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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 …

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 …

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 …

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 …

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 …

The Originalist Jurisprudence Of Justice Samuel Alito, J. Joel Alicea

Scholarly Articles

Since Justice Alito’s appointment to the Supreme Court in 2006, constitutional theorists have struggled with how to characterize his approach to constitutional adjudication. Many scholars have argued that “Justice Alito is not to any significant extent an originalist” but is, instead, “a methodological pluralist” who uses both originalist and non-originalist tools of constitutional adjudication. Others have contended that “Justice Alito’s jurisprudence is originali[st], though not in the traditional sense.”

Establishment As Tradition, Marc O. Degirolami

Scholarly Articles

Traditionalism is a constitutional theory that focuses on concrete political and cultural practices, and the endurance of those practices before, during, and after the ratification of the Constitution, as the presumptive determinants of constitutional meaning and constitutional law. The Supreme Court has long interpreted traditionally but now says explicitly that it uses a method of “text, history, and tradition” in several areas of constitutional law. Foremost among these is the Establishment Clause. This Essay examines two questions about traditionalism, both of which concern the Establishment Clause in distinct but related ways. First, why has traditionalism had special salience in this …

Restricting Scientific Legitimacy In The Age Of Biotechnology?, George P. Smith Ii

Scholarly Articles

In the Age of Biotechnology, there is no more pressing question than whether a philosophy of science exists and translates into a notion that—with or without qualification—the sovereignty of science is central to the advancement of society and should be totally emancipated from concurrence or oversight by society at large. Far too many Americans choose neither to be “informed” nor to accept the responsibilities of citizenship to participate fully in a deliberative democracy—they have chosen instead to exercise their “right” to remain ignorant. Consequently, science reigns without restraint or even review. The scientific community has a coordinated responsibility to society, …

Strings Are Attached: Revealing The Hidden Subsidy For Perpetual Donor Limits On Gifts, Roger Colinvaux

Scholarly Articles

Charitable gifts often come with strings attached. Donors limit their gifts in many ways, by restricting an asset’s use or purpose, controlling the timing of spending (as in an endowment), securing naming rights, or by retaining effective control over the distribution or investment of the asset by giving to a charitable intermediary such as a donor advised fund or private foundation. Most donor limits are perpetual in nature and a form of dead hand control. The Article explains that default rules strongly favor donor limits. Property law allows donors wide latitude to place limits on gifts, and they are easy …

"Engines Of The Ruling Party": The Establishment Clause And The Power Politics Of "Managing Diversity", Robert A. Destro

Scholarly Articles

This Essay argues that the Supreme Court's Religion Clauses jurisprudence since Everson v. Board of Education is best understood as part of an ongoing effort by the Court to "manage" the racial, religious, and cultural politics of the nation. Since its infamous decision in Dred Scott v. Sandford, the Court's race and sex discrimination jurisprudence offers equally compelling examples of the ways in which the Justices have sought to sought to control-or "manage"- the racial, ethnic, and cultural composition of the nation's major culture-forming institutions (i.e., to "manage diversity"). Its Religion Clauses jurisprudence, by contrast, offers the clearest examples of …

Personal Jurisdiction And The Fairness Factor(S), Megan La Belle

Scholarly Articles

It has been more than seventy-five years since the Supreme Court decided International Shoe Co. v. Washington, yet questions surrounding the personal jurisdiction doctrine loom large. Over the past decade, the Roberts Court has issued a handful of personal jurisdiction opinions, including Ford Motor Co. v. Montana Eighth Judicial District Court, a case decided in 2021 that addressed an issue related to specific jurisdiction. What is more, courts across the country, including several state supreme courts, have been grappling with the question whether a corporation’s registration to do business constitutes consent to personal jurisdiction in that state. This …

Short Circuiting The Administrative Judiciary: A Response To Linda Jellum, Marshall J. Breger

Scholarly Articles

Linda Jellum provides a powerful analysis of the status of the exhaustion process for the SEC administrative judiciary and more broadly of the entire administrative judiciary. Many of her arguments are telling and on point. I disagree with a number of her technical and statutory arguments, and even more so the consequences of her analysis for the administrative state as we know it.

Jellum's argument is that Congress did not intend to preclude district courts from hearing constitutional challenges to SEC adjudications because agency ALJs are not the right adjudicators to hear challenges to the constitutionality of their own operations.

Creating A Trust Through Delegation, Raymond C. O'Brien

Scholarly Articles

Aging in America has precipitated increasing use of planning for incapacity devices, which include forms creating powers of attorneys ("POAs'). Simple forms may be found online, or they may become part of a sophisticated estate planning portfolio drafted by professionals. Resultingly, to support portability, enforceability, and protection against financial exploitation of vulnerable adults, the National Conference of Commissioners on Uniform State Laws approved the Uniform Power of Attorney Act in 2006 ("UPOAA "), which has been adopted by more than half of United States jurisdictions. One of the Act's provisions requires an express grant of authority contained within the principal's …

Parental Rights: In Search Of Coherence, Elizabeth Kirk

Scholarly Articles

The Supreme Court has referred to parental rights as “the oldest of the fundamental liberty interests recognized by this Court.”¹ Yet, disagreements about the nature and scope of parental rights have proliferated in recent years.

The Appropriate Appropriations Inquiry, Chad Squitieri

Scholarly Articles

The Supreme Court is set to hear oral argument this fall concerning whether the Consumer Financial Protection Bureau (CFPB) is unconstitutionally self-funded. The question presented in the case asks whether the statute establishing the CFPB’s self-funding scheme, 12 U.S.C. § 5497, “violates the Appropriations Clause.” But that question is incomplete at best, because although the Appropriations Clause requires that “appropriations” be “made by law,” the Appropriations Clause does not itself vest Congress with any authority to make “law” in the first place. Instead, Congress’s authority to make appropriations laws is vested in part by the Necessary and Proper Clause. Thus, …

The 2022 Conference Of Religiously Affiliated Law Schools: Reflections On Faculty Vocation And Support, Lucia A. Silecchia

Scholarly Articles

In the United States, numerous law schools identify themselves as “religiously affiliated.” There are many opportunities and challenges that come with such affiliation. What “religiously affiliated” may mean for a law school’s faculty is a particularly critical aspect of this question. I was grateful to have been invited to reflect on what religious affiliation might mean for faculty hiring at the “Past, Present, and Future of Religiously Affiliated Law Schools” conference. What follows are reflections that consider not merely that question—important as it is—but also explore what happens after the hiring decision to make the vocation to teach at a …

Mysterizing Religion, Marc O. Degirolami

Scholarly Articles

In this short essay, I suggest that "mysterizing" religion may change the stakes in some of the most controversial contemporary conflicts in law and religion. To mysterize (not a neologism, but an archaism) is to cultivate mystery about a subject, in the sense described above-to develop and press the view that a certain subject or phenom-enon is not merely unknown, but unknowable by human beings. At the very least, such mysteries are unknowable by those human beings who have charge of the secular legal order of earthly human affairs, Paul's "princes of this world." That is what I propose to …

Traditionalism Rising, Marc O. Degirolami

Scholarly Articles

Constitutional traditionalism is rising. From due process to free speech, religious liberty, the right to keep and bear arms, and more, the Court made clear in its 2021 term that it will follow a method that is guided by “tradition.”

This paper is in part an exercise in naming: the Court’s 2021 body of work is, in fact, thoroughly traditionalist. It is therefore a propitious moment to explain just what traditionalism entails. After summarizing the basic features of traditionalism in some of my prior work and identifying them in the Court’s 2021 term decisions, this paper situates these recent examples …

“Recommend . . . Measures”: A Textualist Reformulation Of The Major Questions Doctrine, Chad Squitieri

Scholarly Articles

Following Biden v. Nebraska, defenders of the major questions doctrine (which requires administrative agencies to identify “clear congressional authorization” to regulate “major” issues) can be categorized as falling within one of two camps. The first camp includes Justices Gorsuch and Alito, who view the major questions doctrine as a substantive canon. The second camp includes Justice Barrett, who explained in Nebraska that she is “wary” of adopting new substantive canons, and indicated that she considers the major questions doctrine to be a linguistic canon. Interestingly, both camps have relied on an influential scholar to advance their positions: then Professor …

The Elevation Of Reality Over Restraint In Dobbs V. Jackson Women’S Health Organization, Kevin C. Walsh

Scholarly Articles

No abstract provided.

The Curious Case Of Tort Liability For A Defective Product That The Defendant Did Not Make, Sell, Or Distribute, Marin Roger Scordato

Scholarly Articles

Rarely does the United States Supreme Court consider and decide an issue of tort law, especially one that does not implicate any aspect of federal constitutional law.

The problem of bare-metal equipment is just such an issue, taken up and addressed by the U.S. Supreme Court less than three years ago in the case of Air and Liquid Systems Corp. v. DeVries. Despite the Court’s opinion, the question continues to generate different responses from state courts and fails to enjoy much accord or consensus at the state-law level, where it has the greatest practical impact. The problem presented to the …

Private Caregiver Presumption For Elder Caregivers, Raymond C. O'Brien

Scholarly Articles

The percentage of older Americans increases each year, with a corresponding percentage increase of those considered the older old. Many older persons will develop chronic conditions, decreasing their ability to manage the activities of daily living and requiring many to move into assisted living facilities or group homes. When surveyed, a majority of people expressed that they wish to age in their own homes, and government programs are increasingly supportive of this option. This is a viable option for many if they have the assistance of private caregivers—who provide a vast array of support services—and essential person-to-person human contact during …

Assisted Suicide, Forced Cooperation, And Coercion: Reflections On A Brewing Storm, Lucia A. Silecchia

Scholarly Articles

Because government funds to institutions and individuals finance a significant amount of medical care in the United States, the prospect of conditions or “strings” attached to that funding is an ever-present specter.

Practice-Based Constitutional Theories, J. Joel Alicea

Scholarly Articles

This Feature provides the first full-length treatment of practice-based constitutional theories, which include some of the most important theories advanced in modern scholarship. Practice-based constitutional theories come in originalist and nonoriginalist—as well as conservative and progressive—varieties, and they assert that a constitutional theory should generally conform to our social practices about law. If, for example, it is part of our social practices for courts to apply a robust theory of stare decisis, then a constitutional theory that would require a less deferential theory of stare decisis is a less persuasive theory. Practice-based constitutional theorists would usually see it as a …

Religious Liberty And Judicial Deference, Mark L. Rienzi

Scholarly Articles

Many of the Supreme Court’s most tragic failures to protect constitutional rights—cases like Plessy v. Ferguson, Buck v. Bell, and Korematsu v. United States—share a common approach: an almost insuperable judicial deference to the elected branches of government. In the modern era, this approach is often called “Thayerism,” after James Bradley Thayer, a nineteenth-century proponent of the notion that courts should not invalidate actions of the legislature as unconstitutional unless they were clearly irrational. Versions of Thayerism have been around for centuries, predating Thayer himself.

The Supreme Court took a decidedly Thayerian approach to the First Amendment in the first …

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 to …

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 accords …