Law Commons^™

The Catholic Law School And Constitutional Self-Government, The Honorable Diarmuid F. O'Scannlain

Brendan F. Brown Lecture Series

Judge O’Scannlain’s address posited that America’s approximately two dozen Catholic-affiliated law schools fulfill a critically important role in legal education, helping to form the character and intellect of future generations of lawyers while addressing questions of law, jurisprudence and constitutional self-government though the distinct lens of the Catholic intellectual tradition. The application of jurisprudence that is untethered to natural law—defined by the judge as a set of principles that derive from a comprehensive view of man’s purpose and destiny—risks subjecting human life, in his view, to “irresponsible, value-neutral notions of freedom” that poorly serve society as a whole. For that …

Moderamen Inculpatae Tutelae: The Jurisprudence Of A Justifiable Defense, Kenneth Pennington

Scholarly Articles

Intentionality and proportionality enter the jurisprudence dealing with rights of defense at the end of the third century of the common era. A rescript of the emperors Diocletian and Maximian to a certain Theodorus in 290 A.D. resolved a legal issue that had arisen from a court case. The question sent to the imperial court must have been: what kind of a defense a person can use if a robber attempts to take his property away. The imperial court’s response coined a new term, “moderamen inculpatae tutelae” that had never been used before, at least not in the sources that …

Judge Posner, Judge Wilkinson, And Judicial Critique Of Constitutional Theory,, Kevin C. Walsh, Marc O. Degirolami

Scholarly Articles

Judge Richard Posner's well-known view is that constitutional theory is useless. And Judge J Harvie Wilkinson III has lambasted constitutional theory for the way in which its "cosmic" aspirations threaten democratic self-governance. Many other judges hold similar views. And yet both Posner and Wilkinson-in the popular press, in law review articles, and in books-have advocated what appear to be their own theories of how to judge in constitutional cases. Judicial pragmatism for Posner and judicial restraint for Wilkinson seem to be substitutes for originalism, living constitutionalism, political process theory, and so on. But both Posner and Wilkinson also deny that …

Re-Negotiating A Theory Of Social Contract For Universal Health Care In America Or, Securing The Regulatory State?, George P. Smith Ii

Scholarly Articles

Political ideologies and evolving notions of social justice have shaped public health policies throughout American history in a quest to find a point of balance between the collective good and economic realities. In pursuit of this balance, Congress enacted the Affordable Care Act in 2010. This Article first examines the new law through the lens of the social contract as envisioned by Rousseau and adopted by the Framers of the Constitution. Using economic data, public opinion, and information from the medical community, Smith and Gallena proceed to offer a frank appraisal of the state of health care in America and …

The Biography Of Gratian, The Father Of Canon Law, Kenneth Pennington

Scholarly Articles

The research on the pre-Vulgate manuscripts has been enormously interesting and, not surprisingly, has created areas of disagreement about aspects of Gratian’s life, work, and teaching. These scholarly debates have given birth to a fruitful and vigorous exploration into the teaching and development of law in the first half of the twelfth century.5 The issues are many. Perhaps the most important is the lack of consensus about how long Gratian worked on the Decretum and how long he taught. That will be the focus of this Essay.

Increasing Coverage In Today’S Private Retirement System, Regina T. Jefferson

Scholarly Articles

Part I of this Reflection describes and critiques the effective-ness of the existing nondiscrimination standards for encouraging in-creased coverage in the private retirement system. Part II examines current trends with respect to various segments of the working population and concludes that existing pension law and policies are providing inadequate retirement benefits to low- and middle-income workers participating in 401(k) plans. Part III proposes the following three recommendations for increasing participation rates in the current pension climate: (1) mandatory education programs for all 401(k) plans; (2) mandatory automatic features in 401(k) plans; and (3) an additional tax incentive to encourage greater …

Guidelines For The Self Evaluation Of Legal Education Clinics And Clinical Programs, J.P. "Sandy" Ogilvy

Scholarly Articles

This volume is an effort to present a comprehensive set of guidelines for the self-evaluation of legal clinics and programs. The last time that guidelines were developed for legal clinics was in 1980 when a joint AALS and ABA Committee on Guidelines for Clinical Legal Education published its Guidelines for Clinical Legal Education. The present guidelines trace their lineage to the efforts of a group of clinicians working under the auspices of the CLEA-AALS Section on Clinical Legal Education Joint Task Force on Clinical Standards, which was formed in 1995 and was active for several years. These guidelines also draw …

A Whole Text Reading Of The War Powers Clauses: Why The Constitution’S Text Obviates Esoteric War Powers Debates And Encourages Policy Flexibility And Democratic Accountability, Antonio F. Perez

Scholarly Articles

This paper is a lightly-footnoted and modestly expanded version of my presentation at the Georgetown Journal of Law & Public Policy Symposium’s panel on Executive War Powers, Syria, and President Obama’s “Red Line”—Did President Obama Have the Power to Use Force in Syria without Congressional Approval? While criticizing the President’s policy decision, this paper argues that the President would have been well within his authority to use force. Relying r on a whole text reading of the relevant constitutional provisions, it argues that the President’s authority to use force is virtually plenary, while Congress’s authority is limited to governing the …

Narrowing The Gap Between Rights And Resources: Finding A Role For Law Students In Court-Annexed Resource Centers, Faith Mullen

Scholarly Articles

This article relates the experience of law students from The Catholic University of America providing assistance in the Small Claims Resource Center during the past eight years. During this time, the District of Columbia Bar Pro Bono Program has played a pivotal role in the development and the ongoing success of court-annexed resource centers in the District of Columbia. They have recruited law firms and legal services providers (including law school clinics) to staff the resource centers, sought changes in the rules of professional responsibility, and developed intake forms and model pleadings. Their steady oversight, provided by knowledgeable and resourceful …

Lincoln’S Legacy For American International Law, Antonio F. Perez

Scholarly Articles

Is the United States, as an international actor, different from all other international actors? If so, how is it different? What makes it different? How does American sovereignty fit into a larger conception of international law? These questions go back to the beginning of the Republic, and they remain pressing today. Many have debated this question in terms of the legacy of the Founding. Some find in the Founding the seeds of multilateralism and perhaps even cosmopolitanism; others, rejecting this interpretation, advance a nationalist and unilateralist account of the Founding. But the Founding is not the whole story.

This Article …

Political Activity Limits And Tax Exemption: A Gordian’S Knot, Roger Colinvaux

Scholarly Articles

The article considers the correct tax treatment of organized political activity by the tax system and discusses the problems that have arisen from political activity depending on whether the organization is a charity, a noncharitable exempt, or a political organization. The article then examines administrative and legislative options to the problems raised by political activity. Quantum-based solutions to the problem of political activity by noncharitable exempts do not provide a clear advantage over present law. Formally quantifying the “primarily” test would result in more certainty, but would also require that the Service be more, not less, involved in the regulation …

Misconstruing Graham & Miller, Cara H. Drinan

Scholarly Articles

In the last three years the Supreme Court has decreed a sea change in its juvenile Eighth Amendment jurisprudence. In particular, in its Graham v. Florida and Miller v. Alabama rulings, the Court struck down a majority of the states’ juvenile sentencing laws, outlawing life without parole for juveniles who commit non-homicide offenses and mandating individualized sentencing for those children who commit even the most serious crimes. An examination of state laws and sentencing practices, however, suggests that the Graham and Miller rulings have fallen on deaf ears. After briefly describing what these two decisions required of the states, in …

Against Settlement Of (Some) Patent Cases, Megan M. La Belle

Scholarly Articles

For decades now, there has been a pronounced trend away from adjudication and toward settlement in civil litigation. This settlement phenomenon has spawned a vast critical literature beginning with Owen Fiss’s seminal work, Against Settlement. Fiss opposes settlement because it achieves peace rather than justice, and because settlements often are coerced due to power and resource imbalances between the parties. Other critics have questioned the role that courts play (or ought to play) in settlement proceedings, and have argued that the secondary effects of settlement – especially the lack of decisional law – are damaging to our judicial system. Still, …

Big Banks And Business Method Patents, Megan M. La Belle, Heidi Mandanis Schooner

Scholarly Articles

The banking industry and the patent system are longstanding American institutions whose histories date back to the founding of this country. Historically, however, the paths of these two institutions rarely crossed. Although financial firms have been increasing their innovative output for decades now, until recently they relied on trade secrecy, first mover advantages, and other business mechanisms to protect and monetize their intellectual property — not patents.

Through a convergence of circumstances over the past several years, that pattern has changed. The shift began when the Federal Circuit decided that business methods — banks’ primary mode of innovation — are …

Interested, But Not Injured: The Compromised Status Of Qui Tam Plaintiffs Under The Amended False Claims Act And The Return Of The Citizen Suit, A.G. Harmon

Scholarly Articles

No abstract provided.

Fighting Fire With Fire: Technology In Child Sex Trafficking, Mary Graw Leary

Scholarly Articles

The scourge of child sex trafficking is as complex as it is alarming. It is speculated that the “Triple A Engine” effect of the Internet (Affordability, Access, and Anonymity) plays a role in the sex trafficking of children. For example, much media coverage and political action has recently taken place regarding online ad sites such as backpage.com facilitating child sex trafficking. However, as with many aspects of child sex trafficking, obtaining actual measurements and hard data is challenging due to the nature of the crime, the lack of a uniform description, and inherent under-reporting. That is why Microsoft Corporation awarded …

Sowing The Seeds Of Protection, Elizabeth I. Winston

Scholarly Articles

Seeds are chattel. As such, seeds are protectable by the same tapestry of public and private ordering as other forms of chattel. However, the distinguishing characteristic of seeds, their method of propagation, and the history of seeds-traditionally viewed as a public good rather than chatteldistort that tapestry. The model of seed distribution thus needs to be refrained in light of the often disparate interests of innovators, producers, and consumers. As with all chattel, there is no single, correct model for distributing seeds, but law and contract may be woven together to strike a balance.

Observations On Macdonald V. Moose, Kevin C. Walsh

Scholarly Articles

In MacDonald v. Moose, a split panel of the U.S. Court of Appeals for the Fourth Circuit granted a petition for a writ of habeas corpus to undo the state criminal conviction of an adult for soliciting oral sex from a minor. Based on Lawrence v. Texas, the court held a longstanding Virginia prohibition of bestiality and sodomy to be partially facially unconstitutional. Its decision left the bestiality prohibition untouched while holding the sodomy prohibition completely unenforceable, even as applied in cases involving minors.

The panel majority misapplied the deferential standard of review required by Congress for federal habeas …