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Culpable Kids
Full text linkWhen a child commits a crime, how do states determine if that child is culpable? There are procedural rules that determine the forum for a minor’s trial and doctrines that limit children’s exposure to the most severe sentencing. But when it comes to culpability, states employ the same substantive law whether the defendant is 50 or 15. As this Article explains, that approach is profoundly flawed. In the early 21st century, in a series of cases known as the Miller trilogy, the United States Supreme Court established that youth are fundamentally different from adults and state sentencing practices must recognize that fact. This Article argues that all of the constitutionally significant ways in which children are different for purposes of punishment are equally relevant to kids’ culpability. As a result, when kids are charged with a crime, the substantive law should be tailored to recognize their status as minors.
This Article proceeds in five Parts. Part II provides a brief overview of how the criminal system delineates juvenile from adult culpability, highlighting that these distinctions are procedural rather than substantive. Part III outlines the core Eighth Amendment cases in which the Supreme Court developed its “kids are different” jurisprudence. Parts IV and V are the heart of the Article and argue that, because “kids are different,” when they are charged with a crime, the substantive law should be tailored to recognize their status as minors. Part IV articulates necessary substantive changes to criminal law when it comes to the state’s burden to prove the elements of a crime. Part V demonstrates how the law should account for the defining features of youth when kids mount affirmative defenses. Part VI addresses both conceptual and implementation-related challenges to my proposal. Finally, by way of Conclusion, I argue that tinkering with the sentencing of minors in adult court is an insufficient response to the fundamental ways in which youth are different from adults. Instead, states should tackle head-on the issue of culpable kids through revised substantive law as I suggest herein
Lunch
No full textThe conference’s lunch break included a talk by Catholic Law’s Kevin C. Walsh, Knights of Columbus Professor of Law and the Catholic Tradition and codirector of the Project on Constitutional Originalism and the Catholic Intellectual Tradition. Walsh was introduced by Law Review lead articles editor Catherine Cook (3L). Walsh\u27s remarks expanded on his inaugural chair lecture, delivered in September 2023 and forthcoming in the next issue of Law Review, Judicial Power and Potential Unconstitutionality: A Scholastic Perspective
Freedom to Give, Devise, and Bequeath
Full text linkThe ability to freely give, devise, or bequeath property is commonly thwarted by persons granted standing to contest formalities and intentionalities of wills, tortious interference with an expectancy, and expanding concern over intervivos gifts and trusts due to increasing elder financial abuse. Nonetheless, there is an expanding class of older, wealthy, and independent-minded donors who seek an effective means by which they may give their wealth to whomever they wish and bypass expensive legal fees, protracted litigation, loss of privacy, and the emotional drama of court proceedings. This Article offers a suggestion of how to restrict the possibility of contest by utilizing the tools of modern estate planning, such as inter-vivos trusts, directed trusts, and selecting an advantageous trust situs.
The donative histories of three persons are offered as illustration: Seward Johnson, Huguette Clark, and Sumner Redstone. Each one was wealthy, older, exhibited a history of giving to those they liked, and possessed professionals to assist with giving, devising, or bequeathing their wealth to any person each chose. However, each of their estates endured contest and expense, ultimately suffering disappointing consequences. This Article discusses the challenges they all faced and the options available to them and to those in similar circumstances. Ultimately, it will ask what could have been done differently, and offer a suggestion
Locke-ing Down Nonsense Trademarks: Applying the Property Theory of John Locke to the Issue of Nonsense Trademarks
Full text linkIn 2019, the United States Patent and Trademark Office received almost half a million trademark applications. This was the tenth year in a row in which the number of applications received broke the record from the previous year. Since 2015 there has been a marked increase in the number of applications for trademarks that are unusual. These applications are for trademarks that consist of an apparently random string of letters unpronounceable in English and with no meaning in another language. These unusual trademarks have come to be known as nonsense trademarks. Nonsense trademarks are a growing problem in intellectual property. The traditional tools used to address issues in intellectual property are ineffective against nonsense trademarks. The best solution is for Congress to include linguistic failure into the failure to function doctrine
Administrative Virtues
Full text linkAdministrative law has developed to incorporate insights from two philosophical perspectives: deontology and consequentialism. This Article elucidates administrative law’s reliance on those two perspectives and proposes that administrative law further develop to incorporate insights from a third perspective—virtue ethics—which the legal community has, in large part, ignored.
Unlike deontology (which focuses on actions) and consequentialism (which focuses on actions’ consequences), virtue ethics focuses on actors. Thus, to begin incorporating virtue ethics’ insights into administrative law—a task that a wide range of scholars and jurists can embrace—this Article explores how a virtuous agency official might act in accordance with the virtues of prudence, temperance, justice, and courage. A focus on those virtues (known collectively as the “cardinal virtues”) counsels in favor of making important changes to administrative law—including by increasing the opportunities for judicial review of agency action. A focus on the cardinal virtues also offers additional support for existing administrative law doctrine—including the judicial deference courts give to an agency official’s decision to use one regulatory approach rather than another. In short, virtue ethics offers valuable insights that scholars have yet to consider, but which both transform and reinforce our understanding of administrative law in important ways
Subjectivity, Law School, and the Mirror of Justice
No full textOn Wednesday, November 20, Catholic Law School Dean Stephen Payne was honored as the 2024-2025 Mirror of Justice Lecturer. The Mirror of Justice Lecture Series, established in 1989, celebrates Mary under the title Mirror of Justice and recognizes lawyers and scholars whose contributions advance the pursuit of peace through justice in the law. The lecture is sponsored by the Saint John Paul II Guild of Catholic Lawyers, a student-led organization that promotes justice in the law and advances the intrinsic value of the human person through events like the annual Mirror of Justice lecture. Dean Payne’s 2024 lecture was entitled “Subjectivity, Law School, and the Mirror of Justice.”In his lecture, Dean Payne emphasized the importance of the Catholic intellectual tradition in legal education. He highlighted Catholic Law\u27s commitment to academic rigor and faith, aiming to create a welcoming environment for all students, regardless of their backgrounds. He explained, “This school has always been truly and wonderfully Catholic, meaning that it is available and welcoming to all, including those who aren’t Catholic, those who aren’t religious, and those who may not realize that this rich tradition belongs to them as well and can offer them a great deal for the practice of law and the practice of life.
Appropriate Appropriations Challenges after Community Financial
Full text linkThe standard federal agency must come to Congress each year, hat in hand, and request another round of congressional funding. This annual appropriations process ensures that Congress maintains at least some influence over the vast array of rules and regulations that govern Americans\u27 daily lives. Sure, Congress might have delegated broad authority to administrative agencies to develop national policy on Congress\u27s behalf. But an agency reliant on annual appropriations is an agency with the financial incentive to exercise its delegated authority with an eye toward pleasing congressional appropriators. The annual appropriations process is therefore a sensible (even if insufficient) step toward ensuring democratic oversight of how taxpayer dollars are spent. But in Washington, sensibility does not often win the day. And so it is little surprise that, when it came to designing the Consumer Financial Protection Bureau (CFPB), Congress sought to do things a bit differently