The Catholic University of America Columbus School of Law
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Presidents, Congress, and Classified Information: The Constitutional Limitations and Processes Required to Declassify Information
Full text linkOn August 8 2022, the Federal Bureau of Investigation executed a search warrant at former President Donald Trump’s Mar-a-Lago Resort. The search uncovered hundreds of documents bearing various classification and governmental markings. On June 8, 2023, Trump was indicted in the Southern District of Florida on thirty-seven counts of unlawful retention of national defense information. Almost immediately after the search, the former President and his allies advanced a theory that Trump’s retention of classified documents was permissible because he had declassified the documents before leaving office on January 20, 2021. The former President has repeatedly mentioned these arguments in both civil and criminal litigation following the search, but has provided no evidentiary support for his contentions that he declassified the documents. While other aspects of the search warrant and criminal case have been adjudicated by the Eleventh Circuit and Supreme Court, no court has yet addressed the merits of the declassification defense. This Note will examine the propriety of former President Trump’s claims that he cannot be criminally charged with unlawful retention of national defense information because the information was declassified. First, it will examine the historical and Constitutional background of the executive classification system, including judicial precedents interpreting the scope of the power. Next, it will introduce parallel statutory frameworks that Congress has enacted to criminalize the retention of classified information, automatically classify certain types of information, and establish guidelines for the handling of Presidential records. Considering the concurrent authorities of the Executive and Legislative branches over classified information and government records, the Note will then analyze the merits of former President Trump’s claimed powers to declassify and retain classified documents as of right. It will conclude that a President does not have the plenary power to declassify all types of classified documents, and that any declassification must comply with established procedures to be effective. Lastly, the Note will conclude that based upon publicly available information, former President Trump did not follow any such procedures that would have led to the documents being properly declassified before he left office
The Battle Between Open Markets and National Security: How Limiting Investments into Foreign Technology Might Be Hurting National Security Goals
Full text linkAmerican Star Chamber: Online Misinformation, Government Intervention, and the Intellectual Matrix of the First Amendment
Full text linkJust as monarchs and clerical authorities struggled to respond to seditious and heretical writings enabled by the invention of the printing press, twenty-first century governments are experiencing a similar information revolution as a result of the digital age and a rising tide of what the United States has labeled online misinformation. Like the printing press, the Internet has enabled the spread of information at an exponentially lower cost and an exponentially higher speed as it extends the ability to publish thoughts and opinions to an increasingly diverse array of individuals. Although this was largely celebrated during the first two decades of the twenty-first century, the 2020s have been defined by growing concern about the quality of information that is spreading on the Internet, and the potential political, social, and health ramifications of a decentralized, unvetted wildfire of divergent ideas. Concerns about online misinformation have been growing since the late 2010s, but these concerns were thrust into the spotlight of United States policy by the sudden onset of the novel COVID-19 pandemic in early 2020. This paper explores the question of whether the American notion of free speech can survive the digital age, and an even greater question—whether it should
All’s “Fair” in Love & Copyright: Copyright’s Incentivization of Fiction Through the Second Fair Use Factor & Idea/Expression Dichotomy
Full text linkCopyright Law is supposed to encourage authors to create works of authorship, both factual and fictional. However, Copyright jurisprudence has developed to only protect expression, and not idea, to ensure the continued dissemination of knowledge. In solidifying this belief, two doctrines—Fair Use and the idea/expression dichotomy—allow for individuals to utilize other works of authorship without it being considered copyright infringement. Though widely used throughout the judicial system, the analysis for both the second Fair Use factor—Nature of the Copyrighted Work—and the idea/expression dichotomy are left without clear guidelines, leaving judges with an insurmountable task of determining what is and is not protectable under copyright, unknowingly imposing subjective, value-based judgments. By establishing that the determination of what is protectable expression and unprotectable idea in the idea/expression dichotomy is the same as the second Fair Use factor’s factual or fictional determination, this comment encourages courts to abandon the second factor in the Fair Use analysis, or require a more in-depth originality analysis of each individual work in the second factor. Through an analysis of four controversial and subjective, value-based Fair Use decisions, the unknown incentivization of fictional over fact-based works is revealed
The Truth Shall Set You Free
No full textThe Center for Law and the Human Person, a program of The Catholic University Columbus School of Law (Catholic Law), held the spring semester’s first Faith in Action lunchtime discussion on Tuesday, February 13. Entitled “The Truth Shall Set You Free,” the event featured the Rev. Dominic Legge, O.P., a professor of dogmatic theology at the Dominican House of Studies who prior to taking his vows practiced constitutional law as a trial attorney for the U.S. Department of Justice (DOJ).
This was the first Faith in Action lecture to be introduced by new Center co-director Marc O. De Girolami, St. John Henry Newman Professor of Law, who joined the Catholic Law faculty in January 2024.
The goal of the Faith in Action series, DeGirolami said, is “to expose law students to lawyers in the community, who will discuss living a life of faith.” Fr. Legge opened his remarks with a series of questions emphasizing the intellectual nature of a life of faith—among them, “What is a Catholic lawyer?” He observed that Catholic lawyers should integrate their lives of faith and their professional lives in their allegiance to the truth
Keep Your Hands to Yourselves: A Hands-Off Plea to Reconsider the Supreme Court’s Decision in Ingraham v. Wright
No full textThe Catholic University of America Columbus School of Law (Catholic Law) showcased its student body’s legal scholarship on Wednesday, February 21, by presenting the spring 2024 semester’s first installment of the Student Scholars Series. Wednesday’s presentation, entitled “Keep Your Hands to Yourselves: A Hands-Off Plea to Reconsider the Supreme Court’s Decision in Ingraham v. Wright,” was organized and delivered by Hope Gouterman (3L). Catholic Law lecturer Elizabeth Kirk, Co-Director of the Center for Law and the Human Person, provided the faculty response.
Focusing on the Eighth Amendment of the U.S. Constitution, Gouterman’s research examines it within the context of corporal punishment in schools. Referencing the Supreme Court’s decision in Ingraham v. Wright—which upheld the constitutionality of corporal punishment in schools and rejected Eighth Amendment applicability to such disciplinary action—her scholarship analyzes both the historical context of the Cruel and Unusual Punishment Clause, and the use of corporal punishment within U.S. public schools. Lest the Court reconsider Ingraham’s Eighth Amendment holding, her research additionally provides a stare decisis analysis, while nonetheless acknowledging the ramifications of the case itself and urging that Court reconsider the Eighth Amendment decision in Ingraham
Breach Of Faith: The Special Problem Of OSHA Performance Standards
Full text linkThis 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 and finds that many standards that OSHA has touted as performance standards fail to meet it. This Article also notes how, in rulemaking, OSHA has often styled many of its standards as “performance” standards that would give employers “flexibility” in compliance. It notes, however, that once enforcement begins, promises of such flexibility are often forgotten. The Article then raises some broader jurisprudential issues related to open textured performance standards. It concludes with the suggestion that in some regulatory situations, notwithstanding the arc of regulatory scholarship, specification standards may be more appropriate