The Catholic University of America Columbus School of Law
Not a member yet
5983 research outputs found
Sort by
Bruen and Beyond: The Future of Tiers of Scrutiny in Constitutional Analysis
No full textThe Federalist Society and The Law and Public Policy Program (LPP) at The Catholic University of America Columbus School of Law (Catholic Law) hosted Professor J. Joel Alicea, Co-Director of the Project on Constitutional Originalism and the Catholic Intellectual Tradition, the evening of Wednesday, April 12, 2023.
Alicea discussed the future of the “tiers of scrutiny” method of constitutional analysis in light of the Supreme Court’s decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen. In his presentation, Alicea explained the tiers of scrutiny, arguing that, following Bruen, the Court will likely reject this method in other areas of constitutional law. He additionally provided reasons for why the Court, in his view, should continue rejecting the tiers of scrutiny
Conflicts of Interest at an Organization’s Highest Authority: How the District of Columbia’s Rules of Professional Conduct Can Fail to Protect Private Organizations
Get PDFThis Article examines how the District of Columbia’s incomplete incorporation of the Model Rules of Professional Conduct into its own Rules of Professional Conduct has created a scenario in which wrongdoing inside a private organization can flourish. In 2002, following the Enron scandal, the American Bar Association (ABA) revisited and revised its Model Rules of Professional Conduct. The ABA nevertheless took a conservative route, rejecting rules long proposed by experts which would have permitted attorneys aware of corporate crimes, fraud, and other wrongdoing to report their concerns to individuals or entities outside the organization’s reporting structure. Additional scandals unfolded contemporaneous with the ABA’s revisions, instigating federal legislation, the Sarbanes-Oxley Act of 2002. Regulations promulgated under that Act included the reporting out opportunity long sought by ethics experts. In light of the new federal legislation, the ABA, in 2003, finally passed a revised Model Rule 1.13 which requires attorneys to report wrongdoing up the ladder to an organization’s highest authority and permits those attorneys to report out such wrongdoing in the event the highest authority failed to respond appropriately.
Unfortunately, the District of Columbia did not heed these lessons. Citing antiquated notions of client confidentiality, the District adopted an approach which requires an attorney to report wrongdoing up the ladder but then fully accept the results of that reporting, even if the highest authority to whom the attorney reports the misconduct is the one engaging in the misconduct. In so doing, the District has created a structure which incentivizes the termination of ethical attorneys in order to cover up corporate wrongdoing. This Article recommends changes to the District of Columbia’s Rules of Professional Conduct which will enable the District to take the lead in promoting a bar committed to ethical conduct and appropriate corporate governance
Sacred Spheres: Religious Autonomy As An International Human Right
Get PDFHow should courts resolve thorny human rights disputes that arise within religious groups? According to an emerging international consensus, they shouldn’t. When a case involves sensitive internal decisions by a religious organization, such as choosing who is qualified to teach the faith, courts are increasingly taking a hands-off approach. This global consensus has formed across international treaties, tribunals, and domestic courts in European and American nations. Every major human rights instrument and many international and domestic courts recognize that religious freedom must extend to religious communities, especially houses of worship and schools where believers gather to practice their faith and impart it to the next generation.
This article conducts a comparative analysis of religious autonomy across international human rights instruments, international courts, and a selection of individual countries. We argue that the autonomy of religious institutions is an internationally recognized principle that protects decisions related to internal religious governance, including who teaches the faith to the next generation. To allow secular governments to dictate who teaches the faith and how it is taught in spheres explicitly governed by church leaders would violate that religious autonomy. Instead, we urge international courts to provide clarity and guidance to countries seeking to apply thereligious freedom provisions in their own laws by respecting the ability of religious organizations to govern who teaches their doctrines.
The recent case of Pavez v. Chile at the Inter-American Court of Human Rights provides a counter-example to the growing consensus. There, the court found Chile liable for discrimination when it respected a local church decision regarding who was qualified to teach Catholicism to students in a devotional setting in a state-run school. Rather than engage with the reasoning of the international law on church autonomy, the court acknowledged this body of law, but declined to apply it in the case, maintaining that the state should retain authority over the church in who teaches the faith. In so doing, the Court attempts to force the separate spheres of church and state to merge, asserting control over the church and its relationship with the government. Without a well-reasoned theory behind this attempt, however, it is unlikely to be repeated in other serious adjudicative bodies
134th Commencement Address
No full textVideo is not available.
With Dr. Peter K. Kilpatrick, President of The Catholic University of America, standing beside her, Mary Graw Leary, Senior Associate Dean for Academic Affairs and Professor of Law, introduced Rachael Denhollander, recipient of The Catholic University of America’s President’s Medal. Denhollander, a lawyer and former gymnast, was the first woman to publicly denounce and pursue criminal charges against USA Gymnastics’s former team doctor Larry Nassar. Named “the bravest person I have ever had in my courtroom” by trial judge Rosemarie Aquilina, Denhollander’s pursuit of justice has demonstrated to fellow survivors the unassailable force with which she has refused to let her victimization define her. Indeed, this sentiment permeated the Basilica as well, and President Kilpatrick, referencing this feat later, during his closing remarks, labelled her the representation of “moral courage in the face of adversity.” Following her acceptance of the award from President Kilpatrick, Denhollander addressed the Class of 2023, challenging its graduates to follow the charge written millennia ago in the Book of Micah and chiseled—more recently, in 1994—into the west façade of the Columbus School of Law building: “Do justice, love mercy, and walk humbly with your God” (Micah 6:8)
Assisted Suicide, Forced Cooperation, and Coercion: Reflections on a Brewing Storm
Get PDFBecause government funds to institutions and individuals finance a significant amount of medical care in the United States, the prospect of conditions or “strings” attached to that funding is an ever-present specter
Practice-Based Constitutional Theories
Get PDFThis Feature provides the first full-length treatment of practice-based constitutional theories, which include some of the most important theories advanced in modern scholarship. Practice-based constitutional theories come in originalist and nonoriginalist—as well as conservative and progressive—varieties, and they assert that a constitutional theory should generally conform to our social practices about law. If, for example, it is part of our social practices for courts to apply a robust theory of stare decisis, then a constitutional theory that would require a less deferential theory of stare decisis is a less persuasive theory. Practice-based constitutional theorists would usually see it as a defect if a theory required a significant change in our social practices, such as overruling large swathes of landmark precedents.
But why should we care whether a constitutional theory conforms to our social practices? That normative question requires a normative answer, yet there has been very little scholarship systematically analyzing the justifications often given by practice-based theorists for conforming constitutional theories to our social practices. This Feature identifies and examines the primary justifications offered for practice-based constitutional theories: legal positivism, reflective equilibrium, and the stability that comes from an overlapping consensus. In doing so, it also provides the most in-depth analysis of the nature of practice-based constitutional theories to date.
The justifications usually offered by practice-based theorists reflect the influence of H.L.A. Hart and John Rawls on American constitutional theory. Although each justification is sophisticated, none can bear the normative weight that would justify conforming constitutional theories to our social practices. A constitutional theory cannot ignore our social practices, but it is the theory that can justify those practices, not the other way around
