Digital Commons Network^™

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

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 …

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 …

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

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 …

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

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 …

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 …

Swipe Right Into A Disciplinary Hearing: How The Use Of Dating Apps Could Earn An Attorney More Than A Bad First Date, Zachary S. Aman

Catholic University Journal of Law and Technology

The Model Rules of Professional Conduct seek to police the conduct of attorneys. Each jurisdiction adopts its own rules of professional conduct to apply to the attorneys licensed within it. Notably, the model rules prohibit any sexual relationship between the attorney and client unless that relationship precedes the attorney-client relationship. Traditionally, defining a "sexual relationship" was simple, particularly if the attorney and client engaged in sexual intercourse. The introduction of dating apps, however, has blurred the line.

This article outlines the inherent risks of attorneys using dating apps at a time when most newly-licensed attorneys make up the majority of …

Forensic Microbiome Evidence: Fourth Amendment Applications And Court Acceptance, Trason Lasley

Catholic University Journal of Law and Technology

No abstract provided.

Playing God In The 21st Century: How The Push For Human Embryonic Germline Gene Editing Sidelines Individual And Generational Autonomy, Anna E. Melo

Catholic University Journal of Law and Technology

Every four and a half minutes a child with a genetic birth defect is born in the United States. For some, these conditions are treatable and manageable, but sadly for others, they are a death sentence. Congenital malformations and chromosomal abnormalities are the leading cause of infant mortality. CRISPR-Cas9 presents hope for the future, a liberation from the heritable genetic shackles that a child would otherwise be trapped in. With such optimism for future applications of germline gene editing, there are also great concerns with what national and global limitations and auditing must be in place to permit “genetic hedging.” …

§230 And Tinfoil Hats: What Conspiracy Theories Teach Us About The Marketplace Of Ideas And Online Speech, Connor B. Flannery

Catholic University Journal of Law and Technology

Famously imputed into First Amendment jurisprudence by Justice Oliver Wendell Holmes, the Marketplace of Ideas is a foundational paradigm in free speech theory. However, current trends in social discourse suggest the Marketplace has crashed. Conspiracy theories illustrate this crash as a story of unintended consequences and, paradoxically, a consequence of judicial and legislative efforts to prevent it. Acknowledging the popularity and widespread use of the internet and social media, I explore solutions to rejuvenate the Marketplace of Ideas and better align its prominence in First Amendment doctrine with the reality of the current speech landscape.

Learning From Mistakes: A Guide To Expanding The Oversight Board, Kevin Frazier

Catholic University Journal of Law and Technology

More than 4.4 billion people use social media. A few platforms attract a significant number of those users—for example, 2.9 billion people use Facebook, 2.3 billion use YouTube, and 1.2 billion use WeChat. How these major platforms govern themselves with respect to content moderation has an impact on billions of users and may lead to policy changes across other platforms that affect billions more. That is why it is so important to analyze Meta’s Oversight Board—an independent body created for the purpose of “promot[ing] free expression by making principled, independent decisions regarding content on Facebook and Instagram by issuing recommendations …

Establishing The Legal Framework To Regulate Quantum Computing Technology, Kaya Derose

Catholic University Journal of Law and Technology

No abstract provided.

One Small Step On Tiktok, One (Possibly) Giant Leap For The Dance Community: How Tiktok Spearheaded A Change In The Seemingly Stagnant Field Of Copyright Law, Sydney L. Solferino

Catholic University Journal of Law and Technology

No abstract provided.

One Size Does Not Fit All: How The California Privacy Rights Act Will Not Improve Employee Data Collection And Privacy Rights, Kayla N. Bushey

Catholic University Journal of Law and Technology

No abstract provided.

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 …

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 …