The Catholic University of America Columbus School of Law
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Toothless Trade? Implications of the Federal Circuit’s ClearCorrect Decision for the Enforceability of Intellectual Property Protections in Digital Trade under USMCA
Get PDFDigital trade is growing faster than trade in goods and services and comprises a key area for innovation and intellectual property concerns. The United States-Mexico-Canada Agreement (“USMCA”) acknowledged this development by including chapters devoted to both digital trade and intellectual property. In 2015, the Federal Circuit held that the International Trade Commission (“ITC”) does not have jurisdiction over unfairly traded digital goods. Without exclusion orders issued by the ITC, the United States lacks a powerful tool to enforce the USMCA provisions protecting intellectual property in unfairly traded digital goods. This comment explores the implications of the Federal Circuit’s 2015 ClearCorrect decision for the United States’s enforcement obligations under USMCA and provides options to intellectual property rights holders and practitioners interested in protecting the domestic industry’s digital goods from intellectual property rights infringement
Black Lives Matter and the Push for Colonial-Era Cultural Heritage Restitution
Get PDFThe influence of the Black Lives Matter movement extends into U.S. museums in the form of calls for “decolonization” of collections comprised of art and artifacts from Africa and other colonized areas. As a result, the accompanying legal and ethical questions surrounding these artifacts now figure prominently in the museum industry. This Comment analyzes why the current U.S. cultural heritage law framework does not accommodate colonial-era African artifacts. This is due to few of these artifacts being subject to legal claims under current laws, African artifacts not having protection as a special classification, and the lack of enforcement mechanisms in museum ethical codes.
To achieve lasting change consistent with the Black Lives Matter movement, there is a need for positive legislation in the United States, coupled with strong museum association guidance, that would compel museums to inventory African art and artifacts in their collections, to publicize this information, and to follow a set of guidelines for considering the return of these items, where appropriate, to their communities and countries of origin. This proposed solution is based upon museum industry standards as well as aspects of existing special legislation for Native American objects and Nazi-era looted artworks proven to produce beneficial results
Short Circuiting the Administrative Judiciary: A response to Linda Jellum
Get PDFLinda Jellum provides a powerful analysis of the status of the exhaustion process for the SEC administrative judiciary and more broadly of the entire administrative judiciary. Many of her arguments are telling and on point. I disagree with a number of her technical and statutory arguments, and even more so the consequences of her analysis for the administrative state as we know it.
Jellum\u27s argument is that Congress did not intend to preclude district courts from hearing constitutional challenges to SEC adjudications because agency ALJs are not the right adjudicators to hear challenges to the constitutionality of their own operations
Federal Protection of Illegal Short-Term Rentals: How the Protecting Local Authority and Neighborhoods Act Will Hold Airbnb Liable, Enforcing Local Regulations
Get PDFSection 230 has come under scrutiny from academics and politicians, leading to calls on lawmakers to limit, or even end, Section 230’s immunity for Internet corporations; however, less attention has been given to the effects of Section 230 on the legal landscape in local, off-line communities. Online providers of short-term rental (STR) services such as Airbnb have used Section 230’s protection to shift the burden of complying with local laws and lease agreements onto the users listing STRs. By wielding Section 230 as both a sword and shield in litigation over their listings that violate local laws and lease agreements, these providers leave landlords and local governments seemingly without recourse. The PLAN Act (the Bill for Protecting Local Authority and Neighborhoods Act), proposed in the House in the 117th Congress in 2021, would remedy this overlooked and unjust result of Section 230’s protection. This article seeks to demonstrate why the PLAN Act must be passed to prevent further unfair application of Section 230
The 2022 Conference Of Religiously Affiliated Law Schools: Reflections On Faculty Vocation And Support
Get PDFIn the United States, numerous law schools identify themselves as “religiously affiliated.” There are many opportunities and challenges that come with such affiliation. What “religiously affiliated” may mean for a law school’s faculty is a particularly critical aspect of this question. I was grateful to have been invited to reflect on what religious affiliation might mean for faculty hiring at the “Past, Present, and Future of Religiously Affiliated Law Schools” conference. What follows are reflections that consider not merely that question—important as it is—but also explore what happens after the hiring decision to make the vocation to teach at a religiously affiliated school a happy and, yes, holy one. It will begin by examining what I believe to be the four primary types of religiously affiliated law schools. Then, it will briefly discuss some considerations for the hiring process. It will then explore some of the ways in which religiously affiliated law schools have the opportunity and the obligation to support faculty who seek to live a full vocation to academic life in a religiously affiliated law school. It will conclude with some personal reflections on my three decades living that vocation at a religiously affiliated law school
The Immorality of Originalism
Get PDFThe central claim of this essay is that in interpreting the U.S. Constitution, it is immoral to choose original intent over social welfare, broadly conceived. Once this argument is laid out and defended on its own terms, I support the central claim with a variety of arguments, including the defective process pursuant to which the Constitution was enacted, the deeply flawed substantive content of the Constitution, the incongruity of fidelity to the views of a generation of revolutionaries, the current virtual imperviousness of the Constitution to amendment, the failure of the Constitution to resolve fundamental questions concerning the allocation of power within the government, which leads to dependence on the un-democratic Supreme Court to resolve important and controversial social issues and finally originalism’s tendency to force otherwise honorable people to lie or obfuscate about the reasons for their official decisions
Climate Discrimination
Get PDFThis Article focuses on the coming legal plight of workers in the United States, who will likely face discrimination as they search for work outside their home states. The Article takes for granted that climate change will have forced those workers across state and international boundaries, a reality dramatically witnessed in the United States during the Dust Bowl of the 1930s. During that environmental emergency (and the devastation it wrought), workers were forced across boundaries only to be violently discriminated against upon arrival in their new domiciles. Such discrimination is likely to recur, and it will threaten the livelihoods of workers across the country, especially the poor and workers from minority communities.
While it may be tempting to believe that the current array of federal employment-discrimination laws is both comprehensive and flexible enough to meet the challenges ahead, the prevailing interpretations of federal employment-discrimination laws show that applicable federal law will not be able to respond. Specifically, the main federal statutes targeting employment discrimination, including the Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, Title I of the Americans with Disabilities Act of 1990, and 42 U.S.C. § 1981 (1991) will be of limited utility to judges, workers, lawyers, and employers, among others, if Congress does not amend them.
The Article is novel in at least three ways. First, it is the only article addressing the confluence of climate change and employment discrimination in the United States. Second, the Article is innovative in an additional way—it argues that groundbreaking recent precedent from the Supreme Court of the United States interpreting a federal employment anti-discrimination statute, notably Bostock v. Clayton County, does not cover employment discrimination based on climatic displacement. Third, the Article is the first to propose a number of climate-related changes to federal employment-discrimination statutes to facilitate the work of judges, workers, lawyers, and employers, among others. The Article argues that in the absence of protection under federal law, claimants will likely turn to state employment-discrimination laws, state common-law causes of action, and constitutional claims under federal law that likely will provide inadequate relief