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A Conversation with Judge Stephanos Bibas
No full textThe editors of the Catholic University Law Review are pleased to present as our final event of this symposium a conversation with the Honorable Judge Stephanos Bibas. Judge Bibas has served on the United States Court of Appeals for the Third Circuit since 2017. Before joining the federal bench, he served as a professor of law and criminology at the University of Pennsylvania, Law School, and as the director of the Penn Law Supreme Court Clinic. Judge Bibas previously clerked for Justice Anthony Kennedy on the Supreme Court and Judge Higginbotham of the U.S. Court of Appeals for the Fifth Circuit. He’s been described as one of the best writers on the federal bench, and as law students, I know we are all very appreciative of that. But perhaps most impressively, after having seen what it takes to pull off a day like this, he was the symposium editor for the Yale Law Journal
Preempting Paradigms: NSMIA, ESG Investing, and the Search for Market Integration
Full text linkThis Comment evaluates the recent lawsuit filed by the Securities Industry and Financial Markets Association (SIFMA) against the Missouri Secretary of State, alleging violations of the National Securities Markets Improvement Act (NSMIA), Employee Retirement Income Security Act of 1974 (ERISA), and commercial free speech. NSMIA significantly altered the regulatory landscape by preempting certain aspects of state securities laws, aiming to streamline regulations and foster national uniformity in securities markets. However, this federal preemption presents a complex dilemma when addressing the surge in ESG investing, where investors prioritize financial returns and social and environmental impacts. Accordingly, this Comment examines the interplay between federal and state securities regulations and their implication on Environmental, Social, and Governance (ESG) investing in light of NSMIA. It delves into the tension between federal preemption and state autonomy, evaluating how NSMIA\u27s preemptive measures affect states\u27 ability to implement ESG-related regulations tailored to local needs and values. It also highlights the pressing challenges faced by securities markets in accommodating the rapid rise of ESG investing, including the need for standardized ESG metrics, enhanced transparency, and regulatory clarity. Drawing on legal analysis and case precedent, this Comment concludes that the Missouri rule violates NSMIA and commercial free speech rights. It then proposes potential strategies for reconciling federal preemption with the growing demand for ESG integration in investment decisions. It advocates for collaborative efforts between federal and state regulators, market participants, and stakeholders to develop a coherent framework based on NSMIA and the Department of Labor’s approach to ESG that allows investors to pursue ESG objectives while respecting the principles of national uniformity and investor protection
A Conversation with Justice Clarence Thomas
No full textThe Center for the Constitution and the Catholic Intellectual Tradition (CIT) opened its academic year of programming by hosting a conversation with a Supreme Court Justice. On Thursday, September 25th, CIT welcomed Justice Clarence Thomas to address faculty, students, and alumni of Catholic Law. The conversation was moderated by CIT Affiliated Fellow Jennifer Mascott, an Associate Professor of Law with Catholic Law, nominee for the U.S. Court of Appeals for the Third Circuit, and a former law clerk for Justice Thomas.
Prof. Mascott then began the conversation with Justice Thomas on a personal note of admiration, praising his “warmth and heart for people of all walks of life,” as well as his tremendous jurisprudential impact. Catholic education quickly became a central theme of the conversation, as the Justice described both his upbringing and his approach to law. He attributed his career and success to the nuns that taught him–“my nuns,” as he referred to them. “It’s their victory.” He described how their perseverance, as well as his grandfather’s example of faith and gratitude, instilled in him a disposition of humility that defines his service on the Supreme Court
Kickbacks in the Healthcare Space: Resolving the Causation Split
Full text linkA three circuit split has left federal courts around the country struggling to find and apply the correct causation standard when faced with a False Claims Act suit which has been brought by way of the Anti-Kickback Statute. Uncertainty was created after one court found a lesser standard of causation was acceptable between the kickback and the false claim, while other courts found “but for” causation was required for these cases to survive. This comment analyzes the decisions of the relevant courts, as well as the common law origins of the False Claims Act, canons of construction, as well as relevant prior cases. This comment also analyze this current controversy being played out within a separate circuit, which has been faced with both methods and will soon resolve the issue. These analyses will culminate in the decision that, due to principles of statutory interpretation, previous holdings by numerous courts, as well as the plain meaning of the law, “but for” causation is required in these actions. Requiring “but for” causation does not open the floodgates for healthcare fraud, rather provides clarity when patient’s lives are on the line
Delivery Drivers Deserve the Whole Package: Package Delivery Drivers and the Transportation Worker Exemption of the Federal Arbitration Act
Full text linkPackage delivery is a ubiquitous part of modern American life, and package delivery driving is a fast-growing occupation in the United States. These drivers work long hours in a fast-paced, highly regimented environment, and because of arbitration agreements they are made to sign, they often cannot go to court to settle disputes with their employers. Under the Federal Arbitration Act (FAA), these arbitration agreements are generally “valid, irrevocable, and enforceable.” However, the FAA includes an exemption (known as the “Transportation Worker exemption”) that excludes arbitration agreements in “contracts of employment for seamen, railroad employees, or any other class of worker engaged in interstate commerce.” The Supreme Court has previously held that this exemption is “limited,” and only applies to transportation workers with a direct link to interstate movement. There is a circuit split around whether package delivery drivers fit into the exemption. The First and Ninth Circuits decided that package delivery drivers fit into the exemption based on a historical understanding of the FAA that embraces Supreme Court precedents from related statutes that more broadly define the boundaries of “engag[ing] with interstate commerce.” In contrast, the Fifth Circuit adopted a strict interpretation of the FAA and held that these drivers do not fit into the Transportation Worker Exemption. This Comment will argue that a broader historical understanding of the FAA is consistent with the scope and purpose of the statute and that package delivery drivers qualify for the exemption
The Timing of Claim Construction: An Analysis of Claim Construction Procedure and a Proposed Rule to Ensure Cost Effective and Timely Relief in Patent Infringement Cases
Full text linkThe federal government issues patents to encourage inventors to produce new and useful works and advance the state of the art.[1] The patent process is simple: in exchange for the right to exclude all others from making and using an invention for an established period, the inventor provides the government — and ultimately the public — with a full disclosure of how to make and use the invention.[2] Despite this full disclosure, the terms used in patent claims are subject to judicial interpretation during litigation.[3] Both the Supreme Court of the United States (“Supreme Court”) and the United States Court of Appeals for the Federal Circuit (“Federal Circuit”)—the two courts with appellate jurisdiction in patent cases[4]—have clearly held patent claims are matters of law[5] and provided procedures for interpreting them.[6] These supervising courts have not, however, provided guidance regarding the timing of claim construction, forcing lower courts to implement a variety of procedures,[7] thus creating the kind of uncertainty the Federal Rules of Civil Procedure (“FRCP”) seek to avoid.[8] This Article analyzes the claim construction procedures of the trial courts with the most active patent dockets and proposes a rule ensuring timely and efficient claim construction decisions. Part III of this article examines the local patent procedures developed by the trial courts with the most active patent dockets. Part IV analyzes those courts’ claim construction procedures to understand their effects on claim construction resolution. Finally, Part V proposes a uniform rule considering factors such as: (1) when claim construction occurs; (2) the number of claims in dispute, and; (3) the amount of time and space available to brief.
[1] See U.S. Const. art. I, § 8, cl. 8.
[2] 5 Donald S. Chisum, Chisum on Patents § 16.02 at 3 (2020) (quoting Van Kannell Revolving Door Co. v. Revolving Door & Fixture Co., 293 F. 261, 262 (1920)) (“[A] patent confers an exclusive right . . . [to] prevent any one from making, selling or using . . . the invention, but the monopoly goes no further than that.”) (emphasis added); see 37 C.F.R. § 1.75(d)(1) (2025).
[3] See J. Jonas Anderson & Peter S. Menell, Informal Deference: A Historical, Empirical, and Normative Analysis of Patent Claim Construction, 108 Nw. Univ. L.R. 1, 3-4 (2014) (“When patentees seek to enforce their rights in court, the interpretation of patent claim boundaries guides both infringement and validity analysis. . . . Thus . . . the task of claim construction falls to generalist federal district court judges, few of whom have technical training or experience with patent law.”).
[4] 28 U.S.C. § 1295(a)(1) (“The United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction— of an appeal . . . relating to patents”); 2 Roger M. Milgrim & Eric E. Bensen, Milgrim on Trade Secrets § 9.02, pt 1, at 1, 3 (2019) (recognizing that the Supreme Court can review Federal Circuit decisions).
[5] Markman v. Westview Instruments, 517 U.S. 370, 372 (1996) (9-0 decision) (holding that claims regarding construction of a patent are a matter of law for the court’s interpretation).
[6] See Phillips v. AWH Corp., 415 F.3d 1303, 1313 (Fed. Cir. 2005) (en banc) (finding that the terms of the patent’s specification are the best place to look when interpreting claims but acknowledging that extrinsic evidence may be needed).
[7] Megan M. La Belle, The Local Rules of Patent Procedure, 47 Ariz. St. L.J. 63, 93, 95-98 (2015) (analyzing the various ways local courts have attempted to handle patent procedure due to the lack of guidance).
[8] See Fed. R. Civ. P. 1 (describing the purpose of the Rules of Civil Procedure as a means of “secur[ing] the just, speedy, and inexpensive determination of every action and proceeding.”)
Panel 1: Rights, Remedies, and Rules of Decision
No full textPanel 1: Rights, Remedies, and Rules of Decision Moderator: Dean Megan La Belle, Senior Associate Dean for Academic Affairs, Catholic Law Panelists: Professor John Harrison (University of Virginia School of Law) and Professor Natalie Schmidt (Catholic Law
Family Law in Perspective, 6th Edition
No full textThe Sixth Edition of the Perspectives book continues the focus of providing students, practitioners, and observers with insight into the ever-changing parameters of laws pertaining to family structure and responsibilities. Specifically, this book addresses, among other topics, nonmarital cohabitation, establishment of paternity, premarital and marital contracting, assisted reproductive technology, marriage, and divorce. Recent cases and federal and state statutes address specific topics such as surrogacy agreements, division of marital and nonmarital property upon dissolution of cohabitation or divorce, child support guidelines, and establishing custody rights through parenting agreements or what is considered in the best interest of the child. And there is a continuation of discussion illustrating equal protection, liberty interest, and free exercise in the context of same-sex relationships, the safety of partners and children, and termination of parental rights and possible adoption of minors. The Sixth Edition also explores the impact on abortion of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’ Health Organization, overturning Roe v. Wade. The Perspectives book seeks to provide the reader with a grasp of what is currently the law and a glimpse into where the law may be going
Cutting Through the Gordian Knot: It’s Time to Revise Rule 17d-1 Under the Investment Company Act of 1940
Full text linkThis article reviews the legislative and administrative history of Section 17(d) of the Investment Company Act of 1940 and Rule 17d-1 under that Section, which broadly prohibit any affiliated person or principal underwriter of a mutual fund or other registered investment company (a “Fund”) or any affiliated person of such a person or underwriter, from participating in a joint transaction with the Fund unless an application regarding the transaction has been filed with and approved by the SEC. The author maintains that the Rule’s scope is far broader than what is necessary to achieve the statutory purpose of protecting Funds and their shareholders from being unfairly taken advantage of by Fund insiders. The article proposes that the SEC amend to the Rule to allow transactions with affiliated persons who are not connected with management of the Fund, relying on a Fund’s independent directors to protect the interests of the Fund and its shareholders