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The Legal Origins of Catholic Conscientious Objection
Get PDFThis Article traces the origins of Catholic conscientious objection as a theory and practice of American constitutionalism. It argues that Catholic conscientious objection emerged during the 1960s from a confluence of left-wing and right-wing Catholic efforts to participate in American democratic culture more fully. The refusal of the American government to allow legitimate Catholic conscientious objection to the Vietnam War became a cause célèbre for clerical and lay leaders and provided a blueprint for Catholic legal critiques of other forms of federal regulation in the late 1960s and early 1970s—most especially regulations concerning the provision of contraception and abortion.
Over the past two decades, legal scholars have worked to unearth the social movements and constitutional arguments that paved the way for Roe v. Wade, as well as post-Roe law and politics. These efforts will likely intensify in the wake of Dobbs v. Jackson Women’s Health Organization. This Article contributes to the existing literature by reconstructing some of the institutional and ideological terrain that shaped the Catholic legal reception of Roe as an affront to the Catholic conscience—both coercive of the religious liberty of Catholics and a blow to their equal status as citizens. This history, in turn, helps to clarify the connection between the Roberts Court’s religious liberty and reproductive rights jurisprudence
A New Takings Clause? The Implications of Cedar Point Nursery v. Hassid for Property Rights and Moratoria
Get PDFIn part, the Fifth Amendment to the Constitution holds that “no person . . . shall [have their] private property . . . taken for public use, without just compensation.” In Cedar Point Nursery v. Hassid, the U.S. Supreme Court ruled that “a California regulation that permits union organizers to enter the property of agricultural business to talk with employees about supporting a union is unconstitutional.” The purpose of this Note is to discuss what Cedar Point Nursery means generally for the future of Takings Clause analysis and will argue that Cedar Point Nursery should be seen as a seminal case that will alter the Court’s Takings Clause analysis as it is currently understood. Additionally, this Note will use the recent eviction moratorium as a case study, predicting the success of landlords at recovering income under the Takings Clause.
Part I of this Note will focus on the history of the Takings Clause, the relationship of the Takings Clause to property rights in the Western tradition, a generalized history of property rights in the Western tradition, and the role of the Takings Clause as a limitation on private property rights in the United States. Part II of this Note will provide an overview of takings pre–Cedar Point, focusing on the different kinds of takings, the use of history by the Supreme Court to decide Takings Clause cases, and the meaning of “just compensation.” Part III of this Note will provide an overview of expected Takings Clause analysis after Cedar Point Nursery, addressing the future of temporary takings and per se takings by analyzing the opinion of the Court in Cedar Point Nursery. Part III will also address Justice Breyer’s dissent in Cedar Point Nursery. Part IV will address a normative question: whether the Supreme Court made the right decision in Cedar Point Nursery, highlighting both an Originalist and a non-Originalist argument as well as other arguments that could be made regarding the Court’s decision. Finally, Part V will address the expectation for landlords making a Takings Clause claim given the Court’s Takings Clause jurisprudence in Cedar Point Nursery.
This abstract has been adapted from the author\u27s introduction
Access, Authentication and Preservation: Three Keys to Boosting the Integrity and Inclusivity of Public Information
Get PDFRaising Corporate Consciousness of Employer Liability for Video Zoom While Driving
Get PDFImagine that you have logged onto a video Zoom meeting, and you notice that one of the participants is driving. He fumbles with the phone, trying to align the camera with his face, looking from the phone to the road ahead. Other participants on the call either say nothing or thank him for being willing to participate from his car. That is distracted driving, and if he collides with a car or pedestrian due to that distraction, each of those meeting participants could be held liable for distracting the driver. In addition, they would be witnesses to his distracted driving in the lawsuit that would likely result in his employer being held liable. This Article summarizes the risks of employer liability arising from distracted driving and proposes policies to reduce the risk of that liability
Substituted Service and the Hague Service Convention
Get PDFState law plays a surprisingly large role in transnational litigation, and how it defines the applicability of the Hague Service Convention is an important example. In Volkswagenwerk Aktiengesellschaft v. Schlunk, the U.S. Supreme Court held that the Convention does not apply when, under state law, service of process is made within the United States. In Schlunk, Illinois law permitted substituted service on the U.S. subsidiary of a foreign parent company, so the Convention did not apply. This Article looks at substituted service under state law today and when it permits avoidance of the Hague Convention. The Article focuses on two kinds of substituted service that many states permit: (1) substituted service on affiliated companies; and (2) substituted service on state officials.
The Article argues that states should liberalize their rules for substituted service on affiliated companies by focusing on whether service on the affiliate provides adequate notice to the defendant rather than on whether there are grounds to pierce the corporate veil, as many states currently do. The Article further argues that when substituted service is made on a state official, the Due Process Clauses require that a copy of the service be sent abroad, making the Hague Convention applicable
Disclosure of Private Climate Transition Risks
Get PDFThis Article identifies a gap in the securities disclosure regime for climate change and demonstrates how filling the gap can improve financial disclosures and accelerate climate change mitigation. Private climate initiatives have proliferated in the last decade. Often led by advocacy groups, these private initiatives have used naming and shaming campaigns and other means to induce investors, lenders, insurers, retail customers, supply chain customers, and employees to pressure firms to engage in climate change mitigation. Based on an empirical assessment of the annual reports filed with the Securities and Exchange Commission (SEC) by Fortune 100 firms and the largest firms in several fossil fuel-heavy sectors, this Article concludes that roughly a third of these firms disclose the risks and opportunities posed by private environmental governance (PEG) initiatives. The assessment also finds, however, that disclosures vary substantially among similar firms and among similar sectors. The Article argues that this heterogeneity in disclosure is not surprising given that the SEC’s 2010 climate guidance and other disclosure regimes do not call sufficient attention to PEG climate initiatives, and many lawyers think of environmental risks as synonymous with governmental regulatory risks. The legal literature on climate transition risk focuses principally on whether regulatory and market-based risks should be disclosed, but it overlooks the importance of the material risks posed by PEG climate initiatives. PEG climate initiatives pose a discrete form of climate transition risk for many firms, and revisions to the SEC guidance and other disclosure regimes to account for PEG climate initiatives can be adopted more quickly, produce more complete financial disclosures, and yield greater and more durable emissions reductions than many other approaches
Collective Cognitive Capital
Get PDFThis Article calls for a new project for law and neuroscience. It outlines a structural, not individual, application of brain and behavioral science that is aligned with the general goal of basic science research: improving the lives of citizens with a better understanding of the human experience. It asks brain and behavioral science to move explicitly into public policy territory, and specifically onto ground more traditionally occupied by economists—but in ways the project of “behavioral economics” has not yet ventured. Put simply, policy analysts should focus on brains—“collective cognitive capital”—with the same intensity with which they focus on money, rights, or other policy metrics.
To that end, this Article introduces and explores the novel framework of “collective cognitive capital”: a way of thinking of brain health and brain function as an aggregated resource. Collective cognitive capital is a conceptual framework for synthesizing brain and behavioral data and using it to assess the impacts of policy choices. The core thesis for this future of “law and neuroscience” is simple: we can and should use brain and behavioral science to evaluate public policy decisions by how they affect the brain functioning of the people. Normatively, policies should seek to maximize “collective cognitive capital” because it is inherently valuable. Cognitive and emotional functioning, and overall brain health, subserve and maximize individual agency and freedom