Law Commons^™

Statutory Jurisdiction And Constitutional Orthodoxy In Mcculloch, Cohens, And Osborn, Kevin C. Walsh

Scholarly Articles

This essay examines the underappreciated element of statutory jurisdiction in McCulloch v. Maryland, Cohens v. Virginia, and Osborn v. Bank of the United States. One objective is to identify more precisely the Marshall Court’s jurisdictional innovations in these three foundational decisions. A close look at the question of statutory jurisdiction in the trio of McCulloch, Cohens, and Osborn reveals a kind of constitutional magnetism at work. In constitutional avoidance, a court adopts an interpretation in order to stay away from a constitutional problem. In contrast, the Marshall Court in Cohens and Osborn expanded the jurisdictional statutes at issue in order …

Who Determines Majorness?, Chad Squitieri

Scholarly Articles

The major questions doctrine is said to assist courts in identifying whether Congress has delegated authority to administrative agencies. A closer look at the doctrine, however, reveals that it has been used by courts to tell Congress how it can delegate authority. What is more, some textualists have proposed strengthening the major questions doctrine into a revived nondelegation doctrine, which speaks to whether Congress can delegate authority. This Article argues that the major questions doctrine, particularly in its strengthened form, runs afoul of key commitments of textualism.

Federalism In The Algorithmic Age, Chad Squitieri

Scholarly Articles

The robots will not be pleased with Frank Pasquale. In New Laws of Robotics, the Brooklyn Law professor outlines two possible futures that can emerge from a growing conflict between human and robotic thought. The first is a future of robotic dominance. In that future, decisions traditionally made by human professionals (e.g., who goes to jail, what medicines are prescribed, and what news gets published) are decided by robots powered by artificially intelligent algorithms. The second future offers robots a less-favored role in the ordering of human affairs. Pasquale earns the displeasure of our would-be robotic overlords by outlining the …

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

Scholarly Articles

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 …

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

Scholarly Articles

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 …

The Miller Trilogy And The Persistence Of Extreme Juvenile Sentences, Cara H. Drinan

Scholarly Articles

In a series of Eighth Amendment cases referred to as the Miller trilogy, the Supreme Court significantly limited the extent to which minors may be exposed to extreme sentences. Specifically, in this line of cases the Court abolished capital punishment for minors and narrowed the instances when minors may be sentenced to life without parole. Only minors convicted of homicide who are found to be “in-corrigible” may now be subject to a death-in-custody sentence. In limiting extreme sentences for youth in these ways, the Supreme Court relied upon the social and medical science that demonstrates youth are simultaneously less culpable …

Marital Versus Nonmarital Entitlements, Raymond C. O'Brien

Scholarly Articles

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 …

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

Scholarly Articles

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, …

The Traditions Of American Constitutional Law, Marc O. Degirolami

Scholarly Articles

This Article identifies a new method of constitutional interpretation: the use of tradition as constitutive of constitutional meaning. It studies what the Supreme Court means by invoking tradition and whether what it means remains constant across the document and over time. Traditionalist interpretation is pervasive, consistent, and recurrent across the Court's constitutional doctrine. So, too, are criticisms of traditionalist interpretation. There are also more immediate reasons to study the role of tradition in constitutional interpretation. The Court's two newest members, Justices Neil Gorsuch and Brett Kavanaugh, have indicated that tradition informs their understanding of constitutional meaning. The study of traditionalist …

First Amendment Traditionalism, Marc O. Degirolami

Scholarly Articles

Traditionalist constitutional interpretation takes political and cultural practices of long age and duration as constituting the presumptive meaning of the text. This Essay probes traditionalism's conceptual and normative foundations. It focuses on the Supreme Court's traditionalist interpretation of the First Amendment to understand the distinctive justifications for traditionalism and the relationship between traditionalism and originalism. The first part of the Essay identifies and describes traditionalism in some of the Court's Speech and Religion Clause jurisprudence, highlighting its salience in the Court's recent Establishment Clause doctrine.

Part II develops two justfications for traditionalism: "interpretive" and "democratic-populist." The interpretive justification is that …

The Faithful Justice, Kevin C. Walsh

Scholarly Articles

On Faith: Lessons from an American Believer is more than a collection of Justice Antonin Scalia’s speeches on religion and American public life. Edited by son Christopher Scalia and former law clerk and long-time confidant Edward Whelan, this eleven-speech collection also includes nine personal reflections from friends and family, four extended excerpts from judicial opinions by Scalia, two prayers (one by St. Thomas More and another by St. Ignatius of Loyola), a funeral mass homily (by son Fr. Paul Scalia), and a letter by Justice Scalia to a Presbyterian minister about the funeral ceremony for Justice Lewis Powell.

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

Scholarly Articles

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 …

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

Scholarly Articles

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 …

Impact Of The Strict Scrutiny Standard Of Judicial Review On Abortion Legislation Under The Kansas Supreme Court’S Decision In Hodes & Nauser V. Schmidt, Elizabeth Kirk

Scholarly Articles

This paper is focused on a narrow matter, namely, the nature of the standard of judicial review adopted by the Kansas Supreme Court in Hodes & Nauser v. Schmidt. 2 The most important (and decisive) point to emphasize is that the standard of judicial review adopted by the court in Hodes is so rigorous that it is likely to unsettle existing abortion law in Kansas and result in a legal landscape for abortion in this state that is more permissive of abortion than either the current federal standard or the original federal standard established by Roe v. Wade.

In order …

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

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 …

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

Scholarly Articles

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 …

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

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 rationale …

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

Scholarly Articles

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 …

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

Scholarly Articles

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 …

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

Scholarly Articles

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 …

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

Scholarly Articles

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

Scholarly Articles

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

Scholarly Articles

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 to …

The Sickness Unto Death Of The First Amendment, Marc O. Degirolami

Scholarly Articles

Part I of this paper describes early American understandings of the purposes and limits of freedom of speech. During this period, the outer bounds of freedom of speech reflected similar limits on the right of religious freedom: both were conceived within an overarching framework of natural rights delimited by legislative judgments about the common political good. Though there is scholarly debate about how much the Fourteenth Amendment may have altered that approach in certain details, the basic legal framework remained intact in the nineteenth century.

Part II traces the replacement of that framework with a very different one in the …

Judicial Independence And Accountability: Withstanding Political Stress, Leah Wortham

Scholarly Articles

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

Scholarly Articles

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 …

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

Scholarly Articles

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

Scholarly Articles

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 …

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

Scholarly Articles

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, than …

God’S Grace And The Marketplace: Mainline Protestant Church, Faith And Business, Sarah Helene Duggin

Scholarly Articles

This paper explores the engagement of Mainline Churches with business ethics in the workplace and offers some ideas for how Mainline churches can participate more fully in the work that needs to be done. Part I suggests that, for many years, Mainline churches were less active than one might expect in supporting the development of robust faith perspectives on business ethics, and it identifies possible cultural, financial, and structural factors why this may be so. Many of these factors are common to other religious traditions, although some are particularly relevant to Mainline denominations. The discussion in Part II begins with …