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Why Originalism is Consistent with Natural Law: A Reply to Critics
Get PDFConstitutional theorists on the right are engaged in a debate about the moral foundations of originalism, the theory that government officials, including judges, are bound by the original meaning of the Constitution. I recently offered a defense of originalism’s moral authority grounded in the natural-law tradition. Harvard law professor Adrian Vermeule and his sometime co-author, University of Liverpool law professor Conor Casey, recently responded to my draft article, as did another supporter of Vermeule’s theory, lawyer and blogger Pat Smith. In the interest of furthering this important discussion about the moral foundations of originalism, I respectfully offer this reply
Transparency and Reliance in Antidiscrimination Law
Get PDFAll antidiscrimination laws have two structural features – transparency and reliance – that are important, even central, to their design, but have gone largely unnoticed. On transparency, some laws, like the recent salary-ban laws, attempt to prevent the employer from learning about the disfavored factor on the theory that an employer cannot rely on an unknown factor. Other laws require publication of the disfavored factor, such as salary, on the theory that it is harder to discriminate in the sunlight. Still other laws are somewhere between these two extremes. The Americans with Disabilities Act, for example, limits but does not preclude employer inquiries into disability status. On reliance, most antidiscrimination statutes, like Title VII, ban reliance on disfavored factors. But other statutes do the opposite of banning reliance – they require employers to rely on the factor. For example, a general feature of accommodation statutes is an obligation on employers to rely on the identified factor. Still other laws, like the salary-ban laws, permit but do not require reliance.
This article is the first to explore these important and surprisingly unnoticed and unexplored features of antidiscrimination laws. Viewing antidiscrimination laws through the lens of transparency and reliance presents a new and interesting way to think about current laws and a roadmap for thinking about where future laws should be placed within the transparency-reliance matrix
The Role of Adoption in a Post-Dobbs America
No full textOn the evening of September 22, 2022, Catholic Law\u27s Center for Law and the Human Person hosted a panel discussion on the role of infant adoption after the Supreme Court\u27s decision in Dobbs v. Jackson Women\u27s Health Organization, which overruled Roe v. Wade. The program, The Role of Adoption in a Post-Dobbs America was held on campus in the William J. Byron S.J. Auditorium
Speeding Up Benefits to Charity by Reforming Gifts to Intermediaries
Get PDFCharitable giving tax incentives are intended to encourage giving for public benefit. Gifts to intermediaries frustrate this goal. Presently, $1.26 trillion has accumulated in donor advised funds (DAFs) and private foundations. These are charitable intermediaries that do not benefit the public until they release their funds for public use. Congress has long recognized that intermediaries cause a “delay in benefit” problem because the tax incentive is awarded before the public benefits from the gift. Congress addressed this problem for foundations in 1969 by requiring them to pay out a minimum amount annually. Congress, however, has not addressed the problem for DAFs, and the foundation payout now has too many loopholes. The Article explains that reform of charitable intermediaries is essential to the continued viability of the charitable giving incentives. The status quo allows donors to a take a tax deduction, retain effective control over their donations indefinitely, and provides no guarantees that the public will ever benefit from tax subsidized charitable gifts. This Article responds to arguments against charitable intermediary reform and analyzes bi-partisan legislation, the ACE Act, introduced to accelerate charitable giving from DAFs and foundations. The Article also considers whether community foundations and other mission driven DAF sponsors warrant distinct legal treatment. The Article concludes that the status quo undermines generosity and perpetuates wealth, and that reform is required. This Article further concludes that, though the ACE Act is sound legislation, it should apply to existing DAF accounts and require further study of its incentives for private foundations and whether DAFs at mission-driven sponsors further their mission
Cruel and Unusual Youth Confinement
Get PDFIn a series of cases known as the Miller trilogy, the Supreme Court recognized that children are both less culpable and more amenable to rehabilitation than adults, and that those differences must be considered at sentencing. Relying on the principle that kids are different for constitutional purposes, the Court abolished capital punishment for minors and significantly limited the extent to which minors can be subject to life-without-parole ( LWOP\u27) terms. Equally important, the Miller trilogy was predicated on the concept of inherent human dignity, and it recognized the youthful prisoner\u27s need for hope and reconciliation with society. While scholars have grappled with the implementation of these cases for nearly a decade, there has been no comprehensive analysis of what these cases mean for conditions of confinement. That is, if children are different for constitutional purposes at the moment of sentencing, surely, they are still different when transported to a correctional facility and confined by the state. This Paper seeks to close that gap in the literature by making two specific contributions: first, by arguing that the Court\u27s juvenile sentencing decisions impose affirmative obligations upon states regarding youth conditions of confinement; and second, by articulating a standard for measuring when youth conditions of confinement violate the Eighth Amendment. As long as the United States persists in its extreme juvenile sentencing practices, the project of articulating what constitutes cruel and unusual youth confinement remains crucial
Fully Human: Discernment, Change, and Growth for the Beltway Lawyer
No full textCatholic Law’s Law and Public Policy Lecture Series hosted its third and final program of the 2022 series on Thursday, March 31, 2022. The evening program, Fully Human: Discernment, Change, and Growth for the Beltway Lawyer, featured guest speakers Louis Brown, Executive Director of the Christ Medicus Foundation, and Glenn Willard, Of Counsel for Squire Patton Boggs. Brown and Willard shared their stories about their intellectual and professional journeys through growth, discernment, and change over two decades in the public arena
In the Arena: Political Law & Crisis Management
No full textCatholic Law’s Law and Public Policy Program (LPP) enthusiastically hosted the first in-person event of its Law and Public Policy Lecture Series on Tuesday, February 22, 2022. The evening program, “In the Arena: Political Law & Crisis Management,” welcomed guest speaker Rob Kelner, Partner at Covington & Burling LLP and Chair of the Election and Political Law Practice Group. Kelner’s political law practice covers investigations, federal and state campaign finance, lobbying disclosure, pay to play, and government ethics laws
Will Due Process Be Returned to Academic Suspension?: An Analysis of Academia\u27s Rejection of the Title IX Final Rule
Get PDFIn 2011, the Department of Education ( DOE ) under the Obama administration issued its Dear College Letter ( DCL ) ordering publicly funded educational institutions to undertake aggressive actions to deter what was deemed an epidemic of sexual violence on college campuses. DOE subsequently aggressively enforced the directives of the DCL with scores of costly investigations of college disciplinary systems and threatened withdrawal of federal funding for institutions that failed to respond to sexual harassment claims aggressively. Hundreds of lawsuits followed in the wake of the DCL\u27s issuance. Specifically, the flood of litigation was initiated by males contending they were briskly expelled, suspended, or otherwise disciplined upon collegiate tribunals\u27 findings of guilt on claims of sexual harassment. The lawsuits portrayed collegiate systems that readily found accused males responsible on claims of sexual harassment through denial of fundamental due process rights and predetermined conclusions that equated the claim of sexual harassment with guilt on the charge. The majority of these lawsuits resulted in recognizing the deprivation of rights for the accused males in the universities\u27 rush to judgment on sexual harassment claims. In May 2020, the DOE, under the Trump administration, released its Title IX Final Rule comprehensively addressing all aspects of publicly funded educational institutions\u27 obligations in responding to claims of sexual harassment. The Final Rule\u27s eighty-two sections created a procedural framework for adjudicating Title IX sexual harassment claims based solely on the determination of the factual validity of the complainant\u27s allegations. Academia has unceasingly opposed the Final Rule from its original November 2017 publication for public comment. Repeatedly, the charge is made that the Final Rule will inevitably unleash a pandemic of sexual violence against collegiate women.
Joseph Biden campaigned for the presidency with a commitment that the Final Rule would be swiftly and surely rescinded. Accordingly, President Biden issued an executive order in March 2021 as the administration\u27s first step in eradicating the Final Rule. However, the Final Rule has proved to be a law immune to swift elimination. A series of lawsuits seeking to overturn the Final Rule failed. Moreover, the Biden administration\u27s actions have acknowledged that the Final Rule can only be rescinded and replaced through compliance with the Administrative Procedures Act and its public comment requirement. DOE has indicated a proposed replacement or drastic revision of the Final Rule will be published for public comment in April 2022. Thus, the Final Rule will likely remain an enforceable law throughout 2022. The public comment period will inevitably be contention as the Final Rule is one of the many issues on which America is deeply divided.
This article undertakes a history from the 1972 enactment of Title IX through the present setting forth the administrative, legislative, and judicial events that have led to the nation\u27s deep division over the role of government in pronouncing and enforcing permissive sexual practices on college campuses. It concludes with considering the motivations underlying academia\u27s consistent hostility to the Final Rule
