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Freedom to Morph? An Analysis of Morphed Imagery, Child Pornography, and the First Amendment
Get PDFThis article examines the current law related to child pornography and how it leaves a gap for morphed imagery to flourish. The jurisprudence in this area is insufficient to keep up with the changing technology which allows children to be portrayed in morphed imagery and argues that this should not fall within First Amendment protection. The Supreme Court has made it clear that protecting children is an exceedingly important interest and that traditional child pornography falls outside of what was traditionally considered to be protected First Amendment speech. This article argues that the Circuit Split, should the Supreme Court take the issue, should be resolved by finding that morphed imagery is not protected by the First Amendment
The Role of Adoption in Dobbs-Era Pro-Life Policy
Get PDFIt is incumbent upon those who wish to provide alternatives to abortion for pregnant women to advance policies that highlight the unique gifts of adoption in a way that ensures it is a meaningful option. Of course, there are many venues for this to occur, whether in education, media, advertising, private initiative, or legislation. The particular policy appropriate for each state will depend on many factors, including the availability of legal abortion
The Kids are all Right: The Law of Free Expression and New Information Technologies
Get PDFRecently the literature on free expression has turned to the question, should the law of free expression be adjusted because of the availability of new information technologies (hereafter NIT), and if so, how? The only thing about NIT that distinguishes them from traditional media is that disseminating expression via NIT is much less expensive than doing so via traditional media. The tenor of recent scholarship on NIT and free expression is that the invention of NIT does support some modification of free expression law. This Essay argues that that conclusion might be correct, but that many of the arguments offered in support move much too quickly. The Essay tries to slow them down and in so doing to suggest that the arguments require complex and contestable judgments about exactly how an expansion of expression might elicit new rules regulating it. My goal is to identify the lines of analysis that need to be pursued before we conclude that the existing law of free expression should be modified in response to NIT. In that somewhat limited sense the Essay is contrarian. The Essay’s overall theme is that the First Amendment rules in place probably already accommodate the concerns that motivate arguments for adjusting the law of free expression. The First Amendment, that is, is not obsolete
Major Problems with Major Questions
Get PDFThis July in West Virginia v. EPA, the Supreme Court formally recognized the “major questions doctrine.” That doctrine, which can be traced to a 1986 law review article published by then-Judge Stephen Breyer, calls on courts to consider a legal question’s “political importance” when interpreting statutes.
The major questions doctrine is a product of legal pragmatism—a theory of statutory interpretation advanced by Justice Breyer which often elevates statutory purpose and consequences over text. The doctrine is inconsistent with textualism—an interpretive theory that emphasizes statutory text, structure, and history to understand a statute as the public originally understood it. The takeaway is clear: textualists should reject Justice Breyer’s major questions doctrine
Private Delegation Beyond Executive Supervision
Get PDFOver the past decade, the Supreme Court has reworked the landscape of executive branch supervision. The Court has both addressed the scope of executive officials subject to the Constitution’s selection constraints in the Appointments Clause and imposed limits on the tenure protections that Congress can bestow on senior agency officials. This refashioning retrenched the functionalist approach that had taken hold in the twentieth century and culminated in the Court’s 1989 blessing of independent counsels with authority to investigate the Executive Branch from within.One less-explored question is the degree to which federally prescribed tasks can be carried out by individuals other than government officials. In other words, to what extent can Congress authorize private actors to perform statutorily required components of governmental operations such as arbitration of disputes, creation of standards tied to governmental requirements, fact-gathering, or the performance of evaluations where the result leads to qualification or disqualification for a government service or benefit? Justice Alito raised this key question in a 2015 dispute involving Amtrak, when he questioned the constitutional basis for Amtrak to set metrics and standards governing passenger railroad services operating as a private actor. The question continues to plague government practice, as Congress at times prefers to employ private boards or commissions to set standards such as the quantity and type of routine pediatric services that health insurers must cover under the Affordable Care Act.From the time of the establishment of the first Congress in 1789, the federal government has employed private actors for numerous tasks. Many of those responsibilities, however, involved the provision of contractual services such as measuring the quantities of imported goods, valuing imported items, constructing government buildings, or providing expertise such as autopsy analysis. In modern practice, private boards or arbitration panels have at times made decisions that ultimately bind the rights or obligations of private parties or that establish the substantive content for government mandates. Is there a meaningful, constitutional distinction between the early versus modern acts? What was the understanding at the time of early practice of the limits, if any, that should govern the types of tasks Congress assigned to private actors? Does the non-officer status of private actors free them from constitutional appointments and oaths constraints? Or is there an irreducible minimum of core governmental authority that cannot be delegated to private actors and that must instead be exercised by governmental actors subject to the Constitution’s oath and appointments accountability mechanisms?This Article will unpack some of those constitutional complexities by examining the early federal practice of delegating adjudicative patent determinations to private experts, which the Supreme Court briefly considered in its most recent review of executive direction of governmental determinations. Specifically, the position of the patent commissioner, first created by Congress in 1836, was bound by fact-findings of private expert panels when denying patent applications. The Court implicitly suggested last year, in United States v. Arthrex, 141 S. Ct. 1970, 1988 (2021), that this practice did not undermine the modern presidential supervisory structure that the Court went on to mandate for the contemporary patent office because the 1836 panels consisted of just private experts, not officers.What implications, if any, does such a view hold for the scope of power or duties that private actors can exercise outside of the control or supervision of the Constitution, the President, and any constitutional accountability mechanisms purportedly constraining power? Just three years after the 1836 boards’ creation, Congress went on to eliminate them and transfer their duties to a federal judge. But evidence suggests that policy considerations rather than constitutional concerns drove this development.Although Congress and implicitly the Court apparently have concluded that the binding fact-finding authority of the early boards did not disrupt presidential executive supervision, the evidence suggests that this superficially significant power really was not viewed as constituting core sovereign authority. The Executive Branch today has signed off on far broader private delegation of a potentially constitutionally distinct character. This Article will uncover some of those distinctions and explore how the early view of permissible private delegation, implicitly endorsed by the Supreme Court in 2021, differs substantially from some of the private arbitration and other binding private power that Congress and the Executive Branch have normalized today. The constitutional concerns over too much private delegation raised by jurists such as Justice Alito merit further exploration and may call into question several current governmental practices
Cross-Examining Someone Who Says ‘Me Too:’ Effect of Haidak on University Due Process
No full textOn January 25, 2021, this year’s Student Scholar Series began with a presentation given by Catholic Law third-year student Rachel Simoneau. Simoneau’s work entitled, “Cross-Examining Someone Who Says ‘Me Too:’ Effect of Haidak on University Due Process,” examines the requirement of universities to provide the opportunity for cross-examination in sexual harassment and violence cases
Fintech: New Battle Lines in the Patent Wars?
Get PDFHistorically, financial institutions have relied on trade secrets and first-mover advantages, rather than patents, to protect their inventions. For the few financial patents that were issued, conventional wisdom was that they weren’t terribly interesting or important. In our 2014 study on financial patents, we showed that banks were breaking from past patterns and increasingly seeking patent protection. We explained that financial institutions were primarily building their patent portfolios as a defensive measure—i.e., to protect themselves from infringement suits. Indeed, the finance industry successfully lobbied Congress to include provisions in the America Invents Act of 2011 that made it easier to invalidate financial patents through administrative review. Yet, two significant developments call for a revisit of our 2014 study: first, the rise of fintech and, second, the recent $300 million verdict in the first bank-on-bank patent infringement suits—United Services Automobile Association (USAA) v. Wells Fargo. This paper explores how the rise of fintech has changed the purpose of patenting among banks, and what a possible fintech patent war would mean for the future of both the financial and patent systems in this country
Business Accountability for Human Rights: Social Responsibility & Small Business
No full textOn January 27, 2021, Catholic Law’s Compliance, Investigations & Corporate Responsibility (CICR) Program hosted its second webinar in a series focused on accountability and human rights. Aimed at addressing issues that impact human lives in both the United States and abroad, the evening webinar, “Business Accountability for Human Rights: Social Responsibility & Small Business” focused its attention on particularly on human rights efforts and support of small businesses. Dean Stephen C. Payne welcomed the group and outlined the impact of discussing social responsibility and its alignment with the mission of the Law School. Professor Sarah Duggin, Director of the CICR Program, moderated the discussion along with Catholic Law alumnus Daniel Kane ’15, whose new firm, the Law Office of Daniel T. Kane PLLC, provides greater access to counsel for startups and small businesses in New York State and across the country
International Law and the New Biden Administration
No full textOn January 27, 2021, a week after the Inauguration of President Joseph Biden, the Contemporary Challenges in American & Global Law web series turned its focus to the timely topic, “International Law and the New Biden Administration.” The program was moderated by Professor Emerita Leah Wortham, Director of the American Law Program and the LL.M. Program at Catholic Law. Geoffrey P. Watson, Director of the Comparative and International Law Institute and retired Professor of Law, led Wednesday’s afternoon session, with comments made by dr hab. Izabela Krasnicka (IBTSLP 1998), Faculty of Law at the University of Bialystok in Poland
