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Don’t Cite Funk
Get PDFFor patent eligibility the Supreme Court continues to rely on its 1947 opinion in Funk Brothers Seed v. Kalo Inoculant. It is one of the most cited cases for patent eligibility and the Supreme Court relies heavily upon it. It forms one of the foundations of the current eligibility test in Mayo v. Prometheus. This article argues that this reliance is in error. Funk is just not appropriate for modern patent eligibility. Interestingly this view is not new. Ever since its appearance in Flook, the Supreme Court’s use of Funk has been dogged by criticism that faults the Court for improperly using an obviousness case for subject matter eligibility purposes. The Court has noted these criticisms but has flatly dismissed them. The critiques persist but they have remained a minority view in the patent academy. This article argues that the critics have had it right all along but that they have not gone far enough. Funk is indeed an obviousness case but that alone has not been sufficient. The missing link is an argument about statutory interpretation. What has not been fully appreciated is that the 1952 Patent Act changed the meaning of the patent eligibility statute. Curiously, this is true even though the literal text of the provision did not change. But once that change is understood, it becomes clear that not only is Funk an obviousness case but more importantly it cannot be a patentable subject matter case. When properly understood, the answer is clear. The Court should no longer cite Funk for patent eligibilit
Unreimbursed Medical Expense Tax Deductions in Light of Per-and Polyfluoroalkyl Substances
Get PDFPer– and Ployfluoroalkyl Substances (PFAS) have been used in a wide variety
of products due to their ability to reduce friction. However, studies have shown
that exposure to PFAS can cause harmful effects in humans. In fact, it has been
called a “national emergency” in testimony before Congress. As a result, there
have been efforts to limit exposure to the disease-causing substances through
abatement and avoidance. The Internal Revenue Code, through the
unreimbursed medical expense tax deduction of I.R.C. § 213, may offer one
policy solution for individuals seeking to participate in abatement activities.
This comment explores the development and implementation of I.R.C. § 213,
applies the interpretation and application of I.R.C. § 213 to efforts individuals
can take to limit their exposure to PFAS, and makes recommendations that the
Internal Revenue Service, the judiciary, and Congress could take to clarify the
application of I.R.C. § 213 as it relates to the avoidance of PFAS and other
disease-causing substances
Establishment as Tradition
Get PDFTraditionalism is a constitutional theory that focuses on concrete political and cultural practices, and the endurance of those practices before, during, and after the ratification of the Constitution, as the presumptive determinants of constitutional meaning and constitutional law. The Supreme Court has long interpreted traditionally but now says explicitly that it uses a method of “text, history, and tradition” in several areas of constitutional law. Foremost among these is the Establishment Clause. This Essay examines two questions about traditionalism, both of which concern the Establishment Clause in distinct but related ways. First, why has traditionalism had special salience in this area? Second, is traditionalism more a mood or disposition than a theory, more a matter of the heart than of the head?
On the first matter, traditionalism did not materialize out of thin air in the 2021 term, and it has had unusual power in the interpretation of the Establishment Clause for decades. The question is why, and answering it has implications for constitutional theory more generally. For if some do- mains of constitutional law are more amenable than others to traditionalist interpretation, the same may be true of other theories. The answer for the Establishment Clause is that establishments are made up of politically foundational traditions. Political establishments are constituted by the concrete, authoritative, and enduring practices and institutions that make up the essential settlements of a polity. To interpret the phrase, “Congress shall make no law respecting an establishment of religion” is immediately to be directed by the text not to an idea or an abstraction, but to some- thing solid, authoritative, and lasting—“an establishment.” This is a reading supported by the other uses of “establishment” and its cognates in the Constitution. “An establishment of religion,” therefore, is a political practice that sits outside the limits of the constitutionally permissible practices of the American political establishment. Unconstitutional establishments of religion depend upon the prior existence of constitutional establishments, and those establishments are often instantiated in a people’s most powerful political traditions. More than certain other domains of constitutional law, the text of the Establishment Clause is inherently traditionalist because its meaning takes shape against a network of concrete, authoritative, and enduring institutional political practices. And the practices of establishment are essential to fostering the civic trust that is necessary for any polity’s survival. Without them, the political community fractures. In time, it dies.
As for the second question, some critics have argued that traditionalism is not a full-fledged theory so much as a mood or disposition and that traditions are too manipulable and insubstantial to form the raw material for a theory of constitutional meaning or constitutional law. The question matters because it concerns whether traditionalism is an independent constitutional theory in its own right or, instead, at most a feature of others, dependent on their methods and justifications. I will argue that traditionalism is as much a constitutional theory as any of its rivals, though that claim will depend on just what it means to count as a theory. It is, in fact, its application in Establishment Clause cases that most clearly demonstrates its comparative systematicity, generality, and predictability of application, three critical elements for qualifying as a constitutional theory. Traditionalism is, to be sure, not a decisional algorithm, but neither is any attractive constitutional theory; it acknowledges and even welcomes reasonable disagreement within shared premises, as do other plausible theories. Still, the critics are in a sense correct: traditionalism has a charactero- logical or dispositional component that other approaches may lack, and this, too, is illustrated in its application to the Establishment Clause. Its character, and the kind of disposition it develops in interpreters subscribing to it, is preservative and custodial. That is not a flaw but a distinguishing virtue. It makes traditionalism preferable to other interpretive possibilities because it makes traditionalism more than just an interpretive theory, reflecting and shaping character even as it provides a coherent framework for adjudicating constitutional cases
Traditionalism Rising
Get PDFConstitutional traditionalism is rising. From due process to free speech, religious liberty, the right to keep and bear arms, and more, the Court made clear in its 2021 term that it will follow a method that is guided by “tradition.”
This paper is in part an exercise in naming: the Court’s 2021 body of work is, in fact, thoroughly traditionalist. It is therefore a propitious moment to explain just what traditionalism entails. After summarizing the basic features of traditionalism in some of my prior work and identifying them in the Court’s 2021 term decisions, this paper situates these recent examples of traditionalism within this larger, longstanding interpretive method. Contrary to many claims, there is little that is entirely new or unexpected, other than the Court’s more explicit embrace of traditionalism this term than in the past. The paper then distinguishes traditionalism from originalism, focusing especially on what some originalists have called “liquidation.” Finally, it raises and considers one comparatively straightforward and two more difficult problems for traditionalism: (a) the problem of selecting the operative “level of generality” for any tradition; (b) the problem of tradition’s moral justification, offering possibilities based on the connection between enduring practices and (1) human desires, (2) virtues or legal excellences, or (3) natural law determinations; and (c) the problem of traditionalism’s politics
Playing God in the 21st Century: How the Push for Human Embryonic Germline Gene Editing Sidelines Individual and Generational Autonomy
Get PDFEvery four and a half minutes a child with a genetic birth defect is born in the United States. For some, these conditions are treatable and manageable, but sadly for others, they are a death sentence. Congenital malformations and chromosomal abnormalities are the leading cause of infant mortality. CRISPR-Cas9 presents hope for the future, a liberation from the heritable genetic shackles that a child would otherwise be trapped in. With such optimism for future applications of germline gene editing, there are also great concerns with what national and global limitations and auditing must be in place to permit “genetic hedging.”
Policy makers and the public must consider the fact that human germline gene editing does not just apply to family lines of those that consciously engage in genomic modification. It would eventually change the heterogeneity of humankind in the next stage of factitious evolution. Whose choice is it really to adopt this technology, and in what circumstances should the use of “genetic scissors” be morally, ethically, and legally permitted? May a parent consent on behalf of their unborn child? Will fetal interests supersede those of their parents? Or will government set aside individual, generational, and parental autonomy by mandating medical intervention in certain genetic circumstances?
This note debates current and potential American regulations on embryonic germline gene editing in the near future, and discusses the constitutional and ethical concerns that policymakers (and CRISPR-Cas9 critics) will appraise (and be promulgated to safeguard against). For American regulation on germline gene editing, three events must occur: 1) The Federal Drug Administration (FDA) rider must be repealed in future congressional appropriations bills, allowing for the FDA to consider clinical trials of embryonic research; 2) The FDA must adopt strict, narrow regulations allowing application of CRISPR in only a finite number of instances; and 3) the nature of an embryo must be firmly classified as quasi-property, therefore lacking constitutional standing as a legal “person.”
There remains an issue: as fetal personhood legislation strengthens and becomes far more pronounced throughout the country, simultaneously, and more inconspicuously, so does embryonic personhood. Agency rights and constitutional protections attach upon the categorization as a “person,” no matter how nascent life may be. If CRISPR were to be implemented in the wake of embryonic categorization as a recognized individual, the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment would be directly implicated
One Small Step on TikTok, One (Possibly) Giant Leap for the Dance Community: How TikTok Spearheaded a Change in the Seemingly Stagnant Field of Copyright Law
Get PDFGerman Jewish Women Lawyers in the Third Reich
No full textThe Catholic University of America Columbus School of Law (Catholic Law) hosted the opening of a cosponsored exhibit entitled “German Women Jewish Lawyers in the Third Reich” on Wednesday, October 18. Catholic Law was joined by the Embassy of the Federal Republic of Germany and the Deutscher Juristinnenbund (“German Women Lawyers Association”) in sponsoring this exhibit.
This exhibition, which includes biographical panels currently displayed in the Louise H. Keelty and James Keelty, Jr. Atrium, examines the lives and experiences of seventeen Jewish women who practiced law in Germany prior to 1945. These women were pioneers who spearheaded the creation of the legal profession in the Weimar Republic, thus suffering at the hands of the Third Reich. Those who were not murdered immigrated either to the United Kingdom or the United States, in the process unequivocally struggling to recreate their careers in the legal profession. The descendants of some of these women participated in a panel discussion moderated by American University\u27s director of its Jewish Studies Program, Dr. Lauren B. Strauss
Judicial Clerkship Opinion Writing Conference
No full textOn February 23-25, 2023, The Catholic University of America Columbus School of Law (Catholic Law) in Washington, D.C., hosted 35 rising law clerks from 25 different universities across the country who will be serving in the chambers of Federal Circuit Courts, Federal District Courts, and State Appellate Courts in the upcoming year. The conference was coordinated by Professor A.G. Harmon, Associate Dean of Bench and Bar Programs.
The three-day, in-person conference provided the conferees the opportunity to learn the particulars of judicial opinion writing—a unique conference focus undertaken by the Law School to serve both the bench and bar by training law students in this important skill
Status of the Second Amendment
No full textOn November 16, 2022, The Catholic University of America Columbus School of Law (Catholic Law) Federalist Society held a discussion on the status of the second amendment. Katherine Williams (3D), president of Catholic Law\u27s Federalist Society, opened the program and introduced Professor George Moscary, University of Wyoming College of Law. Moscary spoke to the group and framed his discussion around the legal landscape after New York State Rifle & Pistol Association v. Bruen. Following his presentation Moscary took questions from the students in attendance