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First Amendment Traditionalism
Get PDFTraditionalist constitutional interpretation takes political and cultural practices of long age and duration as constituting the presumptive meaning of the text. This Essay probes traditionalism\u27s conceptual and normative foundations. It focuses on the Supreme Court\u27s traditionalist interpretation of the First Amendment to understand the distinctive justifications for traditionalism and the relationship between traditionalism and originalism. The first part of the Essay identifies and describes traditionalism in some of the Court\u27s Speech and Religion Clause jurisprudence, highlighting its salience in the Court\u27s recent Establishment Clause doctrine.
Part II develops two justfications for traditionalism: interpretive and democratic-populist. The interpretive justification is that enduring practices presumptively inform the meaning of the words that they instantiate. Generally speaking, we do what we mean, and we mean what we do. The democratic-populist justification is that in a democracy, people who engage in practices consistently and over many years in the belief that those practices are constitutional have endowed those practices with political legitimacy. Courts owe the people\u27s enduring practices substantial deference as presumptively constitutional. The populist element in this justification is that traditionalism is a defensive interpretive method against what abstract principle in the hands of elite actors has wrought: intolerance, the corrosion of lived experience, and the distortion of text to mirror a particular class of contemporary moral and political views.
In Part III, this Essay compares traditionalism with originalism, reaching two conclusions. First, traditionalism \u27s reliance on practices as presumptively constitutive of constitutional meaning is most distant from originalist theories that rely on abstract principle as constituting the meaning of text and that reject practice-based evidence as the equivalent of irrelevant expected applications. It is closest to varieties of originalism that read text concretely. Yet traditionalist judges are not engaged in making guesses about expected applications, but in making decisions about retrospective applications-drawing on old and enduring practices either to include within, or exclude from, a tradition the specific practice under review. Second, the Essay investigates the connection between so- called original law theories of originalism and traditionalism. Original law theorists argue that originalism is our law as a sociological and cultural fact. But traditionalism may be more our law than originalism in some areas within the First Amendment and outside it. If the positivist defense of originalism truly counts as a justification for any theory of constitutional interpretation (an issue on which this Essay takes no position), then it may support traditionalism as much as originalism
Myths and Realities: Modernizing the Proxy Rules
No full textCommissioner Roisman opened the lecture by giving context to the SEC, namely that some of its rules have not been amended since 1954. From his perspective, the SEC’s recent rule proposals to modernize the rules of governing proxy voting advice and to update the procedural requirements for re-submission thresholds under the Shareholder Proposal Rule are the SEC’s attempts to make long overdue updates. Roisman then worked to dispel eight commonly held myths about the SEC and the proposals. The program closed with questions from the audience. With a clear passion for the topic and hope for proper update, Commissioner Roisman concluded, “for too long, I think, it’s been easy for us to kick the can down the road.
Fireside Chat
No full textThe February 14 event opened with introductory remarks by Michael Nemcik (3L), Editor-in-Chief of Catholic University Journal of Law and Technology, Vol. 28. The program consisted of two panel discussions and a keynote address from Paul G. Cellupica, Chief Counsel and Deputy Director of the Securities and Exchange Commission’s (SEC) Division of Investment Management. Cellupica was joined by keynote moderator, Jennifer McHugh, Associate Director from the SEC’s Office of Disclosure Review and Accounting. Cellupica and McHugh discussed digital assets, robo-advisors, and fund disclosures within Fintech in a collegial “fireside chat.
Nicholas Beizer, General Counsel, International Affairs, GoDaddy
No full textBeizer opened his lecture by sharing that there are a number of things that concern him in regards to privacy and the law, and in his roll at GoDaddy he must take those things very seriously. Beizer joined GoDaddy in 2012. His practice touches on all areas of the business including privacy, cybersecurity, commercial transactions, disputes of all types, employment issues, protection of the company’s intellectual property, global policy, and M&A.
Beizer noted that few other areas of the law have “blown-up” quite like privacy. Seemingly every jurisdiction wants to create and enforce their own way to protect their citizens’ privacy. This patchwork of protections has created contention at times, while making it exceedingly serious for entities like GoDaddy to navigate compliance and regulation.
By exploring the United States’ stance on data protection as a fundamental right through a historical timeline, Beizer led attendees through the century leading up the General Data Protection Regulation (GDPR) and what it means for privacy regulation today. Beizer concluded with a few personal predictions on what the future of data protection holds in store
Investments and Security: Balancing International Commerce and National Security with Expanded Authority for the Committee on Foreign Investment in the United States
Get PDFWhat happens when the interests of international trade conflict with those of national security? This article analyzes this question within the context of the Committee on Foreign Investment in the United States (CFIUS), an obscure but increasingly powerful executive panel that exercises the president\u27s broad authority to unilaterally interfere with and stop international mergers and acquisitions. With the passage of the Foreign Investment Risk Review Modernization Act (FIRRMA), CFIUS is more powerful now than it has ever been, and should be a key consideration for any company seeking to do business with foreign investors. This is especially true as America enters into a strategic, economic, and military competition with China. This article will analyze the legal, economic, and liberty implications surrounding FIRRMA\u27s provisions and propose certain policy changes to preserve CFIUS\u27s national security mission while protecting America\u27s long-standing openness to international trade and commerce
The Faithful Justice
Get PDFOn Faith: Lessons from an American Believer is more than a collection of Justice Antonin Scalia’s speeches on religion and American public life. Edited by son Christopher Scalia and former law clerk and long-time confidant Edward Whelan, this eleven-speech collection also includes nine personal reflections from friends and family, four extended excerpts from judicial opinions by Scalia, two prayers (one by St. Thomas More and another by St. Ignatius of Loyola), a funeral mass homily (by son Fr. Paul Scalia), and a letter by Justice Scalia to a Presbyterian minister about the funeral ceremony for Justice Lewis Powell
Augustine, Lawyers & the Lost Virtue of Humility
Get PDFThe leading edge of legal scholarship and practice in recent decades has evinced a commitment to progressive politics at the expense of constitutional governance, the rule of law, and justice understood as vindication of the reasonable expectations of both the public and the parties to any given case or controversy. This article argues that renewed understanding of the virtue of humility, rooted in a genuine concern to do good according to one’s abilities, rights, and duties, is essential to the maintenance of decency in the legal profession and society as a whole. Such virtue is allowed, if not required, by existing rules and procedures, especially those encapsulated in the Model Rules of Professional Conduct (MRPC). It is undermined by lawyerly pride in the capacity of particular lawyers to determine what is good for society and pursue it through social activism masquerading as client service
The International Intellectual Property Commercialization Council’s 3rd Annual U.S. Conference: The State of Innovation in the Union
Get PDFThe International Intellectual Property Commercialization Council (“IIPCC”) presented its third annual policy conference at the United States Capitol on May 6, 2019. The conference’s theme explored the question of “what is the state of innovation in the United States?” Panelists included The Honorable Andrei Iancu – Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office; Dr. Carl J. Schramm – University Professor, Syracuse University and Former President of the Ewing Marion Kauffman Foundation; Mr. Patrick Kilbride – Senior Vice President of the Global Innovation Policy Center (“GIPC”) at the U.S. Chamber of Commerce; and Mr. Colman Ragan – Vice President and General Counsel, North America IP Litigation at Teva Pharmaceuticals, who all shared their perspectives on the state of innovation. A lead off panel including local entrepreneurs, intellectual property specialists, federal government specialists, and academics allowed this panel to provide a “boots on the ground” perspective
Protecting Online Privacy in the Digital Age: \u3ci\u3e Carpenter v. United States \u3c/i\u3e and the Fourth Amendment’s Third-Party Doctrine
Get PDFThe goal of this paper is to examine the future of the third-party doctrine with the proliferation of technology and the online data we are surrounded with daily, specifically after the Supreme Court’s decision in Carpenter v. United States. It is imperative that individuals do not forfeit their Constitutional guarantees for the benefit of living in a technologically advanced society. This requires an understanding of the modern-day functional equivalents of “papers” and “effects.”
Looking to the future, this paper contemplates solutions on how to move forward in this technology era by scrutinizing the relevancy of the third-party doctrine due to the rise of technology and the enormous amount of information held by third parties. The third-party doctrine may have been good law, but that time has passed. It is time for the third-party doctrine to be abolished so the Fourth Amendment can join the twenty-first century
