The Catholic University of America Columbus School of Law
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The Court’s Abject Failure at Statutory Construction: \u3ci\u3eSackett v. Environmental Protection Agency\u3c/i\u3e
Full text linkThe essay critiques the Supreme Court’s novel approach toward statutory construction in Sackett (2023). The Sackett Court considered whether the Ninth Circuit applied the appropriate test to determine whether the Sackett’s property contained wetlands regulated under the Clean Water Act (CWA). In doing so, the Court cast aside what has been considered the operative test for assessing jurisdiction, the significant nexus test. In lieu of that test, the majority articulated a considerably constrained understanding of the CWA’s reach. This essay explores how it reached that understanding and why some of the Justices’ analysis is as problematic as the operative conclusion. I explain why the majority opinion and one of the concurring opinions not only shunned any typical analysis when construing a statute, it ostensibly relied on history surrounding navigability without portraying that history with any semblance of thoroughness
Ghost Guns: A Case Study on the Tension Between Public Exigencies and Statutory Construction
Full text linkAdministrative agencies often navigate public policy issues while simultaneously handling complex and highly technical matters. When facing a public emergency, how should courts interpret these agencies’ authorizing statutes? What rules of thumb exist to guide the courts? This Comment answers these questions through a case study on ongoing litigation pertaining to a recent ATF (Bureau of Alcohol, Tobacco, and Firearms) regulation. The regulation, targeted towards ghost guns (also known as “privately manufactured firearms”), seeks to incorporate these weapons within pre-existing definitions in the ATF’s authorizing statute, the Gun Control Act of 1968 (GCA). In spite of challenges to the regulation, this Comment argues that the GCA should be interpreted flexibly to include ghost guns and thereby remedy a growing interstate crisis. More universally, public-interest statutes should likewise be interpreted flexibly where they authorize an agency to act, and the agency is responding to an emergency in the course of its statutory operation
Individualized Ideological Enclosures: The Generative AI Crisis And How Consumers Can Reclaim Their Feeds
Full text linkBlack Excellence in the Legal Field
No full textThe evening began with introductory remarks by BLSA president Miranda Turner (3L), who welcomed attendees before yielding the podium to Emani Johnson (3L), BLSA Black History Month Chairperson, who served as the panel’s moderator.
Johnson introduced the evening’s speakers: Krystal J. Brumfield, Associate Administrator for the Office of Government-wide Policy at the General Services Administration; Marjorie Fields Harris ’95, Assistant Director of External Affairs for the Office of State and Community Energy Programs; Carl Hobbs ’16, Senior Employment Counsel for the Housing and Urban Development Office of the Inspector General; Melanie Howard-Price, External Affairs Specialist and Co-Chair of the Diversity Committee at the U.S. Attorney’s Office for the District of Columbia; and Erica Wright, Assistant General Counsel for the University of the District of Columbia.
In addition to discussing career paths, each panelist expanded upon methods to overcome potential feelings of imposter syndrome after entering the legal profession. They also explored the value of both internships and mentorships and how they each relate to expanding a law student’s social and career networks
Against Algorithmic Auer Deference
Full text linkSmart 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 favor (rather than try their luck with a court’s neutral interpretation), the drafting party has the incentive to use vague smart contract language that the drafting party can later interpret to advance its own future interests, which might change over time.The incentive to use vague terms that the drafting party can later interpret to promote its own future interests is not unique to the futuristic world of smart contracts. To the contrary, administrative law has long grappled with a similar incentive presented to government agencies empowered by Auer v. Robbins to interpret the regulations they write. Under Auer, a court reviewing a regulation’s text would often defer to the agency’s interpretation of that language—even though the regulated entity disagreed with the agency’s interpretation. A traditional critique of that so-called “Auer deference” was that, because an agency knew that courts would favor the agency’s own interpretation, the agency was incentivized to draft regulations with vague terms that the agency could later interpret to fit its own interests. This left regulated entities with less notice as to what their legal obligations might be in the future. But administrative law has developed to correct such incentives by requiring, in Kisor v. Wiklie, that courts play a more central role in interpreting regulatory text (rather than quickly deferring to an agency’s self-serving interpretation). This Article applies the lessons offered by administrative law to the world of smart contracts.Administrative law’s lessons apply to the world of smart contracts because companies can regulate private behavior through smart contracts, similar to how agencies regulate private behavior through regulations. Thus, much like administrative law has developed to ensure that courts do not defer automatically to an agency’s self-serving interpretation, state governments should protect workers and consumers by limiting companies’ abilities to interpret algorithmically their own smart contracts without judicial oversight
Restrictions on public funding of scientific research that are based on consensus/orthodox definitions of ‘science’ are unconstitutional conditions
No full textAs part of the First Amendment Initiatives at The Catholic University of America Columbus School of Law (Catholic Law), the Law School hosted the third annual Seigenthaler Debates the evening of Tuesday, February 27, with the cosponsorships of the Law School’s Federalist Society and American Constitution Society chapters. Each year, the Seigenthaler Debates feature two First Amendment scholars debating and discussing First Amendment issues.
The evening’s debate, held virtually, featured Jenin Younes of the New Civil Liberties Alliance and Robert Charrow, former General Counsel of the Department of Health and Human Services (HHS), and addressed the following resolution: “Restrictions on public funding of scientific research that are based on consensus/orthodox definitions of ‘science’ are unconstitutional conditions.” Younes argued in favor of defining such restrictions as unconstitutional, while Charrow argued in opposition. Judge Justin Walker of the U.S. Court of Appeals for the D.C. Circuit acted as the program’s moderator
Crisis Standards of Care and Triage: Medico-Legal Conundrums
Full text linkThis Article investigates the character, nature, and application of Crisis Standards of Care ( CSC ) in national emergency preparedness plans. Ideally, these standards allow a government to codify frameworks or models for allocating scarce medical resources. The principal mechanism used by healthcare decision-makers to evaluate individuals seeking medical assistance is through triage-a diagnostic process utilizing algorithms to sort, grade, or select those who qualify for medical treatment. This Article studies the principles and values incorporated into these medical algorithms and concludes that more federal government leadership is required to convince the states that CSC are an integral part of emergency preparedness; and, secondly, that diagnostic algorithms must be used in an equitable manner that does not discriminate among the medically injured, the aged, or those with comorbidities
Placing Legal Context In Context
Full text linkIn Biden v. Nebraska, Justice Barrett authored a concurrence in which she characterized the major questions doctrine as a linguistic canon that accounts for the “legal context” surrounding delegations of power. Some scholars have critiqued Justice Barrett\u27s concurrence on the grounds that empirical research suggests that ordinary readers do not account for “majorness” in the way that the major questions doctrine requires. This Essay argues that those critiques miss the mark because they conflate factual context with legal context. Justice Barrett\u27s concurrence should be considered within the broader textualist tradition of understanding “ordinary meaning” as a legal concept, and not simply an empirical fact. But to say that Justice Barrett\u27s concurrence should be understood within that broader textualist tradition is not to say that her concurrence is immune from criticism. To the contrary, this Essay contends that Justice Barrett\u27s concurrence does not account fully for legal context concerning the President\u27s lawmaking functions. The upshot is that textualists eager to embrace the major questions doctrine are better off reconceptualizing the doctrine as a substantive canon that polices the precise lines delineating the lawmaking powers vested in the President and Congress
Judicial Power and Potential Unconstitutionality: A Scholastic Perspective
Full text linkThis essay is an exercise in constructive retrieval of the traditional American understanding of judicial power with respect to judicial disregard of potentially unconstitutional laws when identifying rules of decision in constitutional adjudication.
This retrieval makes use of the act/potency distinction from Scholastic philosophy, Thomas Aquinas’s distinction between ius and lex, and John Marshall’s canonical account of the judicial application of the Constitution as a rule of decision in Marbury v. Madison to diagnose the cause of contemporary severability doctrine’s problems and to identify a basic framework for replacement doctrine.
I contend that the doctrinal pieces for the replacement of statutory severance with statutory disregard are already in place and that the Roberts Court should complete the work begun by Justice Thomas in his solo concurrence in Murphy v. NCAA (2018)
What Congress Needs to Break the Immigration Reform Stalemate
Full text linkThis article provides a policy proposal for an immigration reform package that could be successful in the modern-day Congress. It is the second article of a series that began with an analysis of why immigration reform has been unsuccessful over the past 30 years despite bipartisan support. That article argued that polarization combined with the framing of immigration by the media and political elites has caused the public to view immigration as a one-dimensional policy largely defined by border concerns, when in reality, it is a robust policy area that encompasses a number of various issues (i.e. family immigration, skilled and unskilled workers, entrepreneurs, asylum, border control, etc.). This successive article offers a policy proposal that could eclipse those concerns and provides a path forward for Congress and policy elites