The Catholic University of America Columbus School of Law
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Welcome & Introduction of Keynote Speaker
No full textThe Symposium opened with a welcome from Jennifer Kaplan, Editor-in-Chief, Catholic University Law Review Vol. 72, and Megan La Belle, Catholic University Law Review Faculty Advisor and Professor of Law, Catholic Law. A special thanks was given Rev Raymond C. O\u27Brien, Professor Emeritus, who helped secure the sponsors of the 2023 Law Review Symposium, Tenn and Tenn, Attorneys at Law, Manchester, NH (James J. Tenn, Jr. \u2791)
The Curious Case of Tort Liability For A Defective Product That The Defendant Did Not Make, Sell, Or Distribute
Get PDFRarely does the United States Supreme Court consider and decide an issue of tort law, especially one that does not implicate any aspect of federal constitutional law.
The problem of bare-metal equipment is just such an issue, taken up and addressed by the U.S. Supreme Court less than three years ago in the case of Air and Liquid Systems Corp. v. DeVries. Despite the Court’s opinion, the question continues to generate different responses from state courts and fails to enjoy much accord or consensus at the state-law level, where it has the greatest practical impact. The problem presented to the courts by bare-metal equipment is determining under what circumstances the manufacturer or seller of a product that is reasonably safe at the time of sale, and then made unreasonably unsafe by the post-sale addition of defective parts manufactured and supplied by third parties, may be liable to a person injured by that combined equipment.
Upon examination, this turns out to be a more difficult and subtle problem than it may first appear. Especially for courts not accustomed to analyzing products liability issues, there can be a temptation to analyze the problem somewhat casually—thereby failing to securely situate it within the specific and quite different doctrinal frameworks in which it can arise. Some federal courts, including the U.S. Supreme Court, have yielded to that temptation. As a result, these courts have not sufficiently appreciated that this issue presents very different conceptual challenges and requires dramatically different consideration and analysis, depending on whether it arises in the context of a negligence claim or in the context of a strict products liability claim.
Failure to appreciate the different nature of the problem in the context of these two quite different causes of action has led some courts, including the U.S. Supreme Court, to offer a single, univocal approach to this problem that both oversimplifies and overcomplicates the matter. Specifically in the case of the U.S. Supreme Court, its holding, opposed by a vigorous dissent, produces a set of rules that are at the same time both inconsequential in the negligence context and conceptually incoherent in the context of a strict products liability claim.
This article describes and analyzes this fascinating issue, including the recent U.S. Supreme Court decision which squarely addresses it. It proposes an approach to future consideration of the problem by courts that grounds the analysis in the specific doctrinal frameworks within which the issue may arise and explains the very different qualities and challenges that the issue presents in these different doctrinal contexts
Engines of the Ruling Party : The Establishment Clause and the Power Politics of Managing Diversity
Get PDFThis Essay argues that the Supreme Court\u27s Religion Clauses jurisprudence since Everson v. Board of Education is best understood as part of an ongoing effort by the Court to manage the racial, religious, and cultural politics of the nation. Since its infamous decision in Dred Scott v. Sandford, the Court\u27s race and sex discrimination jurisprudence offers equally compelling examples of the ways in which the Justices have sought to sought to control-or manage - the racial, ethnic, and cultural composition of the nation\u27s major culture-forming institutions (i.e., to manage diversity ). Its Religion Clauses jurisprudence, by contrast, offers the clearest examples of how it has utilized its Article III power to adjudicate to manage the content of the cultural politics of power
Judicial Selection That Fails the Separation of Powers
Get PDFExecutive power should be constrained by checks and balances. The United States’ long and strong tradition of concerns about executive power, and its complementary tradition of Madisonian checks and balances on and to the executive, include the selection of supreme court justices. Neither the U.S. Constitution nor the constitution of any state places solely in the executive the power to appoint a justice to begin a new term on the (federal or state) supreme court. However, several states fail to constrain gubernatorial power in selecting justices to finish a term already started by another justice and these interim appointments are the norm in several such states. This Article argues that states with interim supreme court appointments should subject the governor’s appointment power to a nominating commission or a confirmation vote. And this Article argues that the urgency of adopting such a constraint on the governor is highest in states—Minnesota, Georgia, and Oregon—in which the supreme court acquires most of its new members through interim appointment, and in which an interim appointment nearly always leads to a safe multi-term position on the supreme court. Supreme court appointments are simply too important to leave to the unchecked discretion of a single person
Creating a Trust Through Delegation
Get PDFAging in America has precipitated increasing use of planning for incapacity devices, which include forms creating powers of attorneys ( POAs\u27). Simple forms may be found online, or they may become part of a sophisticated estate planning portfolio drafted by professionals. Resultingly, to support portability, enforceability, and protection against financial exploitation of vulnerable adults, the National Conference of Commissioners on Uniform State Laws approved the Uniform Power of Attorney Act in 2006 ( UPOAA ), which has been adopted by more than half of United States jurisdictions. One of the Act\u27s provisions requires an express grant of authority contained within the principal\u27s POA before an agent designated by the principal may create, amend, revoke, or terminate a trust. As a result, a general grant of authority to an agent is insufficient to permit an agent to create an inter vivos trust, revocable or irrevocable. This component is counterproductive because it lessens the agent\u27s fiduciary effectiveness, particularly given the flexibility and management advantages that trusts bring to modern estate planning.
The rationale for requiring express authorization is that it protects the principal from possible financial exploitation by the agent, a serious and prevalent form of abuse adversely affecting many older Americans. And yet, states and the federal government have enacted various legislative protections, such as mandatory reporting, immunity for reporting, withholding funds when there is reasonable suspicion of financial abuse, increased statutory avenues for elder financial abuse prosecutions, and educational programs for financial officers and enforcement agencies. In addition, there are fiduciary restraints incorporated into the UPOAA and current trust law enacted in all states. With these advancements, it is far more likely today that financial exploitation by agents will be identified and perpetrators punished.
This Article argues that provisions in POA statutes, specifically the UPOAA, requiring an express grant of authority before an agent may create an inter vivos trust is violative of public policy and statutes should be amended to permit agents to create, amend, revoke, or terminate a trust under a general grant of authority. The public policy argument is based on the abundant use of inter vivos trusts, the acceleration of reporting and prosecution of reasonable suspicions of financial exploitation, and the unawareness of a significant number of signers of POAs that a general grant of authority will not authorize their agents to take advantage of the substantial benefits associated with trusts and estate planning
Developments in the Regulation of Crypto Assets: European Update
No full textThe Securities Law Program (SLP) at Catholic Law held a discussion with Mark Browne, partner and Head of the Asset Management and Funds practice of the Irish law firm Clerkin Lynch LLP. The discussion focused on the regulation of cryptocurrencies in the European market and was moderated by Jack Murphy, director of SLP.
The markets for cryptocurrencies and other assets are global and therefore are cross-border by their very nature. In many jurisdictions, including the United States, the approach to regulating crypto assets has been undertaken piecemeal, as regulators and legislators have struggled to develop a set of rules that protects investors without discouraging innovation in the marketplace
Mysterizing Religion
Get PDFIn this short essay, I suggest that mysterizing religion may change the stakes in some of the most controversial contemporary conflicts in law and religion. To mysterize (not a neologism, but an archaism) is to cultivate mystery about a subject, in the sense described above-to develop and press the view that a certain subject or phenom-enon is not merely unknown, but unknowable by human beings. At the very least, such mysteries are unknowable by those human beings who have charge of the secular legal order of earthly human affairs, Paul\u27s princes of this world. That is what I propose to do for religion in American law, and what may well alter the landscape of the conflicts between advocates of religious liberty and the forces opposing them. Fortunately, I have had some help. The mysterization of religion seems already to be well under way in American constitutional law. It is a central feature of the Supreme Court\u27s current conception of religion. Religion\u27s mysterization, therefore, may be as much an exercise in the description of portions of the law as it now is, as a prescriptive project about what that law should become
Panel II: Global Environmental Inequality - Part 1
No full textAfter another break, the second panel opened and discussed global environmental inequality. This panel was moderated by Álvaro Paúl, Visiting Assistant Professor of Law, Catholic Law, and Associate Law Professor, Pontificia Universidad Católica de Chile. The panelist opened with an overview of their careers and examples of global environmental inequality. The panelist on the second panel were Hana Heineken, Senior Attorney, Climate Financial Strategies, Center for International Environmental Law; Lucia Silecchia, Associate Dean of Faculty Research and Professor of Law, Catholic Law; and Elissa Torres-Soto, Staff Attorney, Environmental Law Institute
Panel II: Global Environmental Inequality - Part 2
No full textAfter another break, the second panel opened and discussed global environmental inequality. This panel was moderated by Álvaro Paúl, Visiting Assistant Professor of Law, Catholic Law, and Associate Law Professor, Pontificia Universidad Católica de Chile. The panelist opened with an overview of their careers and examples of global environmental inequality. The panelist on the second panel were Hana Heineken, Senior Attorney, Climate Financial Strategies, Center for International Environmental Law; Lucia Silecchia, Associate Dean of Faculty Research and Professor of Law, Catholic Law; and Elissa Torres-Soto, Staff Attorney, Environmental Law Institute. After the panel finished their discussion, they also took questions from the audience