Law Commons^™

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 …

Delegated Corporate Voting And The Deliberative Franchise, Sarah C. Haan

Scholarly Articles

Starting in the 1930s with the earliest version of the proxy rules, the Securities and Exchange Commission (SEC) has gradually increased the proportion of “instructed” votes on the shareholder’s proxy card until, for the first time in 2022, it required a fully instructed proxy card. This evolution effectively shifted the exercise of the shareholder’s vote from the shareholders’ meeting to the vote delegation that occurs when the share-holder fills out the proxy card. The point in the electoral process when the binding voting choice is communicated is now the execution of the proxy card (assuming the shareholder completes the card …

Unshielded: How The Police Can Become Touchable, Brandon Hasbrouck

Scholarly Articles

This Review proceeds in three Parts. First, Part I examines Shielded’s text, highlighting Schwartz’s analysis of the problem of unaccountable police, the many barriers to holding police accountable, and her proposed solutions. Part II then critically examines Schwartz’s work, examining pieces of the problem she left undiscussed and the relative shortcomings of her discussion of possible solutions. Finally, Part III takes an abolitionist approach, delving into potential nonreformist reforms and the solution of full abolition, as well as examining the most significant objection to abolitionist approaches: the problem of violence.

1983, Brandon Hasbrouck

Scholarly Articles

This Piece embraces a fictional narrative to illustrate deep flaws in our legal system. It borrows its basic structure and a few choice lines from George Orwell’s classic novel Nineteen Eighty-Four. Like Orwell’s novel, it is set in the not-too-distant future to comment on problems already emerging in the present. The footnotes largely provide examples of some of those problems and how courts have treated them in a constitutional law context. The title (itself quite close to Orwell’s own title) is a reference to our chief civil rights statute, while the story deals with a critical threat to that …

Against Algorithmic Auer Deference, Chad Squitieri

Scholarly Articles

Smart contracts (i.e., electronic agreements written in computer code) can resolve contractual disputes instantaneously, without resorting to court. For workers and consumers—whose lack of bargaining power often requires them to accept pre-drafted contracts on a take-it-or-leave-it basis—reducing the role that courts play in resolving contractual disputes can be problematic. While courts could deploy traditional interpretive doctrines (e.g., contra proferentem) to interpret vague contract language against the drafter’s interests, smart contracts can be programmed to interpret contract language in the drafting party’s favor. Because the drafting party knows that they will have the ability to interpret vague language in their own …

Breach Of Faith: The Special Problem Of Osha Performance Standards, Marshall J. Breger, Arthur G. Sapper

Scholarly Articles

This Article focuses on a special problem with performance standards - that their performance criteria are often so subjective as to deny regulated persons a clear idea of what is required. It begins with a discussion of specification and performance standards in American regulatory history. It further discusses attempts by Congress and others to, therefore, require that performance criteria be “objective.” The Article then sets out a case study of how congressional attempts to require “objective” performance criteria have fared. It examines in depth whether one agency, the Occupational Safety and Health Administration (OSHA), has complied with that special requirement …

How A “Superstar” Ceo Exposes The Necessity For Third Party D&O Insurance, Angela N. Aneiros, Karen Woody

Scholarly Articles

he influence that “superstar” CEOs have over a company’s board of directors can be alarming. Among other things, Elon’s ability to skirt personal liability for seemingly obvious breaches of duty has raised concerns within the realm of corporate governance and corporate regulation. While much has been written on Elon’s influence on Tesla’s board of directors, one area of the law that often gets overlooked that has exacerbated Elon’s corporate governance issues, is that of directors and officers (D&O) liability insurance. While personally insuring board members seems like a very "Elon" move, it could have broader implications beyond Elon. Are “superstar” …

Beyond Trade Secrecy: Confidentiality Agreements That Act Like Noncompetes, Camilla A. Hrdy, Christopher B. Seaman

Scholarly Articles

There is a substantial literature on noncompete agreements and their adverse impact on employee mobility and innovation. But a far more common restraint in employment contracts has been underexplored: confidentiality agreements, sometimes called nondisclosure agreements (NDAs). A confidentiality agreement is not a blanket prohibition on competition. Rather, it is simply a promise not to use or disclose specific information. Confidentiality agreements encompass trade secrets, as defined by state and federal laws, but confidentiality agreements almost always go beyond trade secrecy, encompassing any information the employer imparted to the employee in confidence.

Despite widespread use, confidentiality agreements have received little attention. …

The Post-Ongwen Case Period And The Reconciliation Process In Northern Uganda: Local Communities As A Site Of Knowledge, Christelle Molima Bameka

Scholarly Articles

By providing victims with more space in the Ongwen case, the International Criminal Court (icc) has significantly contributed to the healing of the trauma and community reconciliation in northern Uganda. That said, this court has also raised issues that could affect local efforts to achieve peace, namely the positioning of victims of child soldiers vis-à-vis criminal child soldiers. Drawing on qualitative data collected through focus group discussions with some community members from locations under investigation by the icc, this sociolegal study examines the victims’ narratives about child soldiers and the different ideas of human rights that emerge. Then, it explores …

Children's Right To Access Potentially Critical Learning: Liberating Youth From Propagation Of Structural Injustice, Melina Constantine Bell

Scholarly Articles

Over the past two years, U.S. states have passed educational gag orders (“EGOs”) that prohibit teaching about antiracism and LGBTQ+ identities. EGOs are destructive in at least two ways. First, they violate children’s right to access information that is potentially critical for their individual well-being. Second, they interfere with cultivating mutual respect in a pluralistic society, which serves children’s present and future wellbeing interests. In this article, I aim to demonstrate the harms that EGOs inflict, and how revising the legal framework governing children’s rights in the United States can increase both children’s and adults’ well-being. That revision entails the …

Tax Enforcement At The Intersection Of Social Welfare And Vulnerable Populations, Michelle Lyon Drumbl

Scholarly Articles

This Essay engages with Professor Bernadette Atuahene’s theory of stategraft in the context of tax administration and the role that the Internal Revenue Service (IRS) plays in implementing certain social welfare benefits, including the Earned Income Tax Credit (EITC). Specifically, it considers whether the IRS’s denials of the EITC to those who might otherwise be eligible and entitled to it constitutes a wrongful taking by the state or a violation of basic human rights. While this Essay concludes that denials of the EITC generally do not fit within Atuahene’s definition of stategraft, it highlights two particularly problematic concerns with modern …

Freedom To Give, Devise, And Bequeath, Raymond C. O'Brien

Scholarly Articles

The ability to freely give, devise, or bequeath property is commonly thwarted by persons granted standing to contest formalities and intentionalities of wills, tortious interference with an expectancy, and expanding concern over intervivos gifts and trusts due to increasing elder financial abuse. Nonetheless, there is an expanding class of older, wealthy, and independent-minded donors who seek an effective means by which they may give their wealth to whomever they wish and bypass expensive legal fees, protracted litigation, loss of privacy, and the emotional drama of court proceedings. This Article offers a suggestion of how to restrict the possibility of contest …

A Critique Of Guardianship Theory From The Perspective Of Catholic Thought: The Tension Between The Duty To Protect And Preservation Of Legal Autonomy, Lucia A. Silecchia

Scholarly Articles

In recent times, guardianship law has been gaining much public attention – for a variety of reasons. With a steadily aging domestic and international demographic, an increasing number of people contemplate how they will be cared for if they lose capacity. A new variety of alternatives to guardianship have been adopted by states to allow for “supported“ decision- making in numerous ways, while various forms of limited guardianship have emerged as alternatives to the traditional “one size fits all” model of plenary guardianship prevalent in the past. In addition, some advocate abolishing guardianships entirely, believing them to be an affront …

From Natchitoches To Nuremberg: The Life Of Legal Pioneer Lyria Dickason, Todd C. Peppers

Scholarly Articles

Lyria was one of a small handful of women who graduated from a Louisiana law school in the 1930’s. Despite the employment barriers facing female attorneys, she went on to become one of the first female law clerks in both the federal and state judiciary. To date, Lyria’s story has not been told. I have recently discovered, however, that Lyria’s children and grandchildren preserved her letters to her family. They are a treasure trove of information about a woman whose career took her from rural Louisiana to Louisiana’s highest court as well as the post-war ruins of Nazi Germany. The …

Place-Based Versus Practice-Based Norms For American Lawyers: "It's The End Of The World As We Know It (And I Feel Fine)", James E. Moliterno

Scholarly Articles

This Article acknowledges the growing trend toward practice-based lawyer norms, points out how it allows interaction between the existing place-based norms and the new practice-based norms, and compares this movement with the existing regulatory conditions outside the US. If there is movement from the world as we know it (place-based norms) to a world as it may come to be (practice-based norms), is the change tragic, inevitable, risky, in line with the rest of the global legal profession, or all of the above and more? Specifically, how would such an evolution affect the core duty of lawyer-client confidentiality?

Democratizing Abolition, Brandon Hasbrouck

Scholarly Articles

When abolitionists discuss remedies for past and present injustices, they are frequently met with apparently pragmatic objections to the viability of such bold remedies in U.S. legislatures and courts held captive by reactionary forces. Previous movements have seen their lesser reforms dashed by the white supremacist capitalist order that retains its grip on power in America. While such objectors contend that abolitionists should not ask for so much justice, abolitionists should in fact demand significantly more.

Remedying our country’s history of subordination will not be complete without establishing abolition democracy. While our classical conception of a liberal republic asks us …

Property And Moral Responsibilities: Some Reflections On Modern Catholic Social Theory, Lucia A. Silecchia

Scholarly Articles

Professor Eric Claeys’s forthcoming book, Natural Property Rights, offers a deep perspective on property rights principles. However, while the law tends to focus—as I believe it must—on property rights, rights are inextricably intertwined with duties or responsibilities. The natural rights framework for property is, as Claeys says, “good enough for government work.” It reflects a principled way for the government to allocate property rights and use the law to protect them.

However, it is necessary to look beyond what is desirable for government to protect through law. Other sources propose parameters for reasoned use of property with an emphasis on …

Common Sense Or Sensibility: Vaccine Hesitancy, Parens Patriae, And The Common Good, George P. Smith Ii

Scholarly Articles

Contending with national emergencies that develop into transnational catastrophes gives rise inevitably to concerns raised by libertarians and utilitarians over the extent to which the government — state, local, and federal — can restrict or redirect personal conduct to contain, if not resolve, any existing emergency condition. Using its parens patriae powers to protect the common good — especially the communal benefits of health and safety — government must endeavor to establish health care policies, and here, mandate vaccinations to combat the COVID-19 pathogen, against the benefits that are accruing to the general public. The conclusion drawn from this Article …

Proposing A Model Antilapse Clause, Raymond C. O'Brien

Scholarly Articles

The complexity of state antilapse statutes exacerbates the task of many estate planners seeking to give prudent expression to the postmortem wishes of a client. These statutes vary as to which predeceasing beneficiaries they should apply, who should be the substitute takers to benefit instead of these lapsed beneficiaries, and how to treat beneficiaries who are treated as predeceasing because of renunciation agreements, final decrees of divorce, or, when the beneficiary kills, exploits, or abuses the one from whom the beneficiary would take. Within the modern statutory framework, there exists an abundant array of testamentary devices by which a transferor …

Thoughts On Law Clerk Diversity And Influence, Todd C. Peppers

Scholarly Articles

It is my great good fortune to have been asked to comment on the remarkable Article Law Clerk Selection and Diversity: Insights from Fifty Sitting Judges of the Federal Courts of Appeals by Judge Jeremy D. Fogel, Professor Mary S. Hoopes, and Justice Goodwin Liu. Drawing on a rich vein of data gathered pursuant to a carefully crafted research design and extensive interviews, the authors provide the most detailed account to date regarding the selection criteria used by federal appeals court judges to select their law clerks. The authors pay special attention to the role that diversity plays in picking …

Making Virtual Things, Joshua A.T. Fairfield

Scholarly Articles

People value virtual things—such as NFTs—because such assets trigger and satisfy deep-seated narratives of property and ownership. The cause of the recent series of failures to regulate virtual assets, and the resulting crashes, has been a failure to take seriously the ways people perceive and use the assets. Current legal frameworks fail to support buyers’ and users’ expectations of ownership in virtual things they purchase.

Making virtual things is a matter of social construction of value. Virtual things, like real-world things, have value because a community values them for a purpose. It therefore makes no sense to discount how and …

Speculative Immigration Policy, Matthew Boaz

Scholarly Articles

This Article considers how speculative fiction was wielded by the Trump administration to implement destructive U.S. immigration policy. It analyzes the thematic elements from a particular apocalyptic novel, traces those themes through actual policy implemented by the president, and considers the harm effected by such policies. This Article proposes that the harmful outcomes are not due to the use of speculative fiction, but rather the failure to consider the speculative voices of those who have been historically marginalized within the United States. This Article argues that alternative speculative visions could serve as a platform for radical imagination about future U.S. …

Pandemic As Transboundary Harm: Lessons From The Trail Smelter Arbitration, Russell A. Miller

Scholarly Articles

The COVID-19 pandemic has caused incalculable harm around the world. The fact that this immense harm can be traced back to a localized outbreak in or near Wuhan, China, raises questions about the responsibility China might bear for the pandemic under public international law. Famously applied in the seminal Trail Smelter Arbitration (1938/1941), the Transboundary Harm Principle provides that no state can use or allow the use of its territory in a manner that causes significant harm in the territory of other states. This article does not intend to tap into the unseemly, xenophobic spirit that animates much of the …

Allow Me To Transform: A Black Guy’S Guide To A New Constitution, Brandon Hasbrouck

Scholarly Articles

Elie Mystal’s Allow Me to Retort: A Black Guy’s Guide to the Constitution works within the tradition of lay synopses of constitutional law, filling a gap among those that came before. Some works have provided nonlawyers with an explicitly Black perspective on major issues in modern civil rights, while others have provided an introduction to constitutional law as a field. Mystal broadens the focus and audience, illuminating constitutional issues with his trademark humor and his life experience as a Black man in America. He creates a comprehensive overview for lay readers, emphasizing the experiences and needs of Black men. The …

Teaching Slavery In Commercial Law, Carliss N. Chatman

Scholarly Articles

Public status shapes private ordering. Personhood status, conferred or acknowledged by the state, determines whether one is a party to or the object of a contract. For much of our nation’s history, the law deemed all persons of African descent to have a limited status, if given personhood at all. The property and partial personhood status of African-Americans, combined with standards developed to facilitate the growth of the international commodities market for products including cotton, contributed to the current beliefs of business investors and even how communities of color are still governed and supported. The impact of that shift in …

International Law In The Boardroom, Kishanthi Parella

Scholarly Articles

Conventional wisdom expects that international law will proceed through a “state pathway” before regulating corporations: it binds national governments that then bind corporations. But recent corporate practices confound this story. American corporations complied with international laws even when the state pathway broke down. This unexpected compliance leads to three questions: How did corporations comply? Why did they do so? Who enforced international law? These questions are important for two reasons. First, many international laws depend on corporate cooperation in order to succeed. Second, the state pathway is not robust, then or now. It is therefore vital to identify alternatives to …

The Sec's Spac Solution, Karen Woody, Lidia Kurganova

Scholarly Articles

The SPAC craze has ebbed and flowed over the past few years, creating fortunes and ruining others. The SEC stepped into the mix in 2022 and proposed rules governing SPACs. The proposed rules artfully balance the interests of investor protection while retaining some of the featured characteristics of SPACs as innovative ways to take companies public. This Article details the history of SPACs, including their benefits and risks, and analyzes the SEC’s proposed rules, arguing that the SEC is well within its Congressional authority to regulate SPACs, and that the proposed rules are both well-tailored and necessary.

Unfair By Default: Arbitration's Reverse Default Judgment Problem, Alexi Pfeffer-Gillett

Scholarly Articles

It is a foundational principle of civil law that a defendant who fails to respond to allegations is deemed to have admitted those allegations and can be subjected to default judgment liability. This threat of default judgment incentivizes defendants to respond to claims, thereby discouraging delay tactics and helping ensure cases are resolved efficiently on the merits.

In consumer and employment arbitration, though, the fairness and efficiency benefits of traditional default judgment are flipped, rewarding rather than punishing unresponsive defendants. This difference from civil litigation arises out of arbitration’s fee structures: if a defendant-company fails to pay its share of …

Caremark'S Butterfly Effect, Angela N. Aneiros, Karen E. Woody

Scholarly Articles

In 1996, the Delaware Court of Chancery detailed the minimum standard for corporate boards of directors (“board”) with regard to corporate compliance programs and monitoring protocols. The landmark Caremark decision held that directors would not face liability for a breach of fiduciary duties unless they failed to implement a system of controls and compliance, or knowingly failed to monitor that system. In order to bring a successful Caremark claim, plaintiffs must prove that the board operated in bad faith by failing to exercise oversight in a sustained or systemic way. The Delaware Court of Chancery opinion noted that the theory …

The October 2021 Term And The Challenge To Progressive Constitutional Theory, J. Joel Alicea

Scholarly Articles

This Essay examines the ways in which the Supreme Court's October 2021 Term challenges core theoretical commitments of progressive constitutional theory. Progressive constitutional theory originated in the progressive political theory of the late nineteenth and early twentieth centuries. Accordingly, progressive constitutional theory shares progressive political theory's commitments to two propositions: rationalism and individualism. These commitments lead to an understanding of history as moving in a particular direction--one that is generally in line with progressive ideology. The originalist and traditionalist approaches of the Court's October 2021 decisions call into question the progressive confidence in the direction of history while simultaneously rejecting …