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An Impossible Task: Enforcing Disclosure Requirements In A Multi-Billion Dollar Industry
Full text linkUsers of the first global social network, MySpace, could have never imagined that a mere twenty years later, teenagers could be millionaires making thirty-second videos out of their parents’ basement. Social media platforms have blossomed and advanced to an unpredictable level in a short amount of time. The growth of TikTok, surpassing one billion users, has been one of the most substantial contributors to the change in landscape.[1] In 2025, “social media influencers” come in all shapes and sizes.[2] Social media users can scroll through Instagram reels and stumble upon their fellow PTA member, co-worker, or grandmother promoting a Maybelline mascara, Dyson vacuum, or Athletic Greens Powder. One likely trusts a vacuum recommendation from their grandmother, but does that trust dwindle if you find out grandma was paid to promote that product?
[1] Jessica Bursztynsky, TikTok Says 1 Billion People Use the App Each Month, CNBC, https://www.cnbc.com/2021/09/27/tiktok-reaches-1-billion-monthly-users.html (Sept. 27, 2021, 11:49 AM) [https://perma.cc/ZT89-VCBK].
[2] See Top Social Media Influencer Legal Issues, Couns. for creators (Nov. 21, 2022), https://counselforcreators.com/log/top-legal-issues-for-influencers/ [https://perma.cc/YP8Y-PKX9] (defining social media influencers as “digital creators with large followings that regularly create and offer content that educates, entertains, or engages their audience[;] . . . . use their platforms to set trends, increase their popularity, and often change popular social media culture[;] . . . . [and] serve as valuable assets for any company looking to advertise or market their brands using popular platforms.”)
Plenary Address | Rethinking Judicial Power and Remedial Restraint
No full textProfessor Caprice Roberts, Associate Dean of Faculty Development & Research at Louisiana State University Law Center, delivered the keynote address, Rethinking Judicial Power and Remedial Restraint, sparking discussions on the boundaries of judicial authority
Introduction
No full textThe Catholic University Law Review proudly held its Spring 2025 Symposium, titled Traditional Judicial Power & Doctrinal Development, bringing together distinguished legal scholars, practitioners, and students to explore the relationship between judicial power and the evolution of legal doctrine. The event took place on March 28, 2025, at The Catholic University of America Columbus School of Law.
This thought-provoking Symposium examined how traditional notions of judicial authority shape the capacity of courts to influence, moderate, or even prevent changes in legal doctrine. Panelists and speakers presented cutting-edge research, offering scholarly insights into this critical area of the law. The presentations will be published in an upcoming issue of the Catholic University Law Review
Splitting the Statute: Severability as a Canon of Construction or Constitutional Concern?
No full textSeverability doctrine stands at the crossroads of statutory interpretation and constitutional structure. This Article traces how the Supreme Court has struggled to define whether severability is merely an interpretive presumption designed to preserve as much of Congress’ work as possible, or a constitutional limit on judicial power that forbids courts from reconstructing statutes Congress never enacted. Beginning with Marbury v. Madison and running through cases like Alaska Airlines, Booker, Ayotte, Seila Law, and Loper Bright, this Article charts the Court’s shifting rationales from legislative intent and functional operability to structural separation-of-powers concerns. It distinguishes between textual severability, where courts decide whether invalid provisions can be excised while leaving the remainder intact, and application severability, where a statute is valid on its face but unconstitutional in certain applications. In examining more recent cases, this Article argues that the Court’s severability analysis now serves as a barometer of judicial restraint: expansive in preserving landmark legislation, but skeptical when agency power is at stake. The result is a doctrine that both preserves and constrains the administrative state and large legislation, revealing severability’s dual identity as a canon of construction and a constitutional boundary on judicial lawmaking
Rethinking Judicial Power & Remedial Restraint
No full textThis Article maintains that groundbreaking Supreme Court cases reshaping judicial power and restraint are frequently remedies centric. The much- anticipated ruling in Trump v. CASA illustrates this correlation. Interpreting traditional equity, the Supreme Court circumscribed federal judicial power to issue universal relief. The Court relied on Marbury v. Madison to bolster its reasoning on the limits of judicial power. Ironically, both cases denied any remedy while enhancing the potential for future judicial power. Whether via judicial review and supremacy power or the Court’s future ability to now be the only federal court able to issue universal remedies—the Court’s role in the separation of powers remains potent. It retains the potential to protect against the encroachment of rights by other branches. The increasing use of the emergency, also known as the shadow, docket intensifies the importance of remedial pressure points. The problematic nature of universal injunctions, for example, distorted the docket and led the Court, in CASA, to interpret the history of equity too narrowly, even if one appreciates the need for reform. Similar flaws plague standing jurisprudence regarding interpretation of the actual injury and redressability components of the constitutional case or controversy requirement. Injury and redressability embed remedies considerations. Whether legal or equitable, remedies jurisprudence should not calcify remedies with rigid borders to cure perceived litigation abuses. For example, in honoring equity’s traditions, the Court should be more reluctant to disregard historic equitable principles such as flexibility, discretion, and complete relief. Otherwise, a future needed flex of Supreme Court interbranch power may prove ineffective or elusive. This moment reinforces the opportunity to take remedies seriously
Disregarding Severability
No full textThe infirmities of severability doctrine have elicited increased attention at the Supreme Court. In his application of severability doctrine for a five-Justice majority in United States v. Arthrex, Inc., Chief Justice Roberts began to reformulate the doctrine in a way that can free the Court from the misleading mental imagery conjured by the conception of courts as “severing” provisions from a statute. Roberts\u27s reformulation more properly depicts the relevant judicial activity to be judicial disregard of statutory rules to avoid unconstitutional applications of law rather than judicial severance of textual provisions to fix a problem that inheres in the statute itself. The cleanest way to complete the task begun in Arthrex is for a Court majority to explicitly adopt disregard as a replacement for severance. One promising path toward completing the shift from severance to disregard would be through the Court\u27s explicit repudiation of the litigation-expanding technique that William Baude has described as “bank-shot” standing. This technique should instead be recognized and rejected as impermissible “Jenga-loser” standing. Parties should not be able to topple statutes by inviting courts to pull out provisions that do not apply to them
Money Market Funds: Comparison of Regulations in the United States and European Union
Full text linkMoney market funds have proven to be a highly successful financial product, both in the United States and Europe. These funds have offered investors a competitive, short-term market rate of return, while providing diversification of investments and daily liquidity. Notwithstanding (or, perhaps, in spite of) money market funds’ popularity beginning in the late 1970s and early 1980s, money market funds have been subject to a complex set of regulations and intense focus by global regulators, particularly those in the United States and European Union. This regulatory scrutiny was particularly acute following the 2008 financial crisis and, more recently, after the market volatility resulting from the COVID-19 pandemic in March 2020. Indeed, in February 2010, July 2014 and July 2023, the US Securities and Exchange Commission, the primary regulator of US money market funds, adopted significant amendments to the rules that govern US money market funds. Likewise, the EU Commission and Council adopted reforms to the regulation of EU money market funds in 2017 and is in the process of considering and potentially adopting new reforms. These efforts, while similarly aligned to seek to enhance the resiliency of money market funds in response to perceived weaknesses stemming from past crises, have resulted in key similarities and differences between US and EU money market fund regulations. This article compares and contrasts money market fund regulations in the United States and European Union
Constitutional Theory and the Problem of Disagreement
Full text linkFor decades, constitutional theory has been haunted by the problem of disagreement: the reality that we are deeply divided on fundamental questions of justice and the good society. Theorists have generally responded to the problem of disagreement in one of two ways. One approach minimizes the extent to which constitutional theories rely on controversial moral premises and instead grounds constitutional theories in widely endorsed social practices. The other generally discards any social practices that reflect disagreement with the controversial moral views that the theorist holds.Neither approach is sound. Constitutional theory requires both controversial moral claims and attention to social practices; it requires both ideal and practical constitutional theory. Indeed, we can see how to address the seemingly modern problem of disagreement by attending to the work of an ancient constitutional theorist: Cicero. Despite being the subject of intense scholarly interest outside of the legal academy over the last few decades, Cicero’s work has been almost entirely overlooked by American constitutional theorists. But if we examine, refine, and revise his arguments about ideal and practical constitutional theory, we will find that the two major approaches to the problem of disagreement proposed by American constitutional theorists are mistaken.Because constitutional theory necessarily makes strong moral claims, it is not well-suited to mitigating the effects of disagreement, even as it must take into account non-ideal social practices. Rather, the task of ameliorating the problems stemming from disagreement falls to constitutional design: the enterprise of constructing a constitution that can channel disagreements productively, forge consensus, and produce a stable constitutional order. The failure to distinguish between constitutional theory and constitutional design when addressing the problem of disagreement has led to deep confusion within constitutional theory. Mitigating the problem of disagreement is a task of constitutional design, and whether that task succeeds depends on our role acting within that design as citizens, not as theorists
Re-Evaluating \u3ci\u3eFulton v. City of Philadelphia\u3c/i\u3e: A “Narrow” “Wisp” of a Decision or Free Exercise “Bedrock?”
Full text linkIn Fulton v. City of Philadelphia (2021), a unanimous Supreme Court held that Philadelphia violated the Free Exercise Clause by excluding Catholic Social Services from participating in its foster program because CSS would not certify same-sex couples. Both supporters and critics of the Court’s decision publicly characterized the decision as “narrow” and noted that Philadelphia (and other governments) can easily sidestep Fulton and continue excluding religious providers from foster and adoption programs.
Four years later, the evidence shows that Fulton is anything but narrow. In Philadelphia and in other jurisdictions, Fulton has played a strong role in ending litigation against religious foster and adoption providers. And in a broader array of religious liberty cases, Fulton has turned out to be—as the Ninth Circuit recently put it—a highly influential “bedrock” of Free Exercise jurisprudence.
This article traces the reasons for the initial view that Fulton would be narrow. It then argues that subsequent developments show the decision to be deeply influential and important for Free Exercise law both in the foster context and in religious liberty disputes more broadly
Personhood After \u3ci\u3eDobbs\u3c/i\u3e
Full text linkFollowing the Supreme Court’s decision to overturn Roe v. Wade in 2022, unsettled questions remain about the constitutional status of unborn children. With good reason, Dobbs v. Jackson Women’s Health Organization did not address whether unborn children are persons within the original meaning of the Due Process and Equal Protection Clauses. The historical evidence, however, is now well-established that when the Fourteenth Amendment was ratified in 1868, the word “person” had a settled public meaning that included every human being—children in the womb among them. And if unborn human beings were included within the original public meaning of “person” in 1868, then the Fourteenth Amendment’s guarantees of due process and equal protection to “any person” must extend to unborn human beings. The question of prenatal personhood, then, is likely unavoidable after Dobbs. This Article considers what a path toward resolving that question might look like. Part I explains why the majority’s opinion in Dobbs is consistent with and even favorable toward a future constitutional rule securing the equal protection of the laws to unborn children. Part II responds to common practical objections to personhood and shows why recognition of prenatal personhood would restore the traditional consonance of Anglo-American law relating to fetal rights, not disrupt it. Part III addresses the role that each branch of the federal government may play in recognizing constitutional equal protection for unborn persons—such as through Section 5 enforcement legislation, executive order, or judicial decision