Law Commons^™

Child Support: Shifting The Financial Burden In Low-Income Families, Stacy Brustin

Scholarly Articles

No abstract provided.

Stare Decisis In An Originalist Congress, Joel Alicea

Scholarly Articles

The concern here is with the normative status of legislative precedents for an originalist Congress: Should an originalist legislator give any weight to previous legislative constitutional judgments? This Note does not attempt to articulate the specific criteria an originalist legislator (or judge, for that matter) should use in deciding whether to retain a particular precedent. That question is a distinct inquiry for another day. Part I briefly reviews the literature on originalist extrajudicial constitutional interpretation as well as the scholarship on legislative stare decisis. Part II examines five common arguments for adherence to precedent in a judicial setting and analyzes …

Gingrich, Desegregation, And Judicial Supremacy, Joel Alicea

Scholarly Articles

Those who oppose judicial supremacy follow in the footsteps of Abraham Lincoln himself.

Defamation In Good Faith: An Argument For Restating The Defense Of Qualified Privilege, A.G. Harmon

Scholarly Articles

Since the 1964 case of New York Times v. Sullivan, the standard for proving defamation has often proven insurmountable to public figure plaintiffs who claim their reputations have been hurt through libel or slander. But, the standard can prove equally insurmountable to "private figure" plaintiffs when a qualified, or "conditional," privilege applies. Such privileges, intended to further the social policy of candor on certain proscribed occasions, can be claimed regarding otherwise questionable conversations as long as the dialogue is made: 1) in good faith; 2) about a subject in which the speaker has an interest or duty; 3) within a …

The Plural Of Anecdote Is Not Data: Teaching Law Students Basic Survey Methodology To Improve Access To Justice In Unemployment Insurance Appeals, Faith Mullen

Scholarly Articles

This project is part of Professor Mullen's larger Bellow Scholars research agenda, which concerns access-to-justice issues at the OAH more generally. This project tried to ascertain whether self-represented parties (both employees3 and employers) in unemployment insurance (UI) appeals perceive a need for more legal assistance. For three weeks in November of 2009, law students from The Catholic University of America administered a survey that asked self-represented parties in UI appeals whether, based on their experiences in the hearing, they perceived a need for more legal assistance and whether there were aspects of the hearings that they found particularly challenging. Initially …

The Technological Edge, Elizabeth I. Winston

Scholarly Articles

To grant a patent to natural phenomena hinders innovation, taking back from the public that which the public has a right to possess. To deny a patent to man’s manufacture undercuts the fundamental bargain of the patent system. All inventions, at their core, may be deemed natural, rendering it difficult to distinguish between man’s manufacture and natural phenomena. Determining whether the innovative aspect of the product is a technological one, rather than a natural one, can clarify whether the patent grant promotes the progress of science and the useful arts. The higher the level of skill in the art required …

Patent Law As Public Law, Megan M. La Belle

Scholarly Articles

Historically, patent litigation has been viewed and treated primarily as private law litigation, as opposed to public law litigation. This paradigm has begun to shift, however, as various stakeholders have come to acknowledge the profound impact that the patent system – and particularly invalid patents – have on the public at large. Yet, in order for a public law regime to succeed, there must be a host of enforcement mechanisms available, including the opportunity for privately-initiated litigation.

Public interest organizations have played a prominent role in the enforcement of certain public rights, such as free speech, equal protection, and environmental …

Chief Justice Roberts And The Changing Conservative Legal Movement, Joel Alicea

Scholarly Articles

At the sprightly age of 57 and less than seven years into his term as chief justice, John Roberts looks like a man whom time has left behind. The reaction among legal conservatives to the Roberts opinion in National Federation of Independent Businesses v. Sebelius (the healthcare case) has been brutal. Many have accused the chief justice of exchanging the black robes of the jurist for the trappings of the politician. The chief justice is said to have “blinked” and “failed [his] most basic responsibility.” Noted originalist scholar Mike Rappaport strongly implied that Roberts is “both a knave and a …

Response: There Is No Common Law Of Severability, Kevin C. Walsh

Scholarly Articles

In this solicited response to The New General Common Law of Severability, I first offer an interpretation of Ayotte and subsequent Supreme Court decisions as continuous with existing doctrine instead of a departure from it. I then suggest that much of Scoville’s evidence for a federalization of severability doctrine is better viewed as evidence of doctrinal looseness rather than of doctrinal change. I conclude by returning to the lessons of severability’s doctrinal history, suggesting that the prehistory of severability doctrine may supply a better guide for how courts should deal with problems of partial unconstitutionality in the future.

The Conservation Easement Tax Expenditure: In Search Of Conservation Value, Roger Colinvaux

Scholarly Articles

Federal tax law has long provided a tax benefit for charitable contributions of easements for conservation purposes. A fundamental problem with this conservation easement tax expenditure is that the measure for the tax benefit – lost economic development value – is erroneous. Use of such an erroneous measure obscures the conservation benefits of the program by focusing attention and resources on divining a largely extraneous and unhelpful number. Further, to a considerable extent, the easement program is reflexively justified and understood based on this false measure, as if it represented the conservation value of the program. The Article argues that, …

The Missed Opportunity Of United States V. Jones: Commercial Erosion Of Fourth Amendment Protection In A Post Google Earth World, Mary Graw Leary

Scholarly Articles

The Fourth Amendment protects people from unreasonable searches and seizures by the government. These protections, therefore, are only triggered when the government engages is a “search” or “seizure.” For decades, the Court defined “search” as a government examination of an area where one has a “reasonable expectation of privacy.” Such an expectation requires both that the individual demonstrate a subjective expectation of privacy and that the expectation is one society finds reasonable. In 1974, Anthony Amsterdam prophesized the unworkability of this test, warning of a day that the government would circumvent it my merely announcing 24 hour surveillance. Similarly, the …

First-Year Law Faculty Are Uniquely Poised To Mentor Stellar Students For Elbow Employment With Judges, Laurie A. Lewis

Scholarly Articles

Judicial clerkships are in high demand for new law graduates. In this tight job market, applicants must possess outstanding applications. Applicants must be not only practice-ready, but also clerkship-ready. They must be people-oriented, with superb oral communication skills. They must be outstanding researchers and writers. And they must have a passion for discovering truth and promoting justice.

Students should embark on a clerkship-ready path during their first year of law school. First-year faculty members are uniquely poised to identify students with skills and traits inherent to successful clerks. Such students demonstrate intellectual excellence, superior work habits, and an ability to …

Teaching Social Justice Lawyering: Systematically Including Community Legal Education In Law School Clinics, Margaret Martin Barry, A. Rachel Karn, Margaret E. Johnson, Catherine F. Klein, Lisa Vollendorf Martin

Scholarly Articles

There is a body of literature on clinical legal theory that urges a focus in clinics beyond the single client to an explicit teaching of social justice lawyering. This Article adds to this emerging body of work by discussing the valuable role community legal education plays as a vehicle for teaching skills and values essential to single client representation and social justice lawyering.

The Article examines the theoretical underpinnings of clinical legal education, community organizing and community education and how they influenced the authors’ design and implementation of community legal education within their clinics. It then discusses two projects designed …

The Future Of Internet-Related Personal Jurisdiction After Goodyear Dunlap Tires V. Brown And J. Mcintyre V. Nicastro, Megan M. La Belle

Scholarly Articles

For the past two decades, courts have struggled with the question of how Internet-related contacts should be treated in the personal jurisdiction analysis. Some courts have utilized the traditional minimum contacts framework of International Shoe v. Washington , while others have devised new tests to accommodate this technological evolution. So when the US Supreme Court granted certiorari in two personal jurisdiction cases last term— Goodyear Dunlap Tires v. Brown and J. McIntyre v. Nicastro — many believed these unsettled questions of Internet related personal jurisdiction would finally be resolved. Disappointingly for litigants, lower courts, and academics, however, Goodyear and McIntyre …

Externship Demographics Across Two Decades With Lessons For Future Surveys, J.P. "Sandy" Ogilvy, Sudeb Basu

Scholarly Articles

Sudeb Basu (J.D., Catholic University, 2011) and Professor J.P. “Sandy” Ogilvy (Catholic University) report on the results of a 2007-2009 national survey of externship programs at American law schools and compare many of the data points to previous surveys of externship programs, the 2007-2008 CSALE survey, and some ABA/LSAC data, to chart the growth and increasing sophistication and complexity of the pedagogy associated with legal externships. Some of the data discussed include limits on the number of externship credits or externship courses, student involvement in externships, the distribution of credits awarded for externship courses, the average number of hours of …

Family Law's Challenge To Religious Liberty, Raymond C. O'Brien

Scholarly Articles

This Article argues that challenges made to family law structures have provoked a significant reaction from persons and religious organizations advocating a distinctive worldview based on religious and historical values. Additionally, as family law changes from being a product of a religioushistorical worldview to being a product of private-ordering, the religious liberty of worldview adherents has been challenged. The struggle is apparent in the debates during the 2012 presidential election and is evidenced in government mandates that include, among other requirements, that employersincluding religious organizations-provide insurance coverage for employees that include contraception. Although many aspects of family law have been …

The Constitutional Right Not To Kill, Mark L. Rienzi

Scholarly Articles

Federal and state governments participate in and/or permit a variety of different types of killings. These include military operations, capital punishment, assisted suicide, abortion and self-defense or defense of others. In a pluralistic society, it is no surprise that there will be some members of the population who refuse to participate in some or all of these types of killings. The question of how governments should treat such refusals is older than the Republic itself. Since colonial times, the answer to this question has been driven largely by statutory protections, with the Constitution playing a smaller role, particularly since the …

Autonomy-Mastery-Purpose: Structuring Clinical Courses To Enhance These Critical Goals, Leah Wortham, Catherine F. Klein, Beryl Blaustone

Scholarly Articles

Part I describes the difference in extrinsic and intrinsic motivation and reviews the negative effects of business and educational models assuming extrinsic motivation to be most effective rather than seeking to stimulate intrinsic motivation. Part II describes the Carnegie Foundation's Preparation for the Professions project's call for law schools to focus on law students' sense of identity and purpose as part of their professional education, as well as noting the similar goal that students learn "how to be" as articulated by the Tuning Project of the Bologna process regarding higher education in Europe. Part III provides basics on the theory …

The Political Speech Of Charities In The Face Of Citizens United: A Defense Of Prohibition, Roger Colinvaux

Scholarly Articles

The Supreme Court’s decision in Citizens United v. Federal Election Commission makes a Supreme Court challenge to the tax law rule that prohibits charities from involvement in political activities more likely, and a reexamination of the political speech of charities necessary. Part I of the Article surveys the history of the political activities prohibition in order to emphasize that it was not a reactionary policy but quite considered, and that there are strong State interests supporting it, including protection of the definition of charity from further dilution. Part II of the Article analyzes Citizens United in detail and argues that …

Graham On The Ground, Cara H. Drinan

Scholarly Articles

In Graham v. Florida, the U.S. Supreme Court held that it is unconstitutional to sentence a non-homicide juvenile offender to life in prison without parole. While states need not guarantee release to these juvenile offenders, they cannot foreclose such an outcome at the sentencing phase. Scholars have identified several long-term ramifications of Graham, including its likely influence on juvenile sentencing practices and on retributive justice theory. As yet unexamined, though, are the important and thorny legal questions that Graham raises for state judges and lawmakers in the very short term. To whom does the Graham decision apply? What is the …

Clemency In A Time Of Crisis, Cara H. Drinan

Scholarly Articles

At the state level, the power to pardon or commute a criminal sentence — that is, to grant clemency — is vested in either the Governor, an executive clemency board, or some combination thereof. Until very recently, clemency grants were a consistent feature of our criminal justice system. In the last four decades, though, state clemency grants have declined significantly; in some states, clemency seems to have disappeared altogether. In this Article, I contend that executive clemency should be revived at the state level in response to ongoing systemic criminal justice failings. Part I of this Article describes clemency at …

Lafler And Frye: Good News For Public Defense Litigation, Cara H. Drinan

Scholarly Articles

In Missouri v. Frye and Lafler v. Cooper, the Supreme Court confirmed that the Sixth Amendment right to counsel applies to the plea negotiation process and held that prejudicial error can flow from ineffective plea advice. The defense community has applauded these decisions for recognizing the pivotal role that guilty pleas play in our criminal justice system and for requiring a minimum level of efficacy in plea lawyering. In this brief essay, I suggest that Frye and Lafler are victories for the defense community in yet another way. The decisions reflect judicial realism, and in this respect, they are especially …

Electronic Privacy In The Government Workplace And The City Of Ontario, California V. Quon: The Supreme Court Brought Forth A Mouse, Clifford S. Fishman

Scholarly Articles

This Article begins with a very brief overview of fundamental Fourth Amendment principles and federal statutory regulation of electronic surveillance of communications. Part II consists of a detailed look at O'Connor v. Ortega, and the uncertainties the decision created in the law. Part III examines City of Ontario v. Quon, and analyzes what the Court did decide. Part IV examines the issues in Quon that the Court did not decide. Part V states my conclusions as to where the decision leaves the law. The Article ends with an "user's guide" to Quon, which outlines how litigants and judges should …

Judicial Challenges To Mandatory Minimum Sentences: A New Frontier In Debate Over Child Pornography Sentencing?, Mary Graw Leary

Scholarly Articles

Over the past decade, federal sentencing issues concerning child pornography have produced considerable legal debate, much of it focused on the application of federal sentencing guidelines as set forth by the United States Sentencing Commission (U.S.S.C.). Many judges have opined that the factors used to calculate the adjusted offense level for some child pornography offenses may be out of date, impracticable, and/or in conflict with 18 U.S.C. 3553(a), which requires, among other things, “just punishments.” Particular concerns have been expressed that strict application of the sentencing guidelines can produce results in which possessors of child pornography (i.e. those who commit …

Against Theories Of Punishment: The Thought Of Sir James Fitzjames Stephen, Marc O. Degirolami

Scholarly Articles

This paper reflects critically on what is the near-universal contemporary method of conceptualizing the tasks of the scholar of criminal punishment. It does so by the unusual route of considering the thought of Sir James Fitzjames Stephen, a towering figure in English law and political theory, one of its foremost historians of criminal law, and a prominent public intellectual of the late Victorian period. Notwithstanding Stephen's stature, there has as yet been no sustained effort to understand his views of criminal punishment. This article attempts to remedy this deficit. But its aims are not exclusively historical. Indeed, understanding Stephen's ideas …

Forty Years Of Originalism, Joel Alicea

Scholarly Articles

While Professor Noah Feldman has underlined the role Justice Hugo Black played in the development of modern originalism, it was not until Bork's article in 197 1 that the modern originalist movement took flight. [...]having just passed the 40th anniversary of that landmark essay, it is appropriate that we survey how modern originalism began, how it has changed, and what challenges lie ahead. According to Bork, judicial review by the Warren Court was founded on a flawed premise: that courts must "'make fundamental value choices' in order to 'protect our constitutional rights and liberties.'" But if the Constitution already makes …

The Ghost That Slayed The Mandate, Kevin C. Walsh

Scholarly Articles

Virginia v. Sebelius is a federal lawsuit in which Virginia has challenged President Obama's signature legislative initiative of health care reform. Virginia has sought declaratory and injunctive relief to vindicate a state statute declaring that no Virginia resident shall be required to buy health insurance. To defend this state law from the preemptive effect of federal law, Virginia has contended that the federal legislation's individual mandate to buy health insurance is unconstitutional. Virginia's lawsuit has been one of the most closely followed and politically salient federal cases in recent times. Yet the very features of the case that have contributed …

The Anti-Injunction Act, Congressional Inactivity, And Pre-Enforcement Challenges To § 5000a Of The Tax Code, Kevin C. Walsh

Scholarly Articles

Section 5000A of the Tax Code is one of the most controversial provisions of federal law currently on the books. It is the minimum essential coverage provision of the Patient Protection and Affordable Care Act ("ACA" or "Act")-a provision more popularly known as the individual mandate. Opponents challenged this provision immediately upon its enactment on March 23, 2010. The Supreme Court is poised to hear arguments about its constitutionality in one of these challenges, just over two years later.