Law Commons^™

God’S Grace And The Marketplace: Mainline Protestant Church, Faith And Business, Sarah Helene Duggin

Scholarly Articles

This paper explores the engagement of Mainline Churches with business ethics in the workplace and offers some ideas for how Mainline churches can participate more fully in the work that needs to be done. Part I suggests that, for many years, Mainline churches were less active than one might expect in supporting the development of robust faith perspectives on business ethics, and it identifies possible cultural, financial, and structural factors why this may be so. Many of these factors are common to other religious traditions, although some are particularly relevant to Mainline denominations. The discussion in Part II begins with …

Defending Place-Based Philanthropy By Defining The Community Foundation, Roger Colinvaux

Scholarly Articles

The article proceeds in three parts. Part I of the article provides a historical overview of the tax-exempt status of community foundations, from inception to the present day. Part II shows how the settled wisdom on the tax status of community foundations has been upset by the rise of the nationally sponsored donoradvised fund, the extent to which community foundations are different from national donor-advised fund sponsors, and whether it would be beneficial to define the community foundation for tax siders the possible content of a definition of the community foundation in the Internal Revenue Code in terms of their …

Demokracja Elektorska I Populistyczna Z Perspektywy Wyboru D. Trumpa Na Presydenta Usa, Rett R. Ludwikowski

Scholarly Articles

The article aims to investigate the effectiveness of the American system of "electoral democracy". Considering this problem from a comparative perspective, the author notes that the American system of "electoral college" has not become a universally accepted standard for countries with a federal system or states with ethnically strong regional centers. In essence, each presidential election in the United States which ended in the victory of one candidate in the general, popular election and the other in the Electoral College, resulted in inter-party conflicts, mass demonstrations of dissatisfaction of citizens disappointed by the US electoral system and even in the …

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

Scholarly Articles

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 Indecency And Injustice Of Section 230 Of The Communications Decency Act, Mary Graw Leary

Scholarly Articles

Section 230 of the Communications Decency Act is a 1996 law wholly inadequate to address 21^st Century problems. The most egregious example of this is online sex trafficking, which was allowed not only to exist, but also to thrive due, in large part, to §230. This Article examines the development of the jurisprudence regarding online advertising of sex-trafficking victims and juxtaposes the forces that created § 230 with those preventing its timely amendment. This Article argues that, although § 230 was never intended to create a regime of absolute immunity for defendant websites, a perverse interpretation of the non-sex …

Touch Dna And Chemical Analysis Of Skin Trace Evidence: Protecting Privacy While Advancing Investigations, Mary Graw Leary

Scholarly Articles

Forensic science transforms criminal investigations by resolving previously unsolvable cases and bringing an increased sense of justice to communities. This application of scientific disciplines to legal questions aids investigators in solving crimes. While many sciences can be utilized—such as physics (pattern evidence), chemistry (toxicology), or biology (cause of death), to name a few—two aspects of scientific advancement have played an outsized role in responding to crime. Trace evidence analysis—specifically, deoxyribonucleic acid (DNA) analysis—is an essential component to an effective and accurate criminal justice system. DNA evidence has emerged as a powerful tool to identify perpetrators of unspeakable crimes and to …

Kennedy’S Last Term: A Report On The 2017–2018 Supreme Court, Kevin C. Walsh, Marc O. Degirolami

Scholarly Articles

Twenty-eighteen brought the end of Justice Anthony Kennedy’s tenure on the Supreme Court. We are now entering a period of uncertainty about American constitutional law. Will we remain on the trajectory of the last half-century? Or will the Court move in a different direction?

The character of the Supreme Court in closely divided cases is often a function of the median justice. The new median justice will be Chief Justice John Roberts if Kennedy’s replacement is a conservative likely to vote most often with Justices Clarence Thomas, Neil Gorsuch, and Samuel Alito. This will mark a new phase of the …

“Dignity In Living And In Dying”: The Henry H. H. Remak Memorial Lecture, George P. Smith Ii

Scholarly Articles

Dignity is seen commonly as an ethical obligation owed to human persons. The dimensions of this obligation in today's post secular society are, however, subject to wide discussion and debate; for the term, human dignity, and its preservation, defies universal agreement. Yet, its preservation, together with the prevention of indignity, is a guiding principle or at least a vector of force in a wide range of issues ranging from recognizing and protecting the civil rights of the citizen members of the LGBTQ community throughout the nation to the care of the disabled and to the dying.

In clinical medicine, safeguarding …

Constitutional Anomalies Or As-Applied Challenges? A Defense Of Religious Exemptions, Mark L. Rienzi

Scholarly Articles

In the wake of Burwell v. Hobby Lobby and now in anticipation of Craig v. Masterpiece Cakeshop, Inc., the notion that religious exemptions are dangerously out of step with norms of Constitutional jurisprudence has taken on a renewed popularity. Critics increasingly claim that religious exemptions, such as those available prior to Employment Division v. Smith and now available under the federal Religious Freedom Restoration Act (RFRA), are a threat to basic fairness, equality, and the rule of law. Under this view, exemptions create an anomalous private right to ignore laws that everyone else must obey, and such a scheme …

Failed Charity: Taking State Tax Benefits Into Account For Purposes Of The Charitable Deduction, Roger Colinvaux

Scholarly Articles

The Tax Cuts and Jobs Act (TCJA) substantially limited the ability of individuals to deduct state and local taxes (SALT) on their federal income tax returns. Some states are advancing schemes to allow taxpayers a state tax credit for contributions to a charity controlled by the state. The issue is whether state tax benefits are deductible as a charitable contribution for purposes of the federal income tax. Under a general rule of prior law—the full deduction rule—state tax benefits were ignored for purposes of the charitable deduction. If the full deduction rule is applied to the state workaround schemes, then …

International Law And The Balfour Decision, Geoffrey R. Watson

Scholarly Articles

The Balfour Declaration had enormous political significance, but did it have any legal force? Was it legally binding, exposing Britain to legal remedies for its breach, or was it merely an expression of policy that could be disregarded without legal consequences? These questions are of intense interest to legal historians, but they also have contemporary political relevance. The issue is not so much whether Britain might be liable to the Palestinians for failing to safeguard the “civil and religious rights” of non-Jewish residents of Palestine, though that is a theoretical possibility. Instead, the question is whether the Declaration is legally …

The Past, Present, And Future Of The U.S. Patent System, Megan M. La Belle

Scholarly Articles

This essay discusses the evolution of the U.S. patent system over the past decade. It explains how various rules established by the U.S. Court of Appeals for the Federal Circuit, the appellate court with exclusive jurisdiction over patent cases, created an environment that heavily favored patent owners and disadvantaged accused infringers. In response, Congress and the courts set out to reform our patent system and implemented a host of changes, most notably the passage of comprehensive legislation known as the America Invents Act (AIA) in 2011. Since the AIA, the patent system in the U.S. has certainly changed. Indeed, some …

The "Irish Born" One American Citizenship Amendment, Kevin C. Walsh

Scholarly Articles

Our Constitution has a deferred maintenance problem because we have fallen out of the habit of tending to its upkeep ourselves. The silver lining is a double benefit from any constitutional maintenance projects that we undertake now. These projects are good not only for what they do to our Constitution, but also for making us exercise self-government muscles that have atrophied from civic sloth.

Fortunately, the time has never been better to repeal one of our Constitution’s most pointlessly exclusionary provisions. The President of the United States is married to a naturalized citizen. And nobody can legitimately question the patriotism …

Religious Organizations As Partners In The Global And Local Fight Against Human Trafficking, Mary Graw Leary

Scholarly Articles

This paper explores the role of religious organizations as effective partners in the fight to end modern day slavery. As a crime with both global and local dimensions, trafficking must be combatted with tools that are both global and local. Such tools include the world’s religions and religious organizations. They have been addressing human trafficking for decades, and through their work with the poor, immigrants, and sexually exploited, they possess significant knowledge of the manifestations of this form of exploitation and can be important stakeholders in combating it. The paper concludes by offering several recommendations for how policymakers can deepen …

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

Scholarly Articles

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 …

Assessing Assisted Reproductive Technology, Raymond C. O'Brien

Scholarly Articles

Technological innovation possesses both opportunity and challenge. Because assisted reproductive technology (ART) involves sexual intimacy, parenthood, personhood, gender identity, privacy, legacy, and a plethora of religious, historical, sociological, and ethical underpinnings, the challenges presented in such technological innovation are substantial. Nonetheless, the opportunities are significant and progressive. Because of in vitro fertilization, gestational and genetic surrogacy, posthumous conception, and mitochondrial replacement therapy, humans now have the opportunity to overcome infertility, gender obstacles to parentage, dynastic limitations, and diseases that have long plagued mothers and infants. However, challenges include the exploitation of surrogates, unequal access to ART services, possibilities of cloning …

“Let Them Eat Cake”: Examining United States Retirement Savings Policy Through The Lens Of International Human Rights Principles, Regina T. Jefferson

Scholarly Articles

This article uses an international human rights framework to analyze and critique the effectiveness of the United States' retirement system and its underlying policies. The article challenges the ongoing pension reform debate to include considerations outside traditional economic theory, such as income inequality, the dignity of the elderly, and the irreducible mutuality of people. While a human rights analysis will not yield a precise policy prescription for the retirement savings crisis, it will serve as an additional framework within which the government's economic and social policies regarding the treatment of the elderly can be evaluated, expanding the focus and range …

Without Evidence: Joel Richard Paul’S John Marshall, Kevin C. Walsh

Scholarly Articles

John Marshall—soldier, lawyer, legislator, statesman, and fourth chief justice of the United States—led a long public life that spanned from the American Revolution to the rise of Jacksonian democracy. Joel Richard Paul’s full-length biography takes the reader from Marshall’s birth on the Virginia frontier in 1755, to his death in 1835 at the head of an American judiciary that had gained significantly in power and respect because of Marshall’s leadership over the preceding 34 years.

The Importance Of A Participatory Charitable Giving Incentive, Roger Colinvaux

Scholarly Articles

Leading tax reform proposals contemplate a charitable deduction claimed by just five percent of taxpayers. Such a limited deduction would fatally undermine the foundations of a giving incentive that has fostered an altruistic and pluralistic society through its broad-based participation and would seriously harm the charitable sector. Section 501(c)(3) would recede in importance as setting the standard for a public benefit organization. More gifts would go to private benefit and political organizations. The article argues that a charitable deduction for the few should be rejected. Instead, Congress should consider expanding the charitable giving incentive by extending it to more taxpayers …

The Patently Unexceptional Venue Statute, Megan M. La Belle, Paul R. Gugliuzza

Scholarly Articles

Legal doctrines developed by the U.S. Court of Appeals for the Federal Circuit are often derided as “exceptionalist,” particularly on issues of procedure. The court’s interpretation of the venue statute for patent infringement suits seems, at first glance, to fit that mold. According to the Federal Circuit, the statute places few constraints on the plaintiff’s choice of forum when suing corporate defendants. This permissive venue rule has lead critics to suggest that the court is, once again, outside the mainstream. The Supreme Court’s recent grant of certiorari in TC Heartland v. Kraft Foods would seem to indicate that those critics …

Faith-Based Law Schools: Making Mission Matter, Veryl Victoria Miles

Scholarly Articles

A faith-based law school offers unique values to the legal profession and larger community. However, this faith-based identity requires attention by the dean, faculty, administration, student body, and community. Without attention to a faith-based identity, a law school can quickly lose its religious uniqueness.

This Article makes the case that a faith-based law school needs to consider “the essentials” to making its mission matter. First, the faith-based school must make a mission statement that incorporates its church’s religious values and traditions. Second, the faith-based law school needs to create a mission-based environment. This environment can only be achieved if the …

Risks And Rewards Of Externships: Exploring Goals And Methods, Leah Wortham, Linda F. Smith, Jeff Giddings

Scholarly Articles

This article grew from a presentation relating externship clinical programs to the theme of the July 2016 International Journal of Clinical Legal Education and Association of Canadian Legal Education conference: The Risks and Rewards of Clinical Legal Education Programmes. Externships or field placement programs involve students placed away from the law school and supervised by a person who is not employed by the law school. Externships offer many potential rewards for students as well as other stakeholders, including especially community institutions. But there are also risks—risks that the externship will be expected to accomplish too much with too few resources …

Democracy Clauses In The Americas: The Challenge Of Venezuela’S Withdrawal From The Oas, Antonio F. Perez

Scholarly Articles

In light of Venezuela’s unprecedented notice of its intention to withdraw from the Organization of American States, this essay by a former member of the Juridical Committee of the OAS explores the range of discretion available to the OAS and its Member States in interpreting and applying the OAS’s unique provision for withdrawal. Presenting the first extensive analysis of this provision of the OAS Charter, the essay argues that the withdrawal clause can plausibly be interpreted to require Venezuela to fulfill all its obligations under the OAS Charter, including its obligations to respect democracy, before its unprecedented withdrawal can take …

Judicial Departmentalism: An Introduction, Kevin C. Walsh

Scholarly Articles

This Article introduces the idea of judicial departmentalism and argues for its superiority to judicial supremacy. Judicial supremacy is the idea that the Constitution means for everybody what the Supreme Court says it means in deciding a case. Judicial departmentalism, by contrast, is the idea that the Constitution means in the judicial department what the Supreme Court says it means in deciding a case. Within the judicial department, the law of judgments, the law of remedies, and the law of precedent combine to enable resolutions by the judicial department to achieve certain kinds of settlements. Judicial departmentalism holds that these …

Affirmatively Replacing Rape Culture With Consent Culture, Mary Graw Leary

Scholarly Articles

The debate concerning affirmative consent consists of two camps: those who assert people must affirmatively establish a desire to engage in sexual contact and those who believe this is an unattainable standard. However, this is not where the debate should start and end. This paper argues that the movement towards affirmative consent in sexual contact will reduce the occurrence of sexual assault. Criminal law sets the backdrop for this paper, but the author recognizes the limits of criminal law. In order to combat sexual assault, there must be a multidisciplinary response. By providing a comprehensive definition of affirmative consent and …

The Role And Experience Of Law Students And Law Schools In Clemency Project 2014, J.P. "Sandy" Ogilvy

Scholarly Articles

The response of lawyers to the call to volunteer with Clemency Project 2014 was phenomenal. More than 3000 individuals from over 800 law firms, law schools, and organizations reviewed more than 36,000 applications from federal prisoners who requested pro bono assistance in filing an application for commutation of sentence with the President. By the end of the Obama administration 2581 petitions were filed or supported by Clemency Project 2014. Of those, 894 applicants were granted commutations by President Obama.

This article looks at the response of the law schools and law students to the call for volunteers. The numbers are …

A Role For Regulations, Standards, Best Practices And Monitoring In Enhancing Quality In Clinical Legal Education Programs, Leah Wortham

Scholarly Articles

This report analyzes and makes recommendations regarding three related documents: the Draft Model Regulation on Legal Clinic of a Higher Educational Institution as posted by the Ukrainian Ministry of Education and Science on April 19, 2017 (hereafter Regulation); the Standards for Legal Clinics Functioning in Ukraine developed by the Association of Legal Clinics of Ukraine (hereafter Standards); and an instrument to monitor law school clinics being developed by the Association (hereafter Monitoring Instrument). The report also makes recommendations about how the Association Legal Clinics of Ukraine (hereafter ALCU or Association) might be strengthened to enhance its impact in building strong …

Originalist Law Reform, Judicial Departmentalism, And Justice Scalia, Kevin C. Walsh

Scholarly Articles

Drawing on examples from Justice Antonin Scalia's jurisprudence, this Essay uses the perspective of judicial departmentalism to examine the nature and limits of two partially successful originalist law reforms in recent years. It then shifts to an examination of how a faulty conception of judicial supremacy drove a few nonoriginalist changes in the law that Scalia properly dissented from. Despite the mistaken judicial supremacy motivating these decisions, a closer look reveals them to be backhanded tributes to judicial departmentalism because of the way that the Court had to change jurisdictional and remedial doctrines to accomplish its substantive-law alterations. The Essay …

Religious Accommodation, Religious Tradition, And Political Polarization, Marc O. Degirolami

Scholarly Articles

A religious accommodation is an exemption from compliance with the law for some but not for others. One might therefore suppose that before granting an accommodation, courts would inquire about whether a legal interference with religious belief or practice is truly significant, if only to evaluate whether the risk of political polarization that attends accommodation is worth hazarding. But that is not the case: any assessment of the significance of a religious belief or practice within a claimant's belief system is strictly forbidden.

Two arguments are pressed in support of this view: (1) courts have institutional reasons for acquiescing on …

Enduring Originalism, Kevin C. Walsh, Jeffrey A. Pojanowski

Scholarly Articles

If our law requires originalism in constitutional interpretation, then that would be a good reason to be an originalist. This insight animates what many have begun to call the "positive turn" in originalism. Defenses of originalism in this vein are "positive" in that they are based on the status of the Constitution, and constitutional law, as positive law. This approach shifts focus away from abstract conceptual or normative arguments about interpretation and focuses instead on how we actually understand and apply the Constitution as law. On these grounds, originalism rests on a factual claim about the content of our law: …