial Oversight and Management Board, a group of unelected officials charged with helping Puerto Rico restructure its debt and “achieve fiscal responsibility.” To the surprise of many, the Oversight Board was empowered to invalidate Puerto Rican laws, strong-arm the Puerto Rican government into accepting draconian spending cuts in education, healthcare, and pensions and sue officials who refused to comply.

Sadly, the extent of power given to the Oversight Board …

Soft-Served Deserts: Soft Retributivism As A Free Will-Independent Alternative For The Criminal Justice System, Theodore Benson Randles

Catholic University Law Review

Human free will is foundational to our criminal justice system, yet contemporary scientific understanding casts doubt on a robust sense of human free will. If a person’s actions are wholly determined by the laws of physics, is that person morally deserving of punishment? This Article argues that our criminal justice system can be put on a footing that is not threatened by physical determinism. It suggests that a coherent system of criminal punishment can be founded on Daniel Farrell’s notion of “weak retributivism.” The Article build on Farrell’s work and develops a system built up from the universal right to …

From Storefront To Dashboard: The Use Of The Americans With Disabilities Act To Govern Websites, Kelby S. Carlson

Catholic University Law Review

The question of the effects of technological change on the interpretation of statutes is a complicated one. Particularly for statutes that govern a broad range of issues, the advent of new technology can precipitate re-examination of the rationale behind, and nature of, the relevant law. The Americans with Disabilities Act was enacted, in part, to give Americans with disabilities greater access to public space, allowing them to enjoy the advantages such access offers on an equal footing with the able-bodied. The adoption of digital technology across society and, in particular, the widespread ubiquity of the internet now raise questions about …

The Perfect Play: Why The Fair Labor Standards Act Covers Division I Men’S Basketball And Football Players, Richard Smith Jr.

Catholic University Law Review

An emerging labor and employment issue during the last decade—and one which has yet to be conclusively decided—is whether college athletes are employees of the colleges and universities for which they compete. The most employed attack by college athletes has been to attempt to gain coverage under the National Labor Relations Act (NLRA), which would allow the athletes to unionize and collectively bargain with the colleges and universities. However, this method has been largely unsuccessful, and the National Labor Relations Board (NLRB) decision denying coverage does not provide any hope that future attempts under the NLRA will be any more …

Analytical Nightmare: The Materially Adverse Action Requirement In Disparate Treatment Cases, Esperanza N. Sanchez

Catholic University Law Review

Title VII of the Civil Rights Act of 1964 expressly prohibits employment discrimination on the basis of an individual’s race, color, religion, sex, or national origin. Since its passage, however, federal courts have imported an adverse employment action requirement into Title VII jurisprudence despite its absence from the statutory language. Inconsistent determinations as to which employment actions qualify as sufficiently adverse under Title VII have resulted in an analytical confusion, yielding anemic anti-discrimination protections that, in effect, shelter invidious employment practices from liability. This Note argues that the anti-discrimination jurisprudence surrounding the adverse action requirement diametrically opposes both the letter …

Equitable Relief For Erisa Benefit Plan Designation Mistakes, Raymond C. O'Brien

Catholic University Law Review

Since its enactment in 1974, the Employee Retirement Income Security Act (ERISA) and related insurance and disability programs provided retirement security for employees and employers, amassing more than $9 trillion in protected assets. Congress preempted conflicting state laws so as to promote certainty of distribution and ease of administration, two hallmarks of ERISA-governed plans. Nonetheless, since 1974, American society embraced spousal equality, an increased number of marriages end in divorce, and wealth most often passes through nonprobate transfers such as insurance contracts and pension policy plans. To accommodate these societal and wealth changes, states enacted statutes to provide elective share …

Federal Criminal Defendants Out Of The Frying Pan And Into The Fire? Brady And The United States Attorney’S Office, Vida B. Johnson

Catholic University Law Review

The Supreme Court decided Brady v. Maryland in an effort to ensure fair trials and fair outcomes. The Brady decision requires prosecutors to disclose exculpatory evidence regarding guilt of the defendant. The Brady rule is meant to ensure innocent defendants are not convicted for crimes they did not commit. This rule should have unanimous support from both prosecution and defense teams, and yet Brady violations continue to occur within prosecutor offices around the country.

No offender highlights the short comings of the current system more so than the United States Attorney’s Office. Since the Brady decision, the USAO has repeated …

Partisan Gerrymandering And The Illusion Of Unfairness, Jacob Eisler

Catholic University Law Review

Contemporary political discussions have given increasing attention on gerrymandering. Most discussions of gerrymandering focus on the practice’s illegitimate use as a weapon to distort popular democracy. This has been the Supreme Court’s focus as well, but all to no avail. The Supreme Court’s gerrymandering jurisprudence illustrates the difficulty in policing the practice, with the Court struggling to formulate a coherent test to determine when gerrymandering is permissible and when it runs afoul.

The increase focus on gerrymandering as a weapon invites a discussion whether the practice may is inherently illegitimate. This Article suggests two conditions, described as “partisan loyalty” and …