The Catholic University of America Columbus School of Law
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If It Was Good Enough to Work Against the Nazis . . . : Revitalizing the Foreign Agents Registration Act to Regulate Modern Foreign Electioneering
Full text linkNews headlines from the 2016 election to the present have described an ongoing political scandal that is unmatched in modern history: continued attempts of foreign interference in U.S. elections. It is fairly obvious that the United States lacks adequate restrictions to prevent foreign interference in U.S. elections. It therefore needs a law that—while passing constitutional scrutiny—prohibits more foreign political activity than what is currently covered, especially in relation to social media. This should be a simple and effective legislative fix, a return to the core aspects of the original Foreign Agents Registration Act (FARA) that focuses on potential electioneering of foreign actors in this modern medium.
Because of judicial interpretations for federal campaign finance law, only a small portion of election interference efforts are currently prosecutable. On the other hand, while some new laws have been proposed—both in terms of foreign electioneering and regulating social media—none have addressed this important issue in a way that will stop the full range of potential election interference efforts. In addition, many of these legislative proposals needlessly address other concerns. Therefore, in order to properly address foreign interference in U.S. elections, a simpler, more effective legislative solution needs to be enacted; specifically, a revamped FARA that returns to its original core precepts while incorporating certain aspects of modern campaign finance law. This article proposes just such a thing
The Lost History of Judicial Restraint
Full text linkFor over 125 years, jurists and scholars who have championed judicial restraint have looked back to James Bradley Thayer’s 1893 Harvard Law Review article, The Origin and Scope of the American Doctrine of Constitutional Law, as the seminal authority for the rule that courts should presume the constitutionality of a challenged law and only invalidate it if its unconstitutionality is “clear” and “beyond a reasonable doubt.” But Thayer presented those three rules (presumption of constitutionality, clear error rule, and reasonable doubt standard) as rooted in historical legal practice in America. And yet none of his twentieth or twenty-first century acolytes systematically checked to determine the accuracy of his historical account or discover whether those rules really did become widely accepted and deeply rooted in American legal practice, mostly relying instead upon Thayer’s say-so. Meanwhile, some prominent historians have disputed his account of the history, and many leading originalists have disputed different elements of Thayer’s thesis, some disagreeing with the presumption of constitutionality, others the clear error rule, and still others the reasonable doubt standard
Marine Protected and Conserved Areas: Beneficial Uses of Artificial Intelligence
Full text linkThe ocean is an invaluable tool to the survival of humankind and “produces half of the world’s oxygen, absorbs and sequesters one third of the carbon dioxide human activities emit, provides protection from extreme weather events, and provides a source of food and livelihoods.” Without it, communities would suffer, animals would die off, industries would disappear, and the world would be much worse off. The recommendations made here reflect the growing concern the world has adopted regarding the climate crisis. This concern is warranted as many animals have already disappeared, plants are dwindling, and the once wild areas of the world have become urbanized. Showing that MPAs are invaluable to resolving these problems is the easiest part of the journey ahead; it is the regulation and protection of these areas from overfishing and other environmental crimes that will be more difficult. Using AI and big data, governments will be able to fill the governance gaps that have been present and will be better able to reach the lofty goals they have set for themselves. This paper recommends including connectivity language in the new high seas treaty that reflects the importance of these larger marine systems
A How-To Guide for When Your Favorite Meme Account Is Defamed: Involuntary Public Figures in Defamation, Privacy, and Intentional Infliction of Emotional Distress Law
Full text linkThe world we live in today has changed infinitely since the inception of our Constitution and early legal doctrine. Our Founding Fathers could never have predicted that we would one day live in a world where anyone living in any corner of the globe could garner millions of followers. Whether someone finds him or herself to be particularly proficient in writing Harry Potter fan fiction or to be the best creator of memes with an American Girl Doll focus, ordinary citizens could find themselves suddenly jolted out of quiet anonymity by one unexpectedly viral post. Despite years of Instagram micro-fame, courts have struggled to reshape laws to include concrete rules for how best to regard these micro-celebrities when it comes to privacy, defamation, and intentional infliction of emotional distress claims. This article will go through the history and development of these three different areas of tort law in which a plaintiff’s public figure status is a dispositive factor in determining their ability to recover and will draw conclusions about potential solutions to how existing precedent may evolve in the future and become applicable for the time of mass social media consumption that the world exists in today
The Future of Art and Copyright in the World of AI
Full text linkThis paper focuses on the interpretive framework embodied in copyright law and its application to art-producing technologies, how this framework has been applied to new technologies in the past, and the issues surrounding the adaption of these old frameworks to the modern concern of AI-created art. The paper also considers how the application of copyright law to modern AI issues reflects the law’s capability, or inability, to evolve and address novel situations, specifically in relation to AI-based technology. Further, it examines what, if any, steps should be taken to promote courts maintaining a firm grip on copyright protections. The issues surrounding copyright law and AI-generated creations are progressing and will need updating as new concerns arise and litigation commences
Judicial Power and Potential Unconstitutionality: A Scholastic Perspective
Full text linkThere is a fundamental legal distinction between making the law and applying it. All manner of juridical confusion follows from neglect of this distinction, as the Supreme Court’s statutory severability doctrine strikingly illustrates. In this lecture, I diagnose the cause of severability doctrine’s problems and identify a basic framework for replacement doctrine by drawing on that perennial philosophy which “view[s] the history of philosophy as the development of basic doctrines long discerned and taught, a development by way of deepening appreciation as opposed to constant replacement of one worldview by another.
Administrative Law Judges and the Erosion of the Administrative State: Why Jarkesy May Be the Straw that Breaks the Camel\u27s Back
Full text linkThe Trump-era unitary executive movement sought to expand presidential
power and shrink the influence of the administrative state through deregulation.
This movement ripples into the present moment, as Trump’s overhaul of the
federal judiciary installed a comprehensive system to delegitimize
administrative agency action— a system that is certain to endure. The
independence and role of administrative law judges (ALJs) has proven a key
target of the movement. Most recently, in the 2022 case of Jarkesy v. Securities
and Exchange Commission, the Fifth Circuit held that the dual-tiered for-cause
removal protections of SEC ALJs violated the Take Care Clause of Article II of
the Constitution. This Comment argues that the Constitution sets out a
functional inquiry for evaluating the removability of officials in the Take Care
Clause, as opposed to the categorical inquiry erroneously adopted by the Fifth
Circuit. If upheld by the Supreme Court, Jarkesy and the curtailment of ALJ
independence will have a profound impact on not only the SEC, but all agencies,
and the very fate of the administrative state
A Critique of Guardianship Theory From the Perspective of Catholic Thought: The Tension Between the Duty to Protect and Preservation of Legal Autonomy
Full text linkIn 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 to the human rights of persons with disabilities. Many have written various critiques of guardianships from diverse perspectives.
This article will address guardianship theory through a different lens: the perspective of Catholic social thought on the dignity of the human person. In one sense, to appoint a guardian seems a routine matter. Probate and family courts conduct guardianship proceedings constantly. Yet, there is something morally profound in this routine matter as it dramatically curtails the legal rights of one in favor of expansive legal control by another. The implications of allowing one person to act so fully in the stead of another demands deep reflection. As in other matters, Catholic teaching may be brought to bear on this issue A Catholic view of the dignity of the human person contributes two rich and potentially conflicting lines of thought on this question. The duty to protect a vulnerable person and his or her dignity is a sacred responsibility. A guardianship -- if undertaken by the right person with the right motives -- can accomplish this protection in a highly effective way. On the other hand, because guardianships bring with them a dramatic loss of human autonomy, they can also pose a potential threat to that very dignity, particularly when they are abused or unnecessary.
As legal debates rage both domestically and internationally, there is a profound moral question underlying guardianships that requires deeper reflection on more fundamental questions of human nature, the duty to protect, the obligations of protectors, the value of human autonomy, and the limits, vel non, of human independence. It also forces contemplation about the reality of human vulnerability in all its forms and demands appreciation for both a rightly ordered duty to care and the parameters of authentic freedom. The paper begins with a brief description of guardianships and their ramifications from domestic and international legal perspectives. Next, it will explore relevant Catholic social thought with respect to both the duty to protect vulnerable persons and the importance of human autonomy. Then, it will address what these principles may bring to bear on (1) the substance of guardianship laws and, more importantly, (2) the moral obligations of those who undertake the role of guardians
To Surmount Paramount Decrees by Degrees
Full text linkThe United States Supreme Court in United States v. Paramount and the subsequent Paramount Decrees in 1948 were the federal government’s original attempt to address the consolidation and concentration of the movie production, distribution, and exhibition markets. The government reversed its decision in 2020 because of both changes in the film industry and a change in the legal application of antitrust law. There are two schools of antitrust law thought: structuralism and the consumer welfare standard. The former is concerned with market concentration and supports the Paramount Decrees, and the latter is concerned with prices for consumers and is skeptical of government interference. The Paramount decision was imposed before the widespread adoption of both the rule of reason and consumer welfare standard by federal courts, and its implementation was a cause for the collapse of the Hollywood Golden Age. Its repeal in 2020 was an acknowledgment that antitrust law recognizes the procompetitive efficiencies created by vertical integration and a recognition that the filmmaking industry has significantly more means of exhibition using over-the-top media. Even if the streaming service market concentrates, it is unlikely to lead to increased consumer prices and should not warrant antitrust enforcement
