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The Catholic University of America, Columbus School of Law

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A Bibliography Of Faculty Scholarship, Law Library May 2021

A Bibliography Of Faculty Scholarship, Law Library

Scholarly Articles and Other Contributions

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 ...


Child Support And Joint Physical Custody, Raymond C. O'Brien Jan 2021

Child Support And Joint Physical Custody, Raymond C. O'Brien

Scholarly Articles and Other Contributions

Child custody has evolved to the point where, at a minimum, states provide a mediated process by which parents may formulate parenting plans with court-appointed assistance. At a maximum state legislatures and courts increasingly consider joint physical custody awards. While joint physical custody safeguards the fundamental rights of parents, it nonetheless prompts practical concerns in awarding child support. Today, child support begins with state statutory guidelines, but the guidelines often fail to adequately address the economic consequences of two complete residences, one supported by a parent with fewer economic resources, and the fact that oftentimes the child drifts from one ...


Fintech: New Battle Lines In The Patent Wars?, Megan M. La Belle, Heidi Mandanis Schooner Jan 2021

Fintech: New Battle Lines In The Patent Wars?, Megan M. La Belle, Heidi Mandanis Schooner

Scholarly Articles and Other Contributions

Historically, financial institutions have relied on trade secrets and first-mover advantages, rather than patents, to protect their inventions. For the few financial patents that were issued, conventional wisdom was that they weren’t terribly interesting or important. In our 2014 study on financial patents, we showed that banks were breaking from past patterns and increasingly seeking patent protection. We explained that financial institutions were primarily building their patent portfolios as a defensive measure—i.e., to protect themselves from infringement suits. Indeed, the finance industry successfully lobbied Congress to include provisions in the America Invents Act of 2011 that made ...


Information Age Technology, Industrial Age Laws, Elizabeth I. Winston Jan 2021

Information Age Technology, Industrial Age Laws, Elizabeth I. Winston

Scholarly Articles and Other Contributions

The United States patent system was born during the Industrial Age — at a time where the focus was on promoting innovation in machines, and tangible means of changing the world. With the dawn of the Information Age, innovation is increasingly intangible. The industrial age laws, as currently interpreted, are not well-suited for the changing and evolving technological world. Information age innovators face challenges at the United States Patent and Trademark Office, through the judicial system and at the United States International Trade Commission. It is time for a change in the system to reflect the realities of modern technology. Adequate ...


Bargaining For Innovation, Elizabeth I. Winston Jan 2021

Bargaining For Innovation, Elizabeth I. Winston

Scholarly Articles and Other Contributions

Reward drives innovation. For this reason, Congress has enacted a system of patents, trademarks, and copyrights to incentivize innovation. Such publicly ordered intellectual property regulation supports public and private interests—mandating disclosure of the innovation while legislating protection of that disclosure. Increasingly, though, the legislated incentives are proving insufficient for innovation, and innovators are relying on private incentives, undermining the fundamental balance of our legal framework and maximizing the reward to innovators at the cost of the public’s interest. Enforcement of contracts that supplant legislation rather than supplement it contravenes public policy and vitiates the public’s interest. It ...


A "Directed Trust" Approach To Intergenerational Solidarity In American Environmental Law And Policy: A Modest Proposal, Lucia A. Silecchia Jan 2021

A "Directed Trust" Approach To Intergenerational Solidarity In American Environmental Law And Policy: A Modest Proposal, Lucia A. Silecchia

Scholarly Articles and Other Contributions

In recent years, much has been written about trust principles as a useful lens through which to view environmental obligations – particularly with respect to the obligations of the present generation to those who will live in the generations to come.
Underlying much of this discussion is the ancient principle of the public trust doctrine as a vehicle for meeting that intergenerational responsibility. However, while trust theory enjoys an impressive legal pedigree, it has not gained as much traction in American environmental law as might be effective for addressing contemporary environmental issues.
One reason that the trust model is not as ...


Conversations On The Warren Court's Impact On Criminal Justice: In Re Gault At 50, Cara H. Drinan Jan 2020

Conversations On The Warren Court's Impact On Criminal Justice: In Re Gault At 50, Cara H. Drinan

Scholarly Articles and Other Contributions

This Article examines the Supreme Court’s landmark In re Gault decision of 1967, in which the Supreme Court ushered in the “due process era” of juvenile justice in America by determining that juveniles were entitled to the right to counsel and other procedural safeguards during delinquency proceedings. But this Article continues with a critical focus on the impact of the decision today, examining a dichotomy between what was declared a “revolution in children’s rights,” and how youth in the criminal justice system still have not seen the extent of constitutional protections declared necessary by Gault. Arguing that Gault ...


Church And State And Child Endangerment, Raymond C. O'Brien Jan 2020

Church And State And Child Endangerment, Raymond C. O'Brien

Scholarly Articles and Other Contributions

As media in the United States revealed the number of minors sexually abused by clergy, the gravity of the offenses, and the inability to prosecute the offenders, a second offense was revealed. Gradually it was illustrated that bishops and their diocesan administrators knew of credible sexual crimes against children committed by clergy and they responded by protecting offenders, ignoring victims, and knowingly reassigning credibly accused clergy to other placements where they could endanger additional minors. In response to these developments the United States Conference of Catholic Bishops published policies to protect children, enacted norms to be followed in each diocese ...


Marital Versus Nonmarital Entitlements, Raymond C. O'Brien Jan 2020

Marital Versus Nonmarital Entitlements, Raymond C. O'Brien

Scholarly Articles and Other Contributions

This Article discusses the evolution of family structure and the ascendency of privacy, liberty, and self-determination. Partially in response, an array of nonmarital unions have become commonplace in the past fifty years in the United States. Cases reveal the insufficiency of remedies avail- able to these nonmarital couples at dissolution-even for those couples living in states willing to enforce express or implied nonmarital agreements. Strikingly, there are fewer remedies for nonmarital cohabitants at death.

Public policy mandates concern for all citizens, including the evolu- tion of individualized family structures formed by its citizens. The issue addressed in this Article is ...


Is The #Metoo Movement For Real? The Implications For Jurors’ Biases In Sexual Assault Cases, Mary Graw Leary Jan 2020

Is The #Metoo Movement For Real? The Implications For Jurors’ Biases In Sexual Assault Cases, Mary Graw Leary

Scholarly Articles and Other Contributions

This Article examines the emerging research on the #MeToo movement and its potential effects on the population of potential jurors, exploring the possibility of improving the jury pool in sexual assault cases. Part I discusses the current problem of attrition in sexual assault cases. Part II examines the substantial body of literature surrounding this attrition and the potential reasons for it. Part III explores the #MeToo movement and reviews the emerging body of research regarding it. Part III also considers whether the movement will impact juries positively or whether the attrition rates based on rape myths, misogyny, and rape culture ...


Social Welfare And Political Organizations: Ending The Plague Of Inconsistency, Roger Colinvaux Jan 2019

Social Welfare And Political Organizations: Ending The Plague Of Inconsistency, Roger Colinvaux

Scholarly Articles and Other Contributions

This article considers the use of social welfare organizations for political purposes, assesses the damage, and offers solutions. Part I of the article provides an overview of present law and compares social welfare and political organizations in the context of political campaign intervention. Part II considers the many serious ongoing harms that have resulted from the current legal framework. Part III assesses different solutions. The article concludes that in general, the disclosure and financing rules concerning the political activity of social welfare and political organizations should be consistent. Consistent rules would reduce incentives to deceive regulators and the public and ...


Against The Tiers Of Constitutional Scrutiny, Joel Alicea, John D. Ohlendorf Jan 2019

Against The Tiers Of Constitutional Scrutiny, Joel Alicea, John D. Ohlendorf

Scholarly Articles and Other Contributions

This year, for the first time in nearly a decade, the Supreme Court will return to the subject of the Second Amendment. New York State Rifle & Pistol Association, Inc. (NYSRPA) v. City of New York concerns a New York City licensing regime that, at the time the Court granted review, prohibited the transportation of any firearm outside city limits. (The City subsequently changed its licensing regime, perhaps in an effort to make the case go away before the Court could rule on the merits. It is unclear, at the time we write, whether that tactic will succeed.) Although most popular ...


Judicial Independence And Accountability: Withstanding Political Stress, Leah Wortham Jan 2019

Judicial Independence And Accountability: Withstanding Political Stress, Leah Wortham

Scholarly Articles and Other Contributions

For democracy and the rule of law to function and flourish, important actors in the justice system need sufficient independence from politicians in power to act under rule of law rather than political pressure. The court system must offer a place where government action can be reviewed, challenged, and, when necessary, limited to protect constitutional and legal bounds, safeguard internationally-recognized human rights, and prevent departures from a fair and impartial system of law enforcement and dispute resolution. Courts also should offer a place where government officials can be held accountable. People within and outside a country need faith that court ...


Fixing Philanthropy: A Vision For Charitable Giving And Reform, Roger Colinvaux Jan 2019

Fixing Philanthropy: A Vision For Charitable Giving And Reform, Roger Colinvaux

Scholarly Articles and Other Contributions

The article explains how Congress can advance the goals and values of philanthropy and address the crisis of the charitable sector with a number of legislative initiatives. These include expansion of the charitable giving incentive, reform of in-kind contributions, getting more money to working charities with a payout rule for donor advised funds (DAFs), and changing standards for private foundation transfers to DAFs. Congress can also improve the worthiness of the charitable sector by maintaining the separation of politics and charity, supporting oversight (including by mandatory e-filing of returns), and by revisiting some of the rushed through ideas of recent ...


Administrative Power And Religious Liberty At The Supreme Court, Mark L. Rienzi Jan 2019

Administrative Power And Religious Liberty At The Supreme Court, Mark L. Rienzi

Scholarly Articles and Other Contributions

The Supreme Court has recently seen an increase in the number of religious exercise cases in which the conflict was caused by an act of administrative power, rather than an act of legislative power. There are probably several reasons for this increase, including the growth, size, and flexibility of the administrative state, political convenience, and the fact that administrators tend to be specialists who may be unaware of or undervalue competing interests like religious liberty.

While the sheer size, reach, flexibility, and specialization of the administrative state means we will likely continue to see more religious exercise conflicts caused by ...


An Erie Approach To Privilege Doctrine., Megan M. La Belle Jan 2019

An Erie Approach To Privilege Doctrine., Megan M. La Belle

Scholarly Articles and Other Contributions

This short essay considers the HannStar and Silver cases and begins a discussion of the impact that the Erie doctrine has—and, more importantly, ought to have—on privilege law. While Erie is considered by many as “one of the modern cornerstones of our federalism,” the doctrine is important too for the change it can effect through the cross pollination of ideas among tribunals. Because privilege laws reflect deliberate policy choices by legislatures and courts, the Erie doctrine arguably plays a particularly vital role in developing this area of the law.


Expanding And Strengthening Legal Clinical Education In Ukraine, Leah Wortham Jan 2019

Expanding And Strengthening Legal Clinical Education In Ukraine, Leah Wortham

Scholarly Articles and Other Contributions

On June 21, 2017, I submitted a report to USAID Nove Pravosuddya Justice Sector Reform Program (New Justice) titled A Role for Regulations, Standards, Best Practices, and Monitoring in Building Strong Clinical Legal Education Programs. That report centered on an analysis of three documents: (1) the Draft Model Regulation on Legal Clinic of a Higher Educational Institution as posted by the Ukrainian Ministry of Education and Science (MOE) on April 19, 2017; (2) the Standards for Legal Clinics Functioning in Ukraine developed by the Association of Legal Clinics of Ukraine (ALCU) (hereafter Standards); (3) a draft instrument to monitor law ...


The Immediacy Of Genome Editing And Mitochondrial Replacement, Raymond C. O'Brien Jan 2019

The Immediacy Of Genome Editing And Mitochondrial Replacement, Raymond C. O'Brien

Scholarly Articles and Other Contributions

After human DNA was first defined in 1953, the parallel science of assisted reproductive technology achieved a successful human birth through in vitro fertilization in 1978. Science then went on to facilitate gestational surrogacy, banking human reproductive materials, such as embryos, and greater opportunities for couples and individuals to become parents. Fertility clinics were established throughout the world to help persons and couples achieve parenthood, contributing to a steady increase in babies born through assisted reproductive means. Gradually, both federal and state laws in the United States were enacted to collect data from the fertility clinics, mandate insurance coverage of ...


History Repeats Itself: Some New Faces Behind Sex Trafficking Are More Familiar Than You Think, Mary Graw Leary Jan 2019

History Repeats Itself: Some New Faces Behind Sex Trafficking Are More Familiar Than You Think, Mary Graw Leary

Scholarly Articles and Other Contributions

This Essay argues that the historical pattern of businesses that benefit directly or indirectly from the slave trade opposing efforts to end that sale of human beings is repeating itself today. Some tech companies and other members of the digital economy face a perverse motivation: they profit indirectly from online sex trafficking and risk decreased profits from a more regulated Internet. As such, they take on the same role of the cotton and textile merchants of the nineteenth century, arguing for legislative action that will continue to enable the trade and exploitation of human beings, thereby allowing them to retain ...


How I Learned To Stop Worrying And Love The Bots, And How I Learned To Start Worrying About Democracy Instead, Antonio F. Perez Jan 2019

How I Learned To Stop Worrying And Love The Bots, And How I Learned To Start Worrying About Democracy Instead, Antonio F. Perez

Scholarly Articles and Other Contributions

This essay reviewing Striking Power, John Yoo and Jeremy Rabkin's new book on the legal and policy implications of autonomous weapons, takes issue with the book’s assumptions and; therefore its conclusions. The essay argues that, because of technological and ethical limitations, discriminate and effective use of autonomous weapons may not serve as an adequate substitute for traditional manpower-based military forces. It further argues that traditional conceptions of international law could prove more durable than Yoo and Rabkin suggest, and finally it concludes by suggesting that a grand strategy relying primarily on technological elites managing autonomous weapons actually threatens ...


Charitable Tax Reform For The 21st Century, Roger Colinvaux, Ray Madoff Jan 2019

Charitable Tax Reform For The 21st Century, Roger Colinvaux, Ray Madoff

Scholarly Articles and Other Contributions

The article identifies two goals of the charitable giving tax incentives: promoting actual charitable work and fostering a strong culture of charitable giving with broad participation. The recent increase to the standard deduction and the rise of donor-advised funds compromise both goals. The article outlines reform proposals to bolster the charitable sector, including expanding the giving incentive to all taxpayers in the form of a credit (subject to a giving floor), allowing some tax benefits to DAF donors upon contribution but delaying the income tax deduction until DAF funds are released from advisory privileges, closing loopholes that enable foundations and ...


Strengthening The International Clinical Scholarly Community: Opportunities For The Clinical Law Review And Beyond, Leah Wortham Jan 2019

Strengthening The International Clinical Scholarly Community: Opportunities For The Clinical Law Review And Beyond, Leah Wortham

Scholarly Articles and Other Contributions

In its first 25 years, the Clinical Law Review (CLR) provided a ground-breaking foundation to build a scholarly field inspired and informed by clinical work and to legitimate that scholarship within the academy. The CLR broadened the window for clinicians to put their work in a wider context of other clinicians' experience, and with that context and comparison, to build theory from this common body of endeavor.

As Part I describes, 12 of the CLR's 404 works in its 25-year history include voices from outside the United States. While some countries' clinical education history is as old, or older ...


A Vision Of Criminal Violence, Punishment And Relational Justice (Reviewing Sam Pillsbury, Imagining A Greater Justice – Criminal Violence, Punishment, And Relational Justice), Mary Graw Leary Jan 2019

A Vision Of Criminal Violence, Punishment And Relational Justice (Reviewing Sam Pillsbury, Imagining A Greater Justice – Criminal Violence, Punishment, And Relational Justice), Mary Graw Leary

Scholarly Articles and Other Contributions

Since the inception of a state-run criminal justice system, many have debated and critiqued its features and goals. Often this dialogue takes place largely among academics and theorists with limited impact on policy and an even more marginal influence on the day to day reality of those most affected by the system. In every generation or so, however, a consequential movement emerges, for better or worse. These include movements regarding the evolution of the prison system, the creation of a rehabilitative juvenile court system, the implementation of “tough on crime” provisions of the 1980s, as well as others. With these ...


Exploring The Role Of Emotions In Clinical Legal Education: Inquiry And Results From An International Workshop For Legal Educators, Catherine F. Klein, Kate Seear, Lisa Bliss, Paul Galowitz Jan 2019

Exploring The Role Of Emotions In Clinical Legal Education: Inquiry And Results From An International Workshop For Legal Educators, Catherine F. Klein, Kate Seear, Lisa Bliss, Paul Galowitz

Scholarly Articles and Other Contributions

Clinical legal education provides a unique opportunity to engage with emotions. This article describes and reflects on an interactive workshop that examined the nature, meaning and significance of emotions in clinical legal education. Through a variety of incorporated staged activities, employing the teaching methods of scaffolding as well as backward design, participants explored aspects of the emotional dimensions of the relationships between clinical teachers/supervisors and their students, along with the relationship between students and their clients. Participants extracted ideas for how educators should approach emotions when they surface in legal clinics. This article provides a detailed overview regarding the ...


Touch Dna And Chemical Analysis Of Skin Trace Evidence: Protecting Privacy While Advancing Investigations, Mary Graw Leary Jan 2018

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

Scholarly Articles and Other Contributions

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 ...


The Indecency And Injustice Of Section 230 Of The Communications Decency Act, Mary Graw Leary Jan 2018

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

Scholarly Articles and Other Contributions

Section 230 of the Communications Decency Act is a 1996 law wholly inadequate to address 21st 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 trafficking jurisprudence ...


“Dignity In Living And In Dying”: The Henry H. H. Remak Memorial Lecture, George P. Smith Ii Jan 2018

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

Scholarly Articles and Other Contributions

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 ...


Religious Organizations As Partners In The Global And Local Fight Against Human Trafficking, Mary Graw Leary Jan 2018

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

Scholarly Articles and Other Contributions

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 ...


International Law And The Balfour Decision, Geoffrey R. Watson Jan 2018

International Law And The Balfour Decision, Geoffrey R. Watson

Scholarly Articles and Other Contributions

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 ...


Equitable Relief For Erisa Benefit Plan Designation Mistakes, Raymond C. O'Brien Jan 2018

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

Scholarly Articles and Other Contributions

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 ...