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Full-Text Articles in Law

A Bibliography Of Faculty Scholarship, Kathryn J. Dufour Law Library Jul 2022

A Bibliography Of Faculty Scholarship, Kathryn J. Dufour Law Library

Scholarly Articles

The purpose of this bibliography is to record in one place the substantial body of scholarship produced by the current faculty at the Catholic University, Columbus School of Law. From its humble beginnings under the tutelage of founding Dean William Callyhan Robinson, through its adolescent period when, like so many other American law schools, it was trying to define its pedagogical niche, to its eventual merger with the Columbus University Law School in 1954, the law school at Catholic University has always retained a scholarly and remarkably productive faculty. The sheer quantity of writing, the breadth of research and the ...


Brief Of Professor Brandon Hasbrouck As Amicus Curiae In Support Of Appellant: Bell V. Streeval, Brandon Hasbrouck Jun 2022

Brief Of Professor Brandon Hasbrouck As Amicus Curiae In Support Of Appellant: Bell V. Streeval, Brandon Hasbrouck

Scholarly Articles

The core question raised by this case is whether a federal prisoner serving an unconstitutional sentence can be foreclosed from post-conviction habeas relief by the gatekeeping provisions of § 2255. The Constitution answers that question in the negative through the Suspension Clause. “[F]reedom from unlawful restraint [i]s a fundamental precept of liberty,” and the writ of habeas corpus “a vital instrument to secure that freedom.” Boumediene, 553 U.S. at 739. The importance of the common law writ was such that the Framers specified that it could be suspended only in the most exigent circumstances. U.S. Const. art ...


Contractual Stakeholderism, Kishanthi Parella Apr 2022

Contractual Stakeholderism, Kishanthi Parella

Scholarly Articles

In 2019, the Business Roundtable announced its commitment to all corporate stakeholders—consumers, employees, suppliers, and communities—and not just shareholders. This announcement has reawakened an old debate over corporate social responsibility. Stakeholderism advocates argue that corporate leaders must consider the interests of the various stakeholders impacted by corporate decision-making. Stakeholderism critics challenge this view, expressing concerns that stakeholderism will magnify managerial agency costs, chill regulation, risk inauthenticity, and lead to impractical solutions.

This Article proposes “contractual stakeholderism” to operationalize stakeholderism in accordance with the views of its advocates but in a way that is attentive to the concerns of ...


The Visualities And Aesthetics Of Prosecuting Aged Defendants, Mark Drumbl, Caroline Fournet Jan 2022

The Visualities And Aesthetics Of Prosecuting Aged Defendants, Mark Drumbl, Caroline Fournet

Scholarly Articles

The prosecution—whether domestic or international—of international crimes and atrocities may implicate extremely aged defendants. Much has been written about the legalisms that inhere (or not) in trying these barely alive individuals. Very little however has been written about the aesthetics the barely alive encrust into the architecture of courtrooms, the optics these defendants suffuse into the trial process, and the expressive value of punishing them. This is what we seek to do in this project.


Arthur A. Thomas: A Hero Of A Valet, Todd C. Peppers Jan 2022

Arthur A. Thomas: A Hero Of A Valet, Todd C. Peppers

Scholarly Articles

During his time on the Supreme Court, Justice Oliver Wendell Holmes Jr. was the beneficiary of adulation from his legal secretaries (today we refer to them as law clerks) and young legal scholars, like Felix Frankfurter and Harold Laski. While the Justice basked in the warm glow of their hero worship, he was quick to point out to them that “no man is a hero to his valet.” The phrase was not original to Holmes, although the expression sounds like it sprang from his clever mind. The underlying meaning is simple—the servant tending daily to his employer sees flaws ...


Who Can Protect Black Protest?, Brandon Hasbrouck Jan 2022

Who Can Protect Black Protest?, Brandon Hasbrouck

Scholarly Articles

Police violence both as the cause of and response to the racial justice protests following George Floyd’s murder called fresh attention to the need for legal remedies to hold police officers accountable. In addition to the well-publicized issue of qualified immunity, the differential regimes for asserting civil rights claims against state and federal agents for constitutional rights violations create a further barrier to relief. Courts have only recognized damages as a remedy for such abuses in limited contexts against federal employees under the Bivens framework. The history of Black protest movements reveals the violent responses police have to such ...


The Antiracist Constitution, Brandon Hasbrouck Jan 2022

The Antiracist Constitution, Brandon Hasbrouck

Scholarly Articles

Our Constitution, as it is and as it has been interpreted by our courts, serves white supremacy. The twin projects of abolition and reconstruction remain incomplete, derailed first by openly hostile institutions, then by the subtler lie that a colorblind Constitution would bring about the end of racism. Yet, in its debut in Supreme Court jurisprudence, colorblind constitutionalism promised that facially discriminatory laws were unnecessary for the perpetuation of white supremacy. That promise has been fulfilled across nearly every field of law as modern white supremacists adopt insidious, facially neutral laws to ensure the oppression of Black people and other ...


Corporate Governance And The Feminization Of Capital, Sarah C. Haan Jan 2022

Corporate Governance And The Feminization Of Capital, Sarah C. Haan

Scholarly Articles

At the start of the twentieth century, women made up a small proportion of shareholders in American publicly traded companies. By 1956, women were the majority of individual shareholders. Although this change in shareholder gender demographics happened gradually, it was evident early in the century: Before the 1929 stock market crash, women shareholders had come to outnumber men at some of America’s largest and most influential corporations, including AT&T, General Electric, and the Pennsylvania Railroad. This Article synthesizes information from a range of historical sources to reveal an overlooked narrative of corporate history—the feminization of capital, or ...


The Chief Justice And The Page: Earl Warren, Charles Bush, And The Promise Of Brown V. Board Of Education, Todd C. Peppers Jan 2022

The Chief Justice And The Page: Earl Warren, Charles Bush, And The Promise Of Brown V. Board Of Education, Todd C. Peppers

Scholarly Articles

In October Term 1954, the Supreme Court heard oral arguments regarding the implementation of the Brown decision. The resulting opinion is commonly referred to as “Brown II.” In his unanimous opinion, Chief Justice Earl Warren ordered local school districts to desegregate their schools “with all deliberate speed.” Supporters of immediate integration were dismayed by the vague language, which ultimately allowed southern states to use a variety of tactics to deliberately evade and resist the Court’s mandate that public schools be desegregated.

What has been forgotten in the discussion of Brown II and the “all deliberate speed” standard is that ...


Governing The Interface Between Natural And Formal Language In Smart Contracts, Joshua A.T. Fairfield, Niloufer Selvadurai Jan 2022

Governing The Interface Between Natural And Formal Language In Smart Contracts, Joshua A.T. Fairfield, Niloufer Selvadurai

Scholarly Articles

Much of the confusion about the proper regulation of smart contracts stems from the fact that both code and law are expressed in language. Natural (human) and formal (computer) languages are profoundly different, however. Natural language in the form of a true legal contract expresses human meaning and expectation. Code simply acts, and when code acts contrary to the understanding of the parties to a contract, courts must have a theoretical and legal basis in order to intervene--which this Article provides.

Present scholarship on the governance of smart contracts centers on logistical problems relating to the effects of automation on ...


Introducing Students To Ethics And Professionalism Challenges In Virtual Communication, Katherine M. Koops, James E. Moliterno, Carol E. Morgan, Carol D. Newman Jan 2022

Introducing Students To Ethics And Professionalism Challenges In Virtual Communication, Katherine M. Koops, James E. Moliterno, Carol E. Morgan, Carol D. Newman

Scholarly Articles

As the practice of law, and the conduct of business generally, focuses increasingly on virtual communication, the ethics and professionalism challenges inherent in email, videoconference, text, and telephone communication continue to evolve. These challenges are particularly prevalent in transactional practice, which involves frequent communication with a variety of parties through a variety of communication channels. Exposing law students to these challenges through exercises and simulations contributes to the continued development of their professional identity as lawyers.

This article presents a variety of exercises that introduce students to client confidentiality, inadvertent disclosure, and other ethical issues that often arise in the ...


Refugees Under Duress: International Law And The Serious Nonpolitical Crime Bar, David Baluarte Jan 2022

Refugees Under Duress: International Law And The Serious Nonpolitical Crime Bar, David Baluarte

Scholarly Articles

Congress intended that the serious nonpolitical crime bar under United States asylum law have the same meaning and scope as the 1F(b) Refugee Convention exclusion clause. The Supreme Court has repeatedly held that it was the intent of Congress to not only replicate the language of the provisions of the Refugee Convention in United States law, but to incorporate the full extent of the meaning of such language and bring the United States into compliance with its treaty obligations. Accordingly, when Congress reproduced exactly the language of the Article 1F(b) exclusion clause in the INA, it intended for ...


Movement Judges, Brandon Hasbrouck Jan 2022

Movement Judges, Brandon Hasbrouck

Scholarly Articles

Judges matter. The opinions of a few impact the lives of many. Judges romanticize their own impartiality, but apathy in the face of systems of oppression favors the status quo and clears the way for conservative agendas to take root. The lifetime appointments of federal judges, the deliberate weaponization of the bench by reactionary opponents of the New Deal and progressive social movements, and the sheer inertia of judicial self-restraint have led to the conservative capture of the courts. By contrast, empathy for the oppressed and downtrodden renders substantive justice possible and leaves room for unsuccessful litigants to accept unfavorable ...


Intellectual Property And Tabletop Games, Christopher B. Seaman, Thuan Tran Jan 2022

Intellectual Property And Tabletop Games, Christopher B. Seaman, Thuan Tran

Scholarly Articles

There is a rich body of literature regarding intellectual property’s (“IP”) “negative spaces”—fields where creation and innovation thrive without significant formal protection from IP law. Scholars have written about innovation in diverse fields despite weak or nonexistent IP rights, such as fashion design, fine cuisine, stand-up comedy, magic tricks, tattoos, and sports plays. Instead, these fields rely on social norms, first- mover advantage, and other (non-IP) legal regimes to promote innovation in the absence of IP protection.

As a comparison to these studies, this Article comprehensively analyzes the role of IP law in facilitating innovation in tabletop gaming ...


“You Keep Using That Word”: Why Privacy Doesn’T Mean What Lawyers Think, Joshua A.T. Fairfield Jan 2022

“You Keep Using That Word”: Why Privacy Doesn’T Mean What Lawyers Think, Joshua A.T. Fairfield

Scholarly Articles

This article explores how the need to define privacy has impeded our ability to protect it in law.

The meaning of “privacy” is notoriously hard to pin down. This article contends that the problem is not with the word “privacy,” but with the act of trying to pin it down. The problem lies with the act of definition itself and is particularly acute when the words in question have deep-seated and longstanding common-language meanings, such as liberty, freedom, dignity, and certainly privacy. If one wishes to determine what words like these actually mean to people, definition is the wrong tool ...


When Police Volunteer To Kill, Alexandra L. Klein Jan 2022

When Police Volunteer To Kill, Alexandra L. Klein

Scholarly Articles

The Supreme Court has upheld the constitutionality of lethal injection, yet states continue to struggle with drug shortages and botched executions. Some states have authorized alternative methods of execution, including the firing squad. Utah, which has consistently carried out firing squad executions throughout its history, relies on police officers from the jurisdiction where the crime took place to volunteer to carry out these executions. This represents a plausible--and probable--method for other states in conducting firing squad executions.

Public and academic discussion of the firing squad has centered on questions of pain and suffering. It has not engaged with the consequences ...


Teaching About Justice By Teaching With Justice: Global Perspectives On Clinical Legal Education And Rebellious Lawyering, Catherine F. Klein, Richard Roe Jan 2022

Teaching About Justice By Teaching With Justice: Global Perspectives On Clinical Legal Education And Rebellious Lawyering, Catherine F. Klein, Richard Roe

Scholarly Articles

Teaching About Justice by Teaching with Justice: Global Perspectives on Clinical Education and Rebellious Lawyering is co-authored by cadre of clinicians from around the world: Catherine F. Klein, Richard Roe, Mizanur Rahman, Dipika Jain, Abhayraj Naik, Natalia Martinuzzi Castilho, Taysa Schiocchet, Sunday Kenechukwu Agwu, Olinda Moyd, Bianca Sukrow, and Christoph König. The piece captures and reflects the content of five presentations at the 2021 Global Alliance for Justice Education (GAJE) biannual gathering, conducted virtually due to the pandemic, with over 450 participants from 45 countries. The piece illuminates many themes and issues in the teaching and practice of transformational justice ...


The “Liberty Of Silence” Challenging State Legislation That Strips Municipalities Of Authority To Remove Confederate Monuments, Roger C. Hartley Jan 2022

The “Liberty Of Silence” Challenging State Legislation That Strips Municipalities Of Authority To Remove Confederate Monuments, Roger C. Hartley

Scholarly Articles

There are roughly 700 Confederate monuments still standing in courthouse lawns, parks, and downtown squares in virtually every city, town, and village throughout the “Old South.” Most of these Confederate monuments are located in states that have enacted legislation that bans the removal of Confederate monuments. Such legislative bans are in effect in Alabama, Georgia, Kentucky Mississippi, North Carolina, South Carolina, and Tennessee. Legislation that bans removal of Confederate monuments from public spaces poses a racial justice issue for millions of residents in these states because it forces political majorities in Southern communities (many constituting majority-minority communities) to host a ...


An Originalist Victory, J. Joel Alicea Jan 2022

An Originalist Victory, J. Joel Alicea

Scholarly Articles

Roe v. Wade and Planned Parenthood v. Casey are no more. Like Plessy v. Ferguson before them, Roe and Casey were constitutionally and morally indefensible from the day they were decided, yet they endured for generations, becoming the foundation of a mass political movement that did all it could to prevent their overruling. Thus, like the overruling of Plessy, the overruling of Roe and Casey was by no means inevitable; it was the result of a half-century of disciplined, persistent, and prudent political, legal, and religious effort. The victory in Dobbs v. Jackson Women’s Health Organization was earned by ...


Why Originalism Is Consistent With Natural Law: A Reply To Critics, J. Joel Alicea Jan 2022

Why Originalism Is Consistent With Natural Law: A Reply To Critics, J. Joel Alicea

Scholarly Articles

Constitutional theorists on the right are engaged in a debate about the moral foundations of originalism, the theory that government officials, including judges, are bound by the original meaning of the Constitution. I recently offered a defense of originalism’s moral authority grounded in the natural-law tradition. Harvard law professor Adrian Vermeule and his sometime co-author, University of Liverpool law professor Conor Casey, recently responded to my draft article, as did another supporter of Vermeule’s theory, lawyer and blogger Pat Smith. In the interest of furthering this important discussion about the moral foundations of originalism, I respectfully offer this ...


Jones V. Mississippi And The Court’S Quiet Burial Of The Miller Trilogy, Cara H. Drinan Jan 2022

Jones V. Mississippi And The Court’S Quiet Burial Of The Miller Trilogy, Cara H. Drinan

Scholarly Articles

In addition to its status as the world's largest jailer, the United States is an extreme outlier in its juvenile justice and sentencing practices. As recently as 2005, the United States permitted juvenile execution, and today the United States is the only nation that allows children to be sentenced to life without parole. In the last fifteen years, in a series of cases known as the Miller trilogy, the Supreme Court had been slowly chipping away at the nation's use of the most extreme juvenile sentences-the death penalty and life without parole. That process came to an abrupt ...


The Common Prosecutor, Melanie D. Wilson Jan 2022

The Common Prosecutor, Melanie D. Wilson

Scholarly Articles

This symposium piece stems from the Loyola University of Chicago Law Journal’s Criminal Justice Symposium and my engagement with a panel of experts discussing wrongful convictions, pleas, and sentencing. The essay focuses on the role of prosecutors and contends that the system will improve only when more law school graduates of every race, religion, gender identity, background, ideology, ability, sexual orientation, and other characteristics serve as prosecutors. We have witnessed the rise of the “progressive prosecutor.” Now, we need to add more “common prosecutors.”

The homogeneity of prosecutors is well known and well documented. For example, as of October ...


Pursuing A Right To Genetic Happiness, George P. Smith Ii Jan 2022

Pursuing A Right To Genetic Happiness, George P. Smith Ii

Scholarly Articles

With the continued expansion of assisted reproductive technology (ART), and society's inability to regulate it, complex medico-legal issues and ethical and social dilemmas are arising. Although the desire to prevent or limit genetic disease by, for example, gene editing and mitochondrial transfer is noble, what has been termed the "customization" of birth, raises the fundamental issue of procreative liberty, and, more specifically, the extent to which the state is obligated to assist in the use of ART which, in turn, validate the quest for genetic happiness. There is a current notion that reproductive freedom includes, within it, a right ...


The Role Of Emotion In Constitutional Theory, J. Joel Alicea Jan 2022

The Role Of Emotion In Constitutional Theory, J. Joel Alicea

Scholarly Articles

Although the role of emotion in law has become a major field of scholarship, there has been very little attention paid to the role of emotion in constitutional theory. This Article seeks to fill that gap by providing an integrated account of the role of emotion within the individual, how emotion affects constitutional culture, and how constitutional culture, properly understood, should affect our evaluation of major constitutional theories.

The Article begins by reconstructing one of the most important and influential accounts of emotion in the philosophical literature: that of Thomas Aquinas. Because Aquinas’s description of the nature of emotion ...


Submission Of Amicus Curiae Observations In The Case Of The Prosecutor V. Dominic Ongwen, Erin Baines, Kamari M. Clarke, Mark A. Drumbl Dec 2021

Submission Of Amicus Curiae Observations In The Case Of The Prosecutor V. Dominic Ongwen, Erin Baines, Kamari M. Clarke, Mark A. Drumbl

Scholarly Articles

The important questions laid out by the Appeals Chamber in this case highlight the need for the proper delineation and interplay between mental illness and criminal responsibility under international law. Specifically, this case represents a watershed moment for the Appeals Chamber to set a framework for adjudicating mental illness in the context of collectivized child abuse and trauma. This is especially true for former child soldiers who occupy both a victim and alleged perpetrator status.


The Soft-Shoe And Shuffle Of Law School Hiring Committee Practices, Carliss N. Chatman, Najarian R. Peters May 2021

The Soft-Shoe And Shuffle Of Law School Hiring Committee Practices, Carliss N. Chatman, Najarian R. Peters

Scholarly Articles

It is in the spirit of Ida B. Wells that we seek to turn the light upon the systemic racism of hiring practices. We believe these practices are indicators of the systemic failures on campuses and in workplaces that prevent them from being antiracist. We seek to use this Essay as a “tool for exposing, analyzing, and challenging the majoritarian stories of racial privilege.”

Our specifc intention is to recognize the largely performative nature of claiming to be committed to an idea while substantively and concretely ensuring the opposite. This Essay is written with specific experiences, patterns, and practices in ...


Cancelling Justice? The Case Of James Clark Mcreynolds, Todd C. Peppers Jan 2021

Cancelling Justice? The Case Of James Clark Mcreynolds, Todd C. Peppers

Scholarly Articles

Over the last several years, there has been a vigorous debate as to whether monuments and memorials of Confederate leaders and controversial historical figures should be purged from the public square. These conversations have included former Supreme Court justices and have led to the removal of multiple statues of former Chief Justice Roger Taney, author of the infamous “Dred Scott” decision. Drawing on the arguments mounted for and against the removal of statues, this article explores the decision of a small liberal arts college to strip the name of former Supreme Court Justice James Clark McReynolds from a campus building ...


Noncompetes And Other Post-Employment Restraints On Competition: Empirical Evidence From Trade Secret Litigation, Christopher B. Seaman Jan 2021

Noncompetes And Other Post-Employment Restraints On Competition: Empirical Evidence From Trade Secret Litigation, Christopher B. Seaman

Scholarly Articles

Noncompete clauses in employment agreements are both common and controversial. An estimated twenty-eight million Americans—nearly twenty percent of the U.S. workforce—are currently bound by a noncompete. The traditional view that noncompete agreements can facilitate increased productivity by encouraging employers to invest in employee training has been challenged by numerous legal and economics scholars in recent years, who contend noncompetes hinder employment options for skilled workers and limit information spillovers, which are both vital drivers of innovation. Based on these claims, several states have recently limited the enforcement of noncompetes, and legislation is pending at the federal level ...


Settled Law, G. Alexander Nunn, Alan M. Trammell Jan 2021

Settled Law, G. Alexander Nunn, Alan M. Trammell

Scholarly Articles

“Settled law” appears frequently in judicial opinions—sometimes to refer to binding precedent, sometimes to denote precedent that has acquired a more mystical permanence, and sometimes as a substantive part of legal doctrine. During judicial confirmation hearings, the term is bandied about as Senators, advocacy groups, and nominees discuss judicial philosophy and deeper ideological commitments. But its varying and often contradictory uses have given rise to a concern that settled law is simply a repository for hopelessly disparate ideas. Without definitional precision, it risks becoming nothing more than empty jargon.

We contend that settled law is actually a meaningful concept ...


#Audited: Social Media And Tax Enforcement, Michelle Lyon Drumbl Jan 2021

#Audited: Social Media And Tax Enforcement, Michelle Lyon Drumbl

Scholarly Articles

With limited resources and a diminished budget, it is not surprising that the Internal Revenue Service would seek new tools to maximize its enforcement efficiency. Automation and technology provide new opportunities for the IRS, and in turn, present new concerns for taxpayers. In December 2018, the IRS signaled its interest in a tool to access publicly available social media profiles of individuals in order to “expedite IRS case resolution for existing compliance cases.” This has important implications for taxpayer privacy.

Moreover, the use of social media in tax enforcement may pose a particular harm to an especially vulnerable population: low-income ...