Bibliography of Catholic Legal Scholarship

On this page, you will find legal scholarship from a Catholic perspective from 2019-2022. You can scroll through this page and view all the scholarship, or you can use the sub-pages to look at a specific subject matter.

This bibliography is the work of the following dedicated librarians: Abigail Starcher editor, compiler, and contributor to all sections, Rebekah Miller contributor to the Bankruptcy Law and Jurisprudence sections, and Asli Karaevli contributor to the Immigration Law section. It was compiled under the leadership of law library director and professor, Ulysses N. Jaen.

Veronica Root Martinez, Complex Compliance Investigations, 120 Colum. L. Rev. 249 (2020) 

Whether it is a financial institution like Wells Fargo, an automotive company like General Motors, a transportation company like Uber, or a religious organization like the Catholic Church, failing to properly prevent, detect, investigate, and remediate misconduct within an organization's ranks can have devastating results. The importance of the compliance function is accepted within corporations, but the reality is that all types of organizations--private or public--must ensure their members comply with legal and regulatory mandates, industry standards, and internal norms and expectations. They must police thousands of members' compliance with hundreds of laws. And when compliance failures occur at these complex organizations they can be significant and widespread in both scope and associated harms. Yet, careful examination and assessment reveals that many of the most significant and damning scandals occurring within organizations of late were entirely avoidable. Research within the field of corporate governance focuses on how firms are structured because those structures can result in better decisionmaking within the firm. Structure refers to the manner of separating the work in an organization into subunits and dividing the control of and responsibilities for the work. The field of compliance relies heavily on these insights from corporate governance, which has led to a focus on what organizational structures will lead to compliance programs likely to prevent and detect misconduct within firms. When it comes time to investigate potential incidents of misconduct and determine whether they are material events, however, complex organizations must go beyond issues related to the best manner in which to structure a compliance program. Instead, this Article argues that firms must focus on process-based reforms--or the actions, practices, and routines firms employ to communicate and analyze information--that will bolster a firm's "Complex Compliance Investigations" and act as a safety net when compliance programs fail to detect or appropriately respond to misconduct within firms.

Nadia N. Sawicki, The Conscience Defense to Malpractice, 108 Calif. L. Rev. 1255 (2020)

This Article presents the first comprehensive overview of the procedural protections established by state conscience laws in the reproductive health care context. The novel research findings in this Article raise awareness of the previously unrecognized breadth of protections established by conscience laws. These findings also challenge the assumption that tort law is available to remedy harms suffered by patients who are injured by a conscience-based denial of information or treatment, even when that denial violates the standard of care. Although the scope of this study was limited to conscience laws relating to reproductive care, it prompts further academic inquiry and debate about the appropriate scope of conscience protections in all health care contexts. The data and discussion in this Article should motivate policy-makers to consider how best to balance providers' rights of conscience against the state's interest in ensuring that patients, employers, and others who suffer harm as a result of a provider's exercise of conscience rights are not denied legal remedies for those harms.

Paul J. Larkin & Doug Badger, The First General Federal Vaccination Requirement: The OSHA Emergency Temporary Standard for COVID-19 Vaccinations, 6 Admin. L. Rev. Accord 365 (2022)

The Biden Administration has tried to force a federal safety law designed to protect against hazards that arise only in the workplace to serve double  [*412] duty as a basis for compelling tens of millions of people to submit to a vaccine that they might not want. The legal problem the Administration faces is that the OSH Act does not grant the Labor Secretary that authority. The political problem that the President faces is that he does not want to ask Congress to adopt the first-ever general federal vaccination requirement. President Biden is facing many challenges in Congress and elsewhere and understandably is reluctant to take on another one. But if he wants to impose a vaccine mandate, he has no other option.

Marie T. Reilly, Catholic Dioceses in Bankruptcy, 49 Seton HALL L. REV. 871 (2019).

This Article reviews the arguments and outcomes on these issues based on reported decisions, pleadings, plans, and disclosure statements. It explains the key characteristics of Catholic dioceses under canon and secular organization law and the bankruptcy contexts in which these characteristics became hot-button issues. It offers an analysis of the legacy of the Catholic cases for bankruptcy law, religious liberty, and for the relationships among entities within a Catholic diocese.

Murray Joseph Casey, M.D., M.S., MBA, Ph.D., FACOG, FACS, Value-Based Costing of Anti-Cancer Drugs: An Ethical Perspective Grounded in Catholic Teachings on Human Dignity and the Common Good, 36 Issues L. & Med. 44 (2021)

Americans have benefited from a declining cancer incidence and improving prognosis over the past two decades, during which time rising prices for anti-cancer drugs have proportionally outstripped rising expenditures for overall cancer care and total national health expenditures. To meet the economic challenges, remedies have been proposed to base compensation on relative survival measurements perhaps taking into account associated drug toxicities, disabilities, and disease progression. While there are advantages for knowing the economic costs determined from so-called, “value-based” methodologies, it must be recognized that the measured values are impersonal, incomplete, and always biased. This article examines value-based costing of anti-cancer drugs in an individual and societal framework and advocates grounding decisions regarding cancer care and pharmaceutical costs on the ethical principles of human dignity and the common good.

Chad D. Cummings, Transhumanism: Morality and Law at the Frontier of the Human Condition, 20 Ave Maria L. Rev. 216 (2022)

Transhumanism is not new, and its moral and legal concerns have already taken root. While the terminology may be novel, transhumanism as a philosophy and its constituent technologies trace their heritage not to the horrific legacy of eugenics but instead to the advent of plastic surgery and other noble quality-of-life endeavors in the mid-twentieth century. Those technologies and their influence on personhood are familiar, and their threads have already been woven into law--most especially, though not exclusively, in torts.

The impact of transhumanism will not terminate there. As technological developments continue at a geometric pace, transhumanist issues will expand into other domains of law, striking at what is perhaps the most elemental topic in all jurisprudence: personhood. To comport with a universal, objective view of morality, transhumanism should not attempt to effectuate a change in human nature or to extinguish it by supplanting natural law with manmade ideals. Nor should its practitioners enter a Faustian compact by substituting their human worth for technological novelty or some other perceived temporal benefit.²⁸³ Legal practitioners and moral thinkers should actively encourage a moderate form of transhumanism, or at the very least, tolerate it so long as it *259 serves “the moral growth of man.”²⁸⁴ Its advocates must concede that human freedom is not an end unto itself, cannot be a source of values, and will serve immoral ends when unhinged from the immutable natural law--all while recognizing that “[h]uman freedom and God's law are not in opposition; on the contrary, they appeal one to the other.”²⁸⁵ In summation, practitioners should reject any form of transhumanism--and probably every form of posthumanism--that prizes technological development as its own end or that would seek to “leave the human body behind.”²⁸⁶ In any event, tests of the degrees of worthiness based on the functionality of an individual's capabilities must be avoided under any circumstance, respecting the dignity inherent in each person's life while maintaining “the relationship between human beings and the state,” carefully avoiding the trap of commoditizing human life by “making the former just tools at the service of the latter.”²⁸⁷

Thoughtful practitioners have an opportunity--even an imperative--to recognize the timeliness of this topic and advocate for well-reasoned, moral outcomes. The alternative--acquiescence by inaction--is unacceptable. By cultivating an awareness and interest in this topic now, attorneys will be better equipped to address the subject intelligently, empowered to argue against decisions that are morally repugnant, and advocate for those outcomes which protect and honor the unalienable, immutable worth of the most vulnerable minority of all: the individual.²⁸⁸

Lucien J. Dhooge, Nonmedical Exemptions to Public School Vaccination Mandates in the Post-Pandemic World: Solutions Within Existing State Frameworks, 20 Ind. Health L. Rev. 23 (2023)

The article examines issues relating to nonmedical exemptions to vaccination as a condition of public-school attendance. The article contends that the public health impacts of exemptions may be mitigated through the application of existing state frameworks relating to procedural tightening, counseling and persuasion, assessments of sincerity and good faith, the application of public emergency laws, and transparency. The article identifies best practices in each of these frameworks. The article concludes that nonmedical exemptions are unlikely to be eliminated. As such, public health and educational authorities must act to prevent further erosion of the benefits associated with vaccination.

Deirdre T. Little et. al., Covid-19 Vaccination: Guidance for Ethical, Informed Consent in A National Context, 36 Issues L. & Med. 127 (2021)

This Guidance addresses the essential elements of informed consent to novel, provisionally registered COVID-19 vaccines which conform to the current definition of an investigational vaccine namely, lacking requirements for approval for full registration.¹ First, it addresses the ethical obtaining of informed consent in a setting of short and long term knowns and unknowns, by structuring the personal nature of informed consent into its twelve component parts. Second, as a guidance for family physicians, it explores reasonable medical concerns arising for individuals from both knowns and unknowns about COVID-19 disease and vaccines.

M. S. Marta , Calçada, M.S. & Anderson M. R. Alves, Ph.D., Hormonal Contraceptives and Post-Fertilization Effects, 37 Issues L. & Med. 29 (2022)

Hormonal contraceptives are widely used for birth control and therapeutic purposes. The mechanism of action proposed for these compounds can be found in several scientific journals published to date. The present work consists in a scoping review of a convenience sample of papers regarding the mechanisms of action of each of the three main classes of hormonal contraceptives available. Different parameters and biological consequences associated with their use were also reviewed. Based on these data, we evaluated the probability of embryo loss due to the use of hormonal contraceptives. Evidence indicates the probability of embryo loss due to post-fertilization effects.

Richard S. Myers (FN1), Euthanasia, Ethics and Public Policy by John Keown, 18 Ave Maria L. Rev. 35 (2020)

The publication of the second edition of John Keown's study of euthanasia is an important development.² Euthanasia, Ethics and Public Policy: An Argument Against Legalisation was first published in 2002.³ Much has happened since that time. In the new edition, Keown does an admirable job of updating the earlier work. The second edition provides a wealth of information and critical analysis of the issues involved. The work is marked by a sophisticated analysis of the legal issues and by an acute understanding of the actual practice of assisted suicide and euthanasia in those jurisdictions that have legalized these practices. His analysis should inform the ongoing debate about these practices. In this reviewer's estimation, Keown makes a compelling case against their legalization. This second edition deserves a wide readership.

Michal Pruski, Ph.D., M.A., M.Sc., Alta Fixsler: Medico-Legal Paternalism in Uk Paediatric Best Interest Decisions, 37 Issues L. & Med. 81 (2022)

The case of Alta Fixsler, where a judge ruled that withdrawing life sustaining care was in her best interest rather than transferring her to Israel, as her parents wanted, is the latest in a series of controversial paediatric best interest decisions. Using this case, as well as some other recent cases, I argue that the UK exhibits a high degree of medico-legal paternalism in best interest decisions, even though paternalism seems to be ubiquitously negatively perceived in medical ethics. Firstly, I explain what I mean by medico-legal paternalism and defend my claim that this phenomenon is present in the UK. I then argue that at least philosophically (rather than legally) such a situation is impossible to justify in a secular state and that how we treat paediatric best interest decisions is very different from other areas of medical law. Lastly, I discuss proposals that aim to rectify this situation.

Tara Sander Lee, Ph.D., Maria B. Feeney, Ph.D., Kathleen M. Schmainda, Ph.D., James L. Sherley, M.D., Ph.D., and David A. Prentice, Ph.D., Human Fetal Tissue from Elective Abortions in Research and Medicine: Science, Ethics, and the Law, 35 Issues L. & Med. 3 (2020)

Since the U.S. Supreme Court issued its landmark decision in 1973 to legalize abortion, over 60 million preborn have been killed by elective abortion. While alive in the womb, these preborn are abandoned and not protected under current law. But once aborted, their body parts are a highly esteemed and prized commodity amongst certain members of the scientific community. Moral discourse is disregarded for the sake of science. The public have been lulled and lured into believing that this practice must continue in order to understand and develop cures for some of the most debilitating diseases of our day. But they are mistaken. This practice is not necessary, especially in light of numerous noncontroversial alternatives. Here, we expose and consider the false and misleading claims regarding human fetal tissue (HFT) in research from scientific, legal, and ethical points of view. We endeavor deeply to understand the depth of the injustice in this practice and what forces promote and maintain it; and by revealing and understanding these forces, we set forth how these inhumane practices can be ended. An accurate portrayal of the history of HFT use in research is provided, along with a close examination of the current state of this practice under existing laws. The serious societal implications are also discussed, which will worsen beyond comprehension if these practices are allowed to continue. The timeliness of this information cannot be overstated, and a thorough understanding is paramount for anyone who desires to know the facts about HFT in research and medicine and its detrimental impact for humanity.

Darrin Schultz, The Undesirables: The Transformation of American Eugenics from Sterilization to Abortion, 20 Ave Maria L. Rev. 296 (2022)

When the Court finally decides to address the question of anti-eugenic abortion bans, perhaps the Court will, at long last, be informed by Justice Scalia's simple solution to its unworkable abortion jurisprudence: “We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.”²²² If Justice Scalia is not persuasive, my hope is Judge Erikson will be: We are...remarkably variant in our talents, abilities, strength, and weakness. The human person has...a capacity to love and be loved that is at the core of human exsistence. Each human being possesses a spirit of life that at our finest we have all recognized is the essence of humanity. And each human being is priceless beyond measure.

Frederick J. White III, M.D., FACC, FCCP, MBA, HCEC-C, The Prioritization of Life-Saving Resources in A Pandemic Surge Crisis, 35 Issues L. & Med. 99 (2020)

The COVID-19 pandemic has engendered a national discussion regarding scarce life-saving medical resources. These discussions often turn on allocation, reconfiguration, and reallocation of resources during the surge crisis of a declared emergency. Protocols to address these issues are being widely promulgated. From the standpoint of biomedical ethics, the principal concerns in these discussions should center on duty, justification, legality, and underlying moral standards. In this article the author explores general concepts of prioritization and crisis standards of care, physician duties and the conflict of those duties, the problematic nature of reallocation, and legitimate responses to the extreme absolute scarcity of surge crisis.

Helen M. Alvare, Article: Church Autonomy after Our Lady of Guadalupe School: Too Broad? Or Broad as it Needs to be?, 25 Tex. Rev. Law & Pol. 319 (2021)

A common criticism of, or concern about, the "ministerial exception" doctrine ... is that, in some cases, it operates to prevent employees who have been treated badly from seeking a legal remedy and insulates from legal oversight a religious employer's unjust decision. This is true. It is also true, of course, that our Constitution's rules of criminal procedure sometimes result in guilty offenders not being convicted and that our free-speech guarantee protects expression that is nasty, offensive, foolish, or worse. The premise of the church-autonomy principle is not that religious organizations do not sometimes behave badly. Certainly, they do. And they should be criticized, from within and from without, when they do. But not all wrongs are, or should be, redressable through civil litigation or by secular political power. 315 Guadalupe surely portends a broad application of the church autonomy doctrine. It is difficult or even impossible to conclude otherwise, due to the majority opinion itself and the theological and empirical materials shared in Parts III and IV above. The future of the doctrine, however, seems uncertain, especially given today's fraught contest between religious freedom and fast-developing sexual expression laws and regulations. 316The future "good behavior" of judges and religious institutions will matter.

Ronald J. Colombo, The Past, Present, and Future of Christian ADR, 22 Cadozo J. Conflict Resol. 45 (2020)

Many religious traditions recommend (if not require) that their adherents bring some if not all of their disputes with co-adherents before a religious tribunal for resolution. The Christian religious tradition is no exception. That said, the dramatic history of the Church in the West, from that of a persecuted Jewish sect, to the official state religion of Imperial Rome, to an international authority competing with that of local monarchs, to its modern status of merely tolerated, has yielded a variety of evolving perspectives on the question of intra-faith dispute resolution within Christianity. This article examines that question and the historical answers given thereto by Christian theologians over the past two millennia. In its final sections, this article explores the constitutional parameters circumscribing the modern practice of religious ADR and engages in some prognostication about the future of religious ADR.

Christian Edmonds, The Religious Underpinnings of the Fourth Amendment, 25 Tex. Rev. Law & Pol. 473 (2021)

IT is paramount that the intent of the Fourth Amendment - to function as a barrier to government overreach and as a catalyst for other constitutional rights 268- stand tall amidst all social and governmental pressure to stray wayward. The government has no right under any circumstances to meddle in the private property of faith leaders because of the past, present, and possibly future understanding that religion is special and should be protected as such.

Tory L. Lucas, Greed and the Seven Deadly Sins: Treacherous for the Soul and Legal Ethics , 33 Regent U. L. Rev. 113 (2020-2021)

As religious, philosophical, and cultural ideas, the Seven Deadly Sins occupy a common understanding of the worst behaviors that plague human relationships. Pride. Greed. Lust. Envy. Gluttony. Wrath. Sloth. Not exactly the traits that you seek in mutually beneficial relationships! Striving for universal appeal, this novel Article presents the Seven Deadly Sins as a useful construct to explain why lawyers commit major ethical violations. The underlying premise is that one or more of the Seven Deadly Sins lies behind every major ethical violation. Focusing on greed specifically, this Article demonstrates how greed first enters one's thoughts to acquire wealth. As a lawyer feeds on greedy thoughts, the lawyer becomes bigger while others--most significantly, the client--become smaller. From the greedy lawyer's vantage, "I" grows far larger than "you." As the insatiable desire to acquire more wealth burns hotter, even at the expense and to the harm of others, the lawyer is consumed by greedy thoughts until greedy conduct ignites. As greed fuels the lawyer to relentlessly pursue more wealth, the lawyer's ability to recognize greed's impact on others is diminished. Predictably, greedy conduct inevitably harms others. This Article contends that lawyers can utilize the Seven Deadly Sins as a compelling construct to comprehend what drives greedy and harmful conduct. This construct will equip lawyers to travel a virtuous path that leads away from ethical misconduct and its catastrophic consequences to clients.

Allison H. Pope, Note: "Of Substantial Religious Importance": A Case for a Deferential Approach to the Ministerial Exception, 95 Notre Dame L. Rev. 2145 (2020)

Civil courts must defer to the religious group's determination of whether its employee served an important religious role. Otherwise, civil factfinders would be involved in the evaluation of religious doctrine, because the religious importance of an employee's role can only be determined by the application of religious doctrine. This government evaluation of religious doctrine would infringe on the religious group's free exercise rights and violate the Establishment Clause. In its upcoming ministerial exception cases, Biel and Our Lady of Guadalupe School, the Supreme Court should provide a clearer definition of "minister" and call for deference to a religious group's determination of which of its employees play a role "of substantial religious importance."

Patrick E. Reidy, C.S.C., Condemning Worship: Religious Liberty Protections and Church Takings, 130 Yale L. J. 226 (2020)

Recent eminent-domain actions against houses of worship ("church takings") along the Mexico-U.S. border have inspired new questions about religious liberty and land use. This Note explores how courts interpret constitutional and statutory religious liberty protections when the government seeks to condemn property owned by faith communities, revealing how courts discriminate between types of religious property. While protecting those structures in which faith communities gather for worship, courts allow condemning authorities to take other properties integral to communities' religious missions. Courts thus transform houses of worship into paradigmatic property for the free exercise of religion.

Charles J. Russo, M.Div., J.D., Ed.D. and William E. Thro, M.A., J.D, The Demise of the Blaine Amendment and a Triumph for Religious Freedom and School Choice: Espinoza v. Montana Department of Revenue, 46 Dayton L. Rev. 131 (2021)

Espinoza has the potential to play a major role in helping to end what former President George W. Bush described as the "soft bigotry of low expectations." 245This "soft bigotry" condemns many children, especially those from economically deprived backgrounds, to attending low-performing schools from which they have little, if any, chance of succeeding academically and beyond, denying them, their parents, and families opportunities to participate in the seemingly elusive "American Dream." Espinoza thus represents a significant step toward achieving the as of yet unfulfilled promise of Brown v. Board of Education's equal educational opportunities for all of America's children and their families, regardless of their races, creeds, ethnicities, genders, socioeconomic or immigration statuses, or (dis)abilities. 246 Brown's goal of equal educational opportunities for all children and their families is one well worth pursuing, perhaps now more than ever before in the nation's history.

John Witte, Jr. Back to the Sources? What's Clear and Not So Clear About the Original Intent of the First Amendment, B.Y.U.L. Rev. 1303 (2022)

Neither originalists nor their critics will be fully satisfied with what this careful text-sifting of the sources of the First Amendment has yielded. In 2008, at a conference organized by the United States Court of Appeals for the Fifth Circuit, I had the privilege to present the foregoing account at a conference dinner with the most famous of originalists, Justice Antonin Scalia. He listened with more patience than I deserved, as I worked through the data and ventured my speculations on what's clear and not so clear about the original understanding of the First Amendment religious freedom clauses. After a few shrewd and pointed questions, and a few "hmmm's," "interesting's," and even one "that's very intriguing!" he concluded: "Well, you have now cast reasonable doubt in my mind. I'll need to look at the sources again."

David A. Armstrong, J.D., Ethical Leadership, 14 Intercultural Hum. Rts. L. Rev. 13 (2019)

Our world is in desperate need of Ethical Leaders. In turmoil, it tumbles toward the abyss of hatred, violence, and anarchy. The cry for leaders with an authentic ethical agenda dedicated to the common good rises, and it assumes increasing urgency. This contribution is meant to honor John and June Mary Makdisi, intellectual and moral leaders of the academy. Their upcoming retirement provides the welcome occasion to reflect on responsible leadership in the necessarily joint universe of law and morality. This essay undertakes to delimit the proper understanding of ethical leadership, provides historical examples, and explores the question as to whether ethical leadership can be taught.

Ira Bedzow, Patents on Life: Religious, Moral, and Social Justice Aspects of Biotechnology and Intellectual Property. Edited by Thomas C. Berg, Roman Cholij, and Simon Ravenscroft. Cambridge: Cambridge University Press, 2019. Pp. 31, 36 J.L. & Religion 433 (2021)

Patents on Life: Religious, Moral, and Social Justice Aspects of Biotechnology and Intellectual Property, edited by Thomas C. Berg, Roman Cholij, and Simon Ravenscroft, begins to do just that. The collection of essays that comprise the book arose out of an international conference on this theme, “Patents on Life: Through the Lenses of Law, Religious Faith and Social Justice.” The conference itself was inspired by a direct invitation from the papal representative, the apostolic nuncio, to the United Nations in Geneva to the Von Hügel Institute for Critical Catholic Inquiry at St. Edmund's College to produce a report for the Holy See on how the patent system could be used to achieve fair distribution of benefits and social good.

Gordon T. Butler, John the Theologian: Toward Integrating Law and Religion, 14 Intercultural Hum. Rts. L. Rev. 41 (2019)

As a teacher, John demonstrated his broad interest in the law by teaching important basic courses, including Property, Contracts, Evidence, and Remedies. Adding to this his interest in teaching *42 natural law, he could almost be a law school in his own right. He was able to infuse a moral element into that course with the introduction of the thought of St. Thomas Aquinas² and Catholic social teaching. With his academic and scholarly background in Islamic law and Catholic social teaching, as well as natural law, it is not surprising that John's interest led him to pursue advanced religious studies at Catholic University of America, where he earned a Master's and Ph.D. degree in Moral Theology and Ethics. His dissertation sprang from Pope John Paul II's reinterpretation in the encyclical, Veritatis Splendor (“The Splendor of Truth”), of St. Thomas Aquinas' statement that the “morality of the human act depends primarily and fundamentally on the ‘object’ rationally chosen by the deliberate will,” and that, to grasp this object, one must “place oneself in the perspective of the acting person.”³ John evaluates the writings of two contemporary scholars who reached inconsistent interpretations of Aquinas' statement. John's dissertation evaluates these interpretations in light of Aquinas' writings and the writings of certain precursors to Aquinas and concludes that, except for some misinterpretations of Aquinas, the contemporary scholars are largely faithful in their *43 respective interpretations.

Jonathan Cantarero, Religion in the Writing: A Literary Analysis of Justice Kennedy on Abortion, 20 U. Md. L.J. Race, Religion, Gender & Class 36 (2020)

This article considers the link between religion and rhetoric in the writing style of Former Supreme Court Justice Anthony Kennedy. During his thirty years on the Supreme Court, Justice Kennedy, a lifelong Catholic, earned a reputation as the pivotal “swing vote” on morally-charged cases, particularly those involving abortion.¹ Given that Justice Kennedy often wrote the majority or concurring opinion in these cases,² it is worth considering whether, and to what extent, his religious views shaped his legal analysis in authoring those landmark opinions.

David A. Cordero Heredia & Nicholas Koeppen, Oil Extraction, Indigenous Peoples Living in Voluntary Isolation, and Genocide: The Case of the Tagaeri and Taromenane Peoples, 34 Harv. Hum. Rts. J. 117 (2021)

This Article utilizes the crime of genocide's requisite elements to analyze the massacres of the Tagaeri and Taromenane Peoples (Tagaeri-Taromenane). The Tagaeri-Taromenane are Indigenous peoples living in voluntary isolation in the Ecuadorian Amazon who are endangered by the oil and timber industries and the expansion of peasant settlements in their territory. This Article first provides a brief history of the Tagaeri-Taromenane massacres and then discusses the “intent to destroy a group” element of the crime of genocide as enumerated in international human rights jurisprudence. In concluding, the authors propose that the oil industry's public and private actors' direct control over the events that led to the massacres could establish criminal liability for those actors.

Jude O. Ezeanokwasa PhD, JCD, LLM, BL, BTh., BPhil, Arresting the Nigerian Herders-Farmers Conflict: The Unconstitutionality of the Ruga Policy, 15 Intercultural Hum. Rts. L. Rev. 171 (2020)

The Ruga policy which the Federal Government claims to be aimed at ending the herders-farmers conflict that has claimed thousands of lives and rendered thousands internally displaced is perceived in most segments of the Nigeria society as a policy that would exacerbate rather than end the conflict. It seeks to establish in the States of the Federation settlements for Fulani herders who are usually illegally armed with guns as against unarmed local farmers. Due to stiff opposition from mostly non-Fulani ethnic nationalities Government suspended the policy. Since the policy is only suspended and not jettisoned, it is possible that government can revisit it. A key step in assessing the germaneness of this policy is whether or not it is in tune with the extant Constitution of Nigeria, the 1999 Constitution, and this paper concludes that it is not.

David F. Forte, The Faith and Moral of Justice Antonin Scalia, 14 Intercultural Hum. Rts. L. Rev. 67 (2019)

During Antonin and Maureen Scalia's honeymoon year, they saw Robert Bolt's play, A Man for All Seasons, in London.¹⁰⁷ St. Thomas More, at least Bolt's depiction of him, became a model for Scalia, or a confirmation of Scalia's own understanding of how he should conduct his own life. More's distinction between the laws of God and the laws of man struck Scalia as just right. More resigned his chancellorship because he could not affirm Henry VIII's illegal divorce and displacement of the Pope as the head of the Church in England. But More was a reluctant martyr. He avoided sacrificing himself for a cause, until there was no other moral option. Through it all, More championed the positive law, “Man's laws, not God's.” It was the rule of law that protects all, even the most evil of men (or *92 spirits). Scalia's law was the Constitution, a noble document, but one which allowed men, and states, to make some kinds of bad law. Like More, Scalia would remain the “King's (the Constitution's) good servant” until there was no other option. And as More would resist the importuning of his son-in-law Roper, so Antonin Scalia would resist the importunings of causes, advocates, and justices (and popes), who thought they had the key to the “law” the supervened the Constitution. When it came, without escape, to a choice between man's law and God's, then More would choose God's law, as would Antonin Scalia, if it ever came to that. But Antonin Scalia fought to make sure that it never did.

Lauren Gilbert, A Justice School: Teaching Forced Migration Through Experiential Learning, 14 Intercultural Hum. Rts. L. Rev. 129 (2019)

The need for committed and competent public interest lawyers has never been greater, in light of the recent assault by our own government on individual rights.¹ We are at a unique juncture in U.S. history where there is both a supply and demand for social justice lawyers.² Law schools, however, still fall short in their support and preparation of students who want to be public interest lawyers.³ As Dean of St. Thomas University School of Law from 1999 to 2003, *130 John Makdisi demonstrated a commitment to training community lawyers who could provide high-quality, low-cost legal services to persons who otherwise would not have access to legal representation.⁴ This article is a tribute to him. Law school administrations that talk the talk of serving underrepresented communities also need to walk the walk by prioritizing such work through their curricular offerings and extracurricular programs, including pro bono activities. It is vital that students see from Day One of law school that they can use their legal training to make a positive difference in the world, and that throughout their three years of law school they learn the doctrine, develop the litigation skills, and have the kinds of experiential opportunities that will prepare them for this work. Law schools that embrace this mission should redefine themselves as justice schools.⁵

Maria Cristina González, Family Law: Above and Beyond the Call of Duty, 14 Intercultural Hum. Rts. L. Rev. 263 (2019)

Family law practitioners play a delicate and important role in the lives of clients and their families. As lawyers, we have a duty and an obligation to listen to and understand the client's legal needs, while competently advocating to meet their goals and expectations. But how often do we really pay attention to the mental and spiritual needs of our clients to achieve their goal? ... This article invites family law practitioners to quiet our own souls by incorporating spirituality or mindful tactics into our own lives first. To go beyond the hourly rate, automated advice and performance, and dig deep inside ourselves to heal and increase our own level of awareness in order to extend consciousness to others. In doing so, we will plant a seed of long-term success and rewards for our clients, while nurturing and maturing the soul of the lawyer in the process.

Stefanus Hendrianto, S.J., The Last Testament of Justice Scalia: On Aquinas and the Law, 34 Notre Dame J.L. Ethics & Pub. Pol'y 197 (2020)

On January 7, 2016, Justice Antonin Scalia delivered his last public lecture, titled Saint Thomas Aquinas and Law. Analysts have criticized Scalia for having an anachronistic reading of Aquinas. But those analysts had missed seeing that Scalia was searching for a deeper meaning instead of chastising Aquinas's theory of law. This Article investigates whether Aquinas's theological insights and Scalia's jurisprudence show similar traits. This Article argues that although Scalia's jurisprudence is not identical with Aquinas's theology, their positions are much closer than people would immediately imagine. They shared similar views on the limits of judicial authority and the need to find a balance between the private goods and the common good. This Article postulates that in his last lecture, Scalia was expressing his fear of subjectivity in the process of judging, in which Aquinas theory of interpretation might justify the volitional status of legal interpretation. Nevertheless, Aquinas believed that a virtuous judge must not seek honor and glory, but rather to direct people toward the common good. Thus, both Aquinas and Scalia shared a similar view that a reasonable judge must avoid sentimentality and personal values in judging.

Lloyd Hitoshi Mayer & Zachary B. Pohlman, What Is Caesar's, What Is God's: Fundamental Public Policy for Churches, 44 Harv. J.L. & Pub. Pol'y 145 (2021)

Bob Jones University v. United States is a highly debated Supreme Court decision, both regarding whether it was correct and what exactly it stands for, and a rarely applied one. Its recognition of a “fundamental public policy doctrine” that could cause an otherwise tax-exempt organization to lose its favorable federal tax status remains highly controversial, although the Court has shown no inclination to revisit the case, and Congress has shown no desire to change the underlying statutes to alter the case's result. That lack of action may be in part because the IRS applies the decision in relatively rare and narrow circumstances. The mention of the decision during oral argument in Obergefell v. Hodges raised the specter of more vigorous and broader application of the doctrine, however. It renewed debate about what public policies other than avoiding racial discrimination in education might qualify as fundamental and also whether and to what extent the doctrine should apply to churches, as opposed to the religious schools involved in the original case. 

Cindy Izquierdo, Not Your Average Summer Camp: Children in Immigration Detention, 22 Scholar: St. Mary's L. Rev. & Soc. Just. 101 (2020)

Plagued by a decade long civil war, funded by the United States government, the United States was a main contributor to the violence that engendered the deaths and displacement of many Salvadorans.² Post-war, a massive and catastrophic wave of prolonged gang violence erupted in the streets of El Salvador.³ The United States was amid the plight of displaced Central American immigrants all along; from contributing billions to corrupt Central American governments, to firearm trafficking, and arming the criminal syndicates that commit violent crimes against children.⁴ ....¹² Deportations further gang behavior because one contributing factor is America's demand for illegal drugs--a lucrative business that entices gang members.¹³

Andrew K. Jennings, Conscience Leave, 35 Notre Dame J.L. Ethics & Pub. Pol'y 649 (2021)

In the federal government, political officials come and go while civil servants remain. In the ordinary course, the political officials make decisions about what policies the government will pursue while civil servants use their labor and expertise to carry those policies out--even when they disagree with them. But what happens when political officials pursue policies that civil servants view as deviating from normal bounds--policies that are unethical, immoral, or unlawful? This Article examines when and how civil servants might object to such policies, including going so far as to leave government service. It concludes that when faced with such situations, employees' personal benefit-cost analyses will generally lead them to not object to deviating policies.

Tamara F. Lawson, Human Dignity: The Clandestine Factor in Prosecutorial Discretion, 14 Intercultural Hum. Rts. L. Rev. 193 (2019)

Justice and human dignity have an organic and symbiotic relationship. The American Bar Association's Functions and Duties of the Prosecutor Standard 3-1.2(a) outlines that “[t]he prosecutor is an administrator of justice ... [and] should exercise sound discretion and independent judgement in the performance of the prosecution function.”¹ The ABA standards further prohibit improper bias² and proscribe a duty to report and respond to prosecutorial misconduct.³ ABA Standard 3-1.2(b) states: “The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict.”⁴ Although rarely openly discussed, I ask now, is it possible to “do justice” while still addressing the human dignity of the criminally accused, the alleged victim, as well as the community? This essay will query whether human dignity plays a role in the prosecutor's daily decisions about justice, and more specifically in the prosecutor's most significant function--the decision to charge or not to charge. Further, if it does play a role, in what manner and in which cases does it *194 operate? Should concerns of human dignity ultimately determine the outcome?

Shaye Loughlin, Conversations from Invisible Neighbors: Fighting the Stigma of Homelessness in Chicago, 13 DePaul J. for Soc. Just. 1 (2020)

Thank you so much for joining us. Today, I think is a great example of DePaul at its best. It's a group of people working together who really care about important social justice issues and bringing the community together to learn and to talk about ways that we can respond to these issues. Each year, the Rinn Law Library sets out to take a deeper dive into a social justice issue. The Center for Public Interest Law and the Journal for Social Justice have been partners in that initiative for the past few years. And this year, that topic is homelessness.

John Makdisi & June Mary Zekan Makdisi, The Transformation of Marriage As A State Institution, 14 Intercultural Hum. Rts. L. Rev. 371 (2019)

The greatest gift God has given us is the ability to love. This article explores the significance of marital love for the well-being of children and how it should be protected through the legal institution of marriage. 

Christopher McCrudden, Indirect Religious Discrimination: Resisting the Temptations of Premature Normative Theorization, 34 Harv. Hum. Rts. J. 249 (2021)

Several jurisdictions appear to be grappling with the concept of indirect religious discrimination at an increased rate. The concept connects intriguingly to the concept of freedom of religion in a way that some legal practitioners describe as familial. Additionally, scholars contest its normative foundations. This Essay focuses on legal measures addressing indirect religious discrimination and seeks to cast some light on each of these issues, particularly the concept's normative foundations. In doing so, the Essay highlights the experience of the development and use of indirect religious discrimination in several European jurisdictions: The United Kingdom--including Northern Ireland, which adopts a somewhat different legal position--France, the European Union, and the European Court of Human Rights (“ECtHR”). The use of indirect religious discrimination beyond these and other European jurisdictions is not addressed in any detail, and international human rights law, except the European Convention on Human Rights (“ECHR”), is not considered. Drawing from these diverse sources, this Essay argues that a convincing general normative theory of indirect religious discrimination law--one which seeks to reflect current legal practice rather than supplant it--is premature in its present state of development.

Veryl Victoria Miles, Looking Beyond the Profit and into the Light: Consumer Financial Protection and the Common Good, 35 Notre Dame J.L. Ethics & Pub. Pol'y 93 (2021)

The intention of this Article is to review the various statements of Catholic Social Teaching that are fundamental in describing economic justice and that are most pertinent to any consideration of consumer financial protection as essential to the common good. This review will begin with Pope Leo XIII's *95 1891 encyclical Rerum Novarum⁴ and other encyclicals that followed Rerum Novarum as a continuum of Church teaching regarding social and economic justice; the pastoral letter from the United States Conference of Catholic Bishops entitled Economic Justice for All (1986);⁵ and the Pontifical Council of Justice and Peace's handbook on the Vocation of the Business Leader (March 2012).⁶ The next Part of this Article will include a description of the original goals and mission of the Act and the CFPB, and an assessment of how the intended goals and objectives of the Act and the structure and activities of the CFPB reflect the values and goals of social and economic justice from the perspective of Catholic Social Teaching. That is, to what extent do these legislative and regulatory initiatives bring us closer to providing for and ensuring that consumer financial products and services are accessible, fair, and helpful in meeting the needs of all potential users and the interests and rights of providers in the spirit of economic justice informed by Catholic Social Teaching?

William P. Quigley, Law or Justice? What Future for the Legal Profession?, 14 Intercultural Hum. Rts. L. Rev. 93 (2019)

Justice for only those who can afford it is neither justice for all nor justice at all.¹Is the future of our profession law or justice? There is a lot of law in our profession. There is some charity and some generosity. Justice? Not nearly enough to suggest it is at the core of our profession, our mission, or our future.

Dean Patricia E. Roberts, Foreword, 23 Scholar: St. Mary's L. Rev. & Soc. Just. XI (2021)

Since my arrival, I regularly encounter the Marianist spirit, a welcoming, inclusive “atmosphere of congeniality.”¹ It is one of the characteristics that called me to St. Mary's initially, the idea that this is a family and that all are invited to sit at the table, a round one with no hierarchy, only equality. Given that we are a Hispanic-serving institution focused on equality around a table, diversity, equity and inclusion are not new concepts for us; they are ever-present as part of the Marianist spirit. 

Gabriel Sáenz, America's Second-Class Children: An Examination of President Trump's Immigration Policies on Migrant Children and Inquiry on Justice Through the Catholic Perspective, 22 Scholar: St. Mary's L. Rev. & Soc. Just. 143 (2020)

We already have the building blocks to establish and codify a universal Just Standard that will protect all children, regardless of immigration status, and is rooted in the strong foundation of Natural Law.³⁶⁸ Together, we can ensure Justice for thousands of immigrant children. For we do not have an illegal immigration problem but a humanitarian crisis.³⁶⁹ I believe it is time for the greatest nation in the world--the United States of America--to become that beacon of light for the world again.

Eugene Scalia, John Adams, Legal Representation, and the "Cancel Culture", 44 Harv. J.L. & Pub. Pol'y 333 (2021)

Intolerance and pressure to suppress ideas that may be unwelcome to some poses a special threat to the legal profession. One of the great traditions of the profession is respect for the right to representation of those with whom we disagree, and even to undertake that representation ourselves. John Adams's defense of the British soldiers charged with the Boston Massacre is one of the Nation's most important stories about the practice of law. Adams later described his defense of the soldiers as “one of the most gallant, generous, manly, and disinterested actions of my whole life.”⁶

Kyle Smith,The Dogma Lives Loudly Within Them: Revisiting the Role of the No Religious Test Clause in Senate Confirmation Hearings , 33 Notre Dame J.L. Ethics & Pub. Pol'y 313 (2019)

The broad wording of the religious test ban in Article VI engraved a policy of religious nondiscrimination on the foundation of the Republic. During an era of intense religious sectarianism, the rule shaped a culture of cooperation and inclusiveness indispensable to the preservation of the Union. The bold step taken to ban religious tests for offices in the United States radically cut against the prevailing norms and forged a new norm to serve as a North Star for future generations. As so many confirmation hearings continue to show, we find ourselves again at a point where sectarianism is deeper than ever. Sectarianism has inspired discrimination and religious tests which, due to their regularity and predictability, contravene the letter, spirit and implications of Article VI. The Constitution's structure makes the issue virtually inaccessible to judicial review or any check or balance. Constitutional norms in effect today demonstrate that this lack of cross-government accountability is no barrier to the restoration of religious nondiscrimination in the Senate, but it is imperative that supporters of nondiscrimination ensure that this norm is sufficiently established before it becomes overshadowed by the emerging desires to narrow protections into irrelevance.

Elizabeth Totzke, Note: The Catholic Church and the Paycheck Protection Program: Assessing Nondiscrimination after Trinity Lutheran and Espinoza, 96 Notre Dame L. Rev. 1699 (2021)

Despite the heated response to the Catholic Church's receipt of government funding, the SBA adopted the constitutionally correct standard when it deemed the Catholic Church, as well as other houses of worship, eligible for PPP loans. Although American culture and media continue to cling to the traditional notion of the "wall of separation between church and state," the Court has long abandoned such a paradigm. Most recently, in Trinity Lutheran and again in Espinoza, the Court has embraced a principle of nondiscrimination, which prohibits the government from excluding religious entities based on status alone. 189Moreover, the legal "writing on the wall" suggests this new principle is part of a larger trend, with several members of the Court willing to continue to expand this doctrine in favor of religion. Because the SBA's official policy, which remains in force, relies on a prohibited status-based discrimination, the SBA should, as FEMA did in 2017, officially adopt its inclusive PPP policy. 190And, other federal agencies should do the same. Such policies not only better align with the Court's First and Fourteenth Amendment jurisprudence, but it also ensures religious entities - as well as those who they employ - are not disadvantaged when the next disaster inevitably strikes. The Free Exercise Clause requires nothing less, and the Establishment Clause requires nothing more.

W. Bradley Wendel, Truthfulness and the Rule of Law, 35 Notre Dame J.L. Ethics & Pub. Pol'y 795 (2021)

This paper is a defense of a principle of the public ethics of truthfulness, understood as a practice of reason-giving that contrasts with the raw exercise of arbitrary power.² Basic to the analysis here is the distinction between power, coercion, brute force, or domination, on the one hand, and justified, permissible action, on the other. Fundamental normative notions in moral and political philosophy such as rights, justification, legitimacy, and legality all attend in some way to this distinction.³ On one influential conception of morality, an act is wrong if it would be disallowed by a set of principles that no one could reasonably reject.⁴ In political philosophy, John Rawls argued that all citizens, which would certainly include public officials, have a moral duty of civility to explain how the policies they advocate for, and which involve the exercise of political power, are supported by reasons that all affected persons can be expected to endorse.⁵ Common to these positions is the notion of reason-giving *796 and the acceptance (or rejection) of reasons by autonomous agents, each acting on their own judgment about the right, the good, and justice. Moral justification and political legitimacy acknowledge others as free and equal,⁶ treat them with respect or as ends in themselves,⁷ and establish a relationship of mutual accountability, by insisting that actions be based on reasons that are acceptable to those whose interests are affected.

Siegfried Wiessner & Roza Pati, John and June Mary Makdisi: An Intellectual and Moral Journey, 14 Intercultural Hum. Rts. L. Rev. 1 (2019)

These introductory pages are not enough to do justice to John and June Mary. They are the salt of the Earth. We humbly invite the reader to consider these lines as but the scaffolding, the prelude to the exciting and variegated essays and articles that follow. They will add the deserved elegance to this issue centered on the importance of morals to law--the guiding light of John and June Mary. To us, they are irreplaceable pillars of support. To each other, they are the whole world--a world they want to see embraced in love and for which they join in the favorite prayer of June Mary, the prayer that has inspired her entire adult life: The Peace Prayer of St. Francis of Assisi.

John Witte, Jr. and Justine J. Latterell, Between Martin Luther and Martin Luther King: James Pennington's Struggle for "Sacred Human Rights" Against Slavery, 31 Yale J. L. and Human, 205 (2020)

This Article outlines the human rights theories of nineteenth-century abolitionist and civil rights leader James Pennington. Born into slavery in Maryland, Pennington escaped North and became the first African American to attend Yale. As an ordained Presbyterian clergyman, educator, orator, author, and activist, he adapted traditional Protestant rights theories explicitly to include the rights of all, regardless of race. He emphasized the authority and freedom of the individual conscience as foundational to human rights. He advocated a central role for covenantal institutions including church, state, family, and school as essential for fostering a law and culture of human rights. And he defended the right of all to disobey unjust laws and resist tyrannical regimes. Pennington bridged these theories in novel ways with pacifist teachings, anticipating by more than a century the American civil rights movement led by Martin Luther King, Jr., and others. Though largely forgotten by historians, Pennington was well known and influential among his contemporaries. His life and work represent an important step in the development of law, religion, and human rights.

Henry Amoroso, Paula Alexander Becker, and Evan Weiss, A Social Contract: The Doctrine of Unconscionability and its Relation to Social Progress, 28 Cardozo J. Equal Rts. & Soc. Just. 51, (2021)

The current structure of American contract law may limit the availability of adequate remedies for citizens within certain socioeconomic strata who, in the formation of a contract, often experience an asymmetry of information, financial resources, and lack what is broadly termed social capital. This paper further argues that this population might be better served by expanding how the court interprets and applies the doctrine of unconscionability through a reexamination of the foundational principles that led to its codification in the 1950s in the Uniform Commercial Code. Throughout this paper, I will also consider how several foundational principles of Catholic Social Teaching closely align with the foundational principles of American law and unconscionability, namely: solidarity, subsidiarity, a clarified accounting of freedom and equality, and, most importantly, the absolute dignity of the human person. By coming to a better understanding of these foundational principles shared across the American legal and Catholic intellectual traditions, we will be better suited to judge the appropriate application of the doctrine of unconscionability itself. Applications are made to living wage and guaranteed basic income initiatives.

Eric Fleetham, Another Trip Around Article 2 Remedies: Why the U.C.C. Precludes Sellers from Recovering Market Price Damages in Excess of Resale Damages, 20 Ave Maria L. Rev. 28 (2022)

Admittedly, the Code may not be as clear as we may like it to be, and its lack of clarity has led to debate among commentators and also contributed to conflicting court opinions. While the problem presented in this article is not one to arise frequently, the failure of courts to get it right can have significant consequences, not only monetarily but also in running afoul of the Code's policy for remedies. Yet, a clearer picture emerges when we return to the text, purpose, and context of the Code. Indeed, one need not look very deep into the Code, as Section 1-305 provides the answer. The answer given there is clear and simple: any award that puts the seller in a better position than it would have been in had the buyer performed is not allowed. As one judge rightly noted, courts should be “reluctant to endorse any position that runs counter to this policy.”¹²⁹ Therefore, a seller should not be awarded market price damages that exceed resale damages.

Lydia Montalbano, Brain-Machine Interfaces and Ethics: A Transition from Wearable to Implantable, 16 J. Bus. & Tech. L. 191 (2021)

BMI represents a communication system in which messages of commands sent by individuals to the external world bypass the normal brain output pathways linked to peripheral muscles and nerves.⁴ As predicted theoretically, BMI is supposed to support people's control of many live aspects, but they still lack practical proof.⁵ It *192 is agreeable that there is limited interpretation or comprehension of the consequences and impacts of BMI.⁶ Besides, many doubts associated with ethical, moral, philosophical, and religious thinking of how such technology transforms society have been expressed.⁷ The development of bioengineering has slowly diminished society's limits, science and engineering, living/non-living, health improvements, nature, technology, and machine/human intelligence.⁸ These transformations have made society uncomfortable since they ignore basic concepts of life, describing the world's meaning and what constitutes a human being.⁹ Owing to the importance of BMI in the current digital society, it is essential to gain an in-depth understanding of the concept. This article examines BMI in-depth and its associated ethical problems.

Daniel J. Morrissey, The Promise of Stakeholder Advisory Councils, 23 U. Pa. J. Bus. L. 470 (2021)

Did you ever expect a corporation to have a conscience, when it has no soul to be damned, and no body to be kicked?”-- Baron Thurlow, Lord Chancellor of England¹Large public corporations have made tremendous contributions to our society. We benefit from their continuing innovations in the products and services that touch our lives many times each day. And they furnish gainful employment to large numbers of people.² When run honestly and in a manner sensitive to the concerns of their customers and the public at large, they have been a huge asset to our common life.³

Pedro Rodriguez-Ponga, SJ, Catholic Cosmopolitanism and Human Rights. by Leonard Francis Taylor. Cambridge: Cambridge University Press, 2020. Pp. 300. $110.00 (Cloth); $88.00 (Digital). Isbn: 9781108486125, 36 J.L. & Religion 171 (2021)

The relationship between the Enlightenment and Roman Catholicism has historically been convoluted. In Catholic Cosmopolitanism and Human Rights, Leonard Francis Taylor successfully claims that there can be a fruitful dialogue between the two if both agree on moderating their discourses. As Taylor shows, contrary to what most people believe--that the exchange only started in the twentieth century--Roman Catholicism is inherently universal and therefore cosmopolitan. Hence, the relationship is meant to be a natural one. The book comes out in a moment in which Pope Francis is deepening the cosmopolitan trend of Catholicism and is committing himself and the whole church to a sincere conversation with secular modernity by engaging leaders of other religions, meeting with different Christian churches, visiting small countries, and dialoguing with heads of state. This work is therefore an excellent tool to understand this papacy and the role of Catholicism in the contemporary world.

Scott J. Shackelford, Inside the Drive for Cyber Peace: Unpacking Implications for Practitioners and Policymakers, 21 U.C. Davis Bus. L.J. 285 (2021)

Too often, the international community is focused on responding to the latest cyber attack, disinformation campaign, or escalation. From ransomware afflicting the City of Baltimore, to state-sponsored campaigns targeting electrical grids in Ukraine and the United States, we seem to have relatively little bandwidth left over for asking the big questions, including: what is the best we can hope for in terms of “peace” on the Internet, and how might we be able to get there? More broadly, what are the long-term implications for such pervasive cyber insecurity across the public and private sectors, and how might they be curtailed? This Article dives into the history and evolution of cyber peace, including an analysis of lessons from analogous contexts such as U.N. peacekeeping efforts and the Digital Blue Helmets Initiative. These findings are then contextualized by reviewing recent efforts aimed at promoting cyber peace, including the Paris Call for Trust and Security in Cyberspace, the Christ Church Call, U.N.-centered norm building efforts such as through the Group of Government Experts, Global Commission on Cyber Stability, and the Digital Geneva Convention. These efforts are conceptualized within a polycentric framework, emphasizing practical implications for practitioners and policymakers.

Ryan Snyder, Trading Nonenforcement, 39 Ga. St. U.L. Rev. 777 (2023)

In recent years, federal agencies have increasingly used nonenforcement as a bargaining chip promising not to enforce a legal requirement in exchange for a regulated party's promise to do something else that the law doesn't require. This Article takes an in-depth look at how these nonenforcement trades work, why agencies and regulated parties make them, and the effects they have on social policy. The Article argues that these trades pose serious risks: Agencies often use trading to evade procedural and substantive limits on their power. The trades themselves present fairness problems, both because they tend to reward large, well-connected firms and because they often coerce regulated parties that lack bargaining power. Moreover, the agency's nonenforcement promises aren't binding thus, even if a regulated party upholds its end of the bargain, the agency can always renege on the deal. The Article concludes by identifying several possible solutions that might discourage agencies from trading nonenforcement.

J. Joel Alicea, The Moral Authority of Original Meaning, 98 Notre Dame L. Rev. 1 (2022)

Originalists have often been uncomfortable making moral arguments, but the natural law critique of originalism's moral foundations has forced the issue. Those foundations, properly understood, are found in the very natural law tradition that originalism's critics (including Vermeule) embrace. It is the original meaning that preserves the people's legitimate political authority, and it is their legitimate political authority that secures the common good. The moral authority of original meaning is the justification for originalism.

Hadley Arkes, Religious Freedom and the Crisis over Conservative Jurisprudence, 10 Faulkner L. Rev. 171 (2019)

There is nothing all that difficult in adding to conservative jurisprudence the common sense of natural law, and it would draw on things so readily understood by ordinary folk that the move may hardly seem unsettling. But the law it would make would take hold at once with a resonance in the common understanding of ordinary people.

Elise Bavazzano, Judge, Juror, and the Holy Spirit, (Amen!): The Split on Religious-Based Peremptory Challenges and Juror Disqualification, 21 Rutgers J. L. & Religion 379 (2020)

The glaring issues involving religion continue to play a key role in the legal landscape of this country and it is evident that remedies are lacking-- other than the Supreme Court issuing a definitive ruling (which it is extremely reluctant to do as evidenced here). Religion is inherently enmeshed with other complex issues of race, capital punishment, and jury duty, so it is understandable that any decision related to it may be incendiary. But, with significant federal circuit splits and state courts diverging so significantly on peremptory challenges and juror disqualification, a binding precedent should be set. This is especially true in the context of capital cases where the consequences of a papal pronouncement can have a dramatic influence on the jury pool. The majority of courts declining to expand Batson cite that their primary reason for rejection, besides the lack of Supreme Court direction, is that religion has not been the object of discrimination nearly to the same degree as race or gender. But, with these new developments in the Catholic Church and the ever-evolving country we live in, perhaps it is best not to wait for that to happen.

Thomas C. Berg, Douglas Laycock, Espinoza, Government Funding, and Religious Choice, 35 J.L. & Religion 361 (2020)

The U.S. Supreme Court's decision in Espinoza v. Montana Department of Revenue, holding that religious schools cannot be excluded from a state program of financial aid to private schools, is another incremental step in the Court's long-running project to reform the constitutional law of financial aid to religious institutions. There was nothing surprising about the decision, and it changed little; it was the inevitable next link in a long chain of decisions. To those observers still attached to the most expansive rhetoric of no-aid separationism, it is the world turned upside down. But the Court has been steadily marching away from that rhetoric for thirty-five years now. The more recent decisions, including Espinoza, do a far better job than no-aid separationism of separating the religious choices and commitments of the American people from the coercive power of the government. And that is the separation that is and should be the ultimate concern of the Religion Clauses-- to minimize the government's interference with or influence on religion, and to leave each American free to exercise or reject religion in his or her own way, neither encouraged by the government nor discouraged or penalized by the government.

Thomas C. Berg, Religious Freedom Amid the Tumult, 17 U. St. Thomas L.J. 735 (2022)

The US Supreme Court term ending in summer 2020, and the opening weeks of the next term, were action packed for religious freedom. The Court decided six cases pertaining to the issue in the 2019-20 term--double, even triple, the usual number--in contexts from school choice to public-health closures of churches to clashes between religious liberty and nondiscrimination laws.¹ The decisions also came at a time of extraordinary stress and turbulence in society, and they relate in striking ways to those forces of turbulence. This article discusses religious freedom in relation to three Ps of turbulence: pandemic, polarization of culture and politics, and protests over racial injustice.

In each of these areas, the article does two things. First, it explains the Court's approach to religious freedom in several, although not all, of the 2020 and 2021 cases. Second, it suggests arguments and lessons for defending religious freedom today as a vital aspect of human dignity along with other rights and interests.

Thomas C. Berg, Religious Freedom and the Common Good: A Summary of Arguments and Issues, 15 U. St. Thomas L.J. 517 (2019)

Johnson identifies a significant scholarly gap: “Despite the thousands of studies documenting the benefits of religion and religious practices to individuals as well as society, only a small number of studies have examined the contributions or effectiveness of faith-based organizations.”¹¹ Noting a few controlled studies documenting the relative effectiveness of organizations attacking child poverty and prisoner recidivism, Johnson suggests that more extensive, rigorous research could show that the “impact of faith-based organizations may likely be far more consequential for the common good than people imagine.”¹² He argues that further research could attract media attention to the benefits, not just the harms, from religion; could teach how to improve faith-based organizations' work; and most relevant here, could help strengthen the case for religious freedom. “Research that accurately estimates the economic value and social contribution of the ‘faith factor’ should make it easier to advocate the case that society benefits when religion is allowed to flourish. Conversely, society will suffer when religion is restricted.”¹³

Brian Grim, president of the Religious Freedom and Business Foundation, has co-published a widely noted study, which he explains here, estimating the annual value that religious organizations and activities add to society.¹⁴ The estimate begins with the revenue of the hundreds of thousands of religious congregations, educational institutions, health-care networks, charitable social services, media entities, and food providers.¹⁵ On top of that, however, are indirect or “halo” effects--for example, “having the stable, attractive force of a congregation in a community, providing a center for education, childcare, social events, charity, and job training, ... [as well as] provid[ing] a sizeable number of jobs”¹⁶--which together amount to four times the actual direct spending by the congregations.¹⁷ Further including “halo effects” from separate charitable institutions, as well as the revenues of religiously inspired businesses and religiously themed films, produces a yearly economic value of American religion of almost $1.2 trillion¹⁸--an estimate that may be conservative but that still amounts to “the world's fifteenth largest national economy.”¹⁹ As Grim acknowledges, *521 the figure “does not account for the negative impacts that occur in some religious communities, ... [such as] the abuse of children by some clergy, cases of fraud, and the possibility of being recruitment sites for violent extremism”--but those costs, he argues, must be weighed in the light of religion's “purpose-driven institutional and economic contributions to health, education, social cohesion, social services, media, food and business itself.”²

Michael Berry & Antony Barone Kolenc, Born-Again Rfra: Will the Military Backslide on Its Religious Conversion?, 87 Mo. L. Rev. 435 (2022)

This Article details the importance of religious freedom in the United States and its armed forces, as well as the unfortunate history of non-accommodation that has plagued the Department of Defense (DoD) until recent years. It reviews the jurisprudence surrounding military service member free-exercise claims before and after the landmark Religious Freedom Restoration Act (RFRA) of 1993, and it analyzes how courts have addressed those claims within the military. It proposes an analysis for handing religious accommodation claims under RFRA in the military, and examines a series of hypotheticals that demonstrate the issues the DoD must confront and accommodate if it is to value its members' religious liberty.

Clint Bolick, The Dimming of Blaine's Legacy, Cato Sup. Ct. Rev., 2019-2020, at 287

No sooner is the ink dry on a Supreme Court decision than creative minds begin to engage over the next one. Espinoza, in a very important sense, is the culmination of a long journey meant to make America safe for school choice. But Court opinions, especially those decided by a 5-4 vote, are rarely the final word unless future courts determine they are worthy of reverence. Whether Espinoza falls into that category is left to future judgment. But, for the moment, school-choice advocates have a victory to cherish.⁶

Kathleen M. Boozang, A Light Unseen?, 58 J. Cath. Legal Stud. 5 (2019)

A Light Unseen is an incredibly important work of scholarship that has given me an opportunity to be introspective, to give order to what perhaps has been too intuitive, and to be inspired to think about how to better define, pursue, and measure progress in achieving the mission of being a Catholic law school.⁸

Gerard V. Bradley, Moral Truth and Constitutional Conservatism, 81 La. L. Rev. 1317 (2021)

Conservative constitutionalism is committed to "originalism," that is, to interpreting the Constitution according to its original public understanding. This defining commitment of constitutional interpretation is sound. For decades, however, constitutional conservatives have diluted it with a methodology of restraint, a normative approach to the judicial task marked by an overriding aversion to critical moral reasoning. In any event, the methodology eclipsed originalism and the partnership with moral truth that originalism actually entails. Conservative constitutionalism is presently a mélange of mostly unsound arguments against the worst depredations of Casey's Mystery Passage. The reason for the methodological moral reticence is easy to see. It came into being as an understandable strategy to halt the Warren Court's judicial activism. The conservative diagnosis was simple, and largely correct: judicial philosophizing not called for by the constitutional text or by a sound interpretation of it lay at the root of these judicial excesses. The treatment that conservatives prescribed hit the mark they sighted. Where resort to moral reasoning seemed inescapable, conservatives turned to some species of conventional moral belief, usually to what some group thinks, or once thought. Conservative constitutionalists have been committed to an "objectivity" wherein facts about what some believe to be morally sound folded into a regimen of restricted legal reasoning from text, history, structure, and precedent. This conservative constitutionalism is well-suited to damage control whenever legal elites are in thrall to unsound moral and political philosophies. Conservative constitutionalism can even stymie for a time the introduction of new mistaken premises. But now, more than 50 years into the revolution, contemporary constitutional conservatism is incapable of wresting control of the law back from the regime-changing project of autonomous self-definition. We have passed a tipping point where damage control amounts to no more than a slow-walking surrender. Conservative constitutionalists need only choose originalism, which will lead them to recognize the necessity for strategic resort to critically justified metaphysical and moral truths, as the Constitution directs. In fact, the contemporary judge can be faithful to the Founders only by sometimes relying on moral and metaphysical truths that lie beyond the Constitution. These truths include, crucially, answers to such foundational questions as: When do persons begin? What is religion? Which propositions about divine matters are answerable by use of unaided human reason? What is the meaning of that "marriage" that Supreme Court cases for over a century have spoken of, when it declares that everyone has a "fundamental right to marry"? The truth about constitutional law is that, sometimes, the problem with an errant Supreme Court opinion is not that it relies on philosophy, but that it relies upon bad philosophy. Then the conscientious judge is obliged to replace bad philosophy with good philosophy. And the linchpin of that good philosophy is the "liberty," not of self-creation ex nihilo, but of self-constitution in a morally ordered universe.

John M. Breen, Lee J. Strang, A Light Unseen: The History of Catholic Legal Education in the United States: A Response to Our Colleagues and Critics, 59 J. Cath. Legal Stud. 1 (2020)

We are enormously grateful to the Journal of Catholic Legal Studies for hosting the conference on February 14, 2020, dedicated to a review of our book manuscript, A Light Unseen: The History of Catholic Legal Education in the United States, and for publishing the papers of the conference participants.¹ The book describes the purposes for which Catholic law schools were founded, the schools maturation and success in achieving accreditation and some measure of respectability,² and their search for meaning since the 1960s-1970s when the prior unreflective cultural Catholicism of these schools dissipated and in some cases disappeared almost entirely. A Light Unseen's last chapter provides a blueprint for the creation of authentically Catholic legal education grounded in the Catholic intellectual tradition. In particular, we argue that Catholic law schools reach their fullest expression when their teaching, scholarship, and student formation-- their intellectual hearts--employ the Catholic intellectual tradition and its moral anthropology.

Olivia Brown, Melanie Collins, Hange (Hera) Liao, Lydia Tsao, Tracey Zhang, Religious Exemptions, 20 Geo. J. Gender & L. 397 (2019)

The United States Constitution grants religious freedoms to its citizens. These religious freedoms can come into tension with the laws of the United States, in particular, public accommodation laws. The recent Masterpiece Cakeshop decision highlights the prevalence of these conflicts and the importance of these religious exemptions cases.¹ Religious exemptions are often viewed as “carve outs” *398 to laws and policies. These exemptions enable individuals, organizations, or businesses to be exempt from-- or, in other words, to not be subject to--a law or policy if they believe that the law or policy violates their religious beliefs.² Grounded in the First Amendment, the ministerial exception and statutory exemptions like the Religious Freedom Restoration Act (“RFRA”) create exemptions for organizations based on their religious beliefs to exclude certain individuals from membership (for example, members of the lesbian, gay, bisexual, and transgender (“LGBT”) community) and refuse services to certain individuals (for example, in healthcare, housing, and baked goods). This creates tension between public accommodations laws designed to ensure equal access to non-public forums and organizational policies that exclude members based on their gender or sexual orientation. To decide if a public accommodations law violates the constitutional freedom of religion, the Court evaluates whether--typically under the Religious Freedom Restoration Act (“RFRA”)--the enforcement of a religiously neutral law against an individual “substantially burdens the individual's religious exercise and is not the least restrictive way to further a compelling government interest”³ or whether the ministerial exception applies, which “precludes application of such legislation to claims concerning the employment relationship between a religious institution and its ministers.”⁴ This article examines how the Court resolves the tension between ensuring religious freedoms for its citizens and maintaining other guaranteed rights and protections.

Maria Cahill, Subsidiarity As the Preference for Proximity, 66 Am. J. Juris. 129 (2021)

This article reflects on subsidiarity as the preference for proximity. In doing so, it focuses both on the idea of the preference for proximity and the preference for proximity. The impetus for doing so is Nick Barber's book The Principles of Constitutionalism, which counts subsidiarity as one of six principles that a constitution should embrace, and which theorizes subsidiarity as a commitment to democracy. This article considers, in Part II, the implications of considering subsidiarity as a preference, and in particular the challenges that creates for the project of adopting subsidiarity as a constitutional principle. It goes on, in Part III, to explore the constitutional principle of subsidiarity proposed by Barber, highlighting unique features of this theory of subsidiarity and evaluating the extent to which, by focusing on subsidiarity as democratic commitment, Barber's theory provides a viable account of the preference for proximity.

llen Calhoun, Liberal Suppression: Section 501(c)(3) and the Taxation of Speech. by Philip Hamburger. Chicago: University of Chicago Press, 2018. Pp. 432. $55.00 (Cloth); $55.00 (Digital). Isbn: 9780226521947, 36 J.L. & Religion 155 (2021)

The presenting issue in Philip Hamburger's Liberal Suppression is the internal tension within section 501(c)(3) of the US Internal Revenue Code. On the one hand, that celebrated provision exempts churches, schools, and charities (collectively, “idealistic organizations”) from federal taxation; on the other, it denies exemption to the same entities if they engage in political speech. Thus, in Hamburger's view, the section both upholds and undermines the First Amendment at the same time.

Angela C. Carmella, Reflections on Breen & Strang's A Light Unseen: A History of Catholic Legal Education in the United States, 58 J. Cath. Legal Stud. 15 (2019)

In A Light Unseen: A History of Catholic Legal Education in the United States, Professor John Breen and Professor Lee Strang have undertaken a monumental task and have produced an impressive book, particularly with respect to the fascinating history of the development of Catholic legal education. They provide a thoughtful consideration of how Catholic law schools can be more distinctively Catholic and make a strong case for the critical need for more explicit curricular and scholarly integration of the Catholic intellectual tradition. In this Essay, I make suggestions in three areas: (1) on the record regarding failed efforts to develop a distinctly Catholic approach to legal education; (2) on the inculturation of the Catholic intellectual tradition within the law school; and (3) on the virtues shaping the Catholic law school professional ethics curriculum.

Katarina I. Chavez, The Problems with the Solutions: Examining the Response from Universities, President Trump, and State Legislatures to Campus Free Speech Issues, 19 Ave Maria L. Rev. 146 (2021)

Giving state legislatures the responsibility of regulating how universities formulate their speech policies would be proper if a balance is struck between protecting free speech without “expand[ing] government oversight.”²³⁷ Universities would still be free to administer their campuses in the best way they see fit, provided that their authoritative position remains constitutional.²³⁸ Universities implementing policies based on state laws--specifically those that uphold the Constitution²³⁹--can defer the responsibility of generating such policies that firmly reflect a long-line of detailed (and nuanced) free speech case law to state legislatures.²⁴⁰ Flaws in policy language that once resulted in a FIRE “red light” or “yellow light” rating could easily be solved if the university were to rely on a fully constitutional state bill for reference.²⁴¹ If state legislatures can rely on judiciary interpretation, and higher education institutions can uniformly rely *178 on state legislation, then perhaps there is an effective solution to offer universities guidance on specific ways to formulate free speech provisions that uphold constitutional liberties.²⁴²

John Cheffers, Entrusting Foxes with the Hen House: How A Bad Law Pits Big Pharma and the Federal Government Against Vaccine-Injured Children, 18 Ave Maria L. Rev. 194 (2020)

As it stands today, the NCVIA creates a set of incentives that encourages vaccine manufacturers to be careless and HHS to deny a full remedy to many people injured by vaccines. Congress will need to substantially rewrite the law if it wishes to accomplish its goal, stated at the beginning, that *221 compensation for injuries ought to be “fair, simple, and easy to administer.”²³⁷ The story of Andrew Clements, shared by many other Americans, demonstrates how short the NCVIA has fallen. Hopefully, Congress will correct its mistake before it finds itself in a public health crisis of its own making.

Teresa Stanton Collett, Saints, Sinners, and Scoundrels: Catholic Law Faculty and A Light Unseen: A History of Catholic Legal Education in the United States, 58 J. Cath. Legal Stud. 29 (2019)

As a faculty member at a Catholic law school for the past seventeen years, I have often been frustrated with the inability of many professors and administrators at Catholic law schools to describe what makes a law school “Catholic.” As Professors Breen and Strang report in A Light Unseen: A History of Catholic Legal Education in the United States, too often the description is limited to something like “a commitment to social justice,” or “inculcating a strong sense of professional ethics.” Yet as the authors observe, “Catholic law schools do not have a monopoly on or even a special claim to caring for the poor or promoting professional virtue.”¹ Breen and Strang trace how we got to this place and propose an ambitious path to the “Light Unseen.”

Kody W. Cooper, What Happened to Natural Law in American Jurisprudence?, 22 Federalist Soc' Rev. 316 (2021)

Banner's book is a tour-de-force, chalk full of supporting evidence for its contentions and rich with more interesting insights than I could possibly do justice to here. The ultimate conclusion--that natural law's decline dovetailed with the transformation of the role of a judge as a finder into a maker of law--is substantiated. This book should be considered a major achievement and singular contribution to the literature on natural law and American constitutionalism.

Neville Cox, Justifying Blasphemy Laws: Freedom of Expression, Public Morals, and International Human Rights Law, 35 J.L. & Religion 33 (2020)

In its General Comment No. 34 dealing with freedom of expression, the United Nations Human Rights Committee (UNHRC) rejected the idea that a blasphemy law could ever be human-rights compliant, unless its function was to prevent incitement to religious or racial hatred. This is a widely shared view that is consistently endorsed when any international blasphemy controversy (such as that involving the Danish Cartoons in 2005) arises. This article assesses the legitimacy of this view. The International Covenant on Civil and Political Rights (ICCPR) permits freedom of expression to be limited inter alia in the name of public morality, provided that the law in question is also necessary to achieve this end. This article argues that because a blasphemy law can be a response to a public moral vision; therefore a blasphemy law can serve a legitimate purpose insofar as human rights law is concerned. It is further submitted that whereas some blasphemy laws are unacceptably draconian, it is not inherently impossible for such a law to represent a proportionate response to a public morals concern. Thus, the conclusion from the UNHRC is not warranted by the text of the ICCPR. Moreover, there is a risk that, in reaching this conclusion the committee is evincing an exclusively secularist worldview in its interpretation of the ICCPR that undermines its claim to universality.

David A. Daigle, Daniel V. Goff, Beyond Lawyer Assistance Programs: Applying the United States Marine Corps' Concepts and Principles of Spiritual Fitness As A Means Towards Increasing the Health, Resiliency and Well-Being of Lawyers-While Restoring the, 59 J. Cath. Legal Stud. 51 (2020)

Lawyer Assistance Programs (“LAPs”) are recognized as an invaluable tool for increasing well-being by assisting lawyers to secure confidential treatment in order to overcome various addictions and mental health issues. The 2017 report by the National Task Force on Lawyer Well-Being underscores this notion by asserting that LAPs “play a pivotal role in lawyer well-being.”² While this is true, the legal profession would do well to look beyond LAPs and broaden its discussion regarding wellness. In particular, the American Bar Association (“ABA”) should more *52 robustly recognize and encourage spirituality as a means towards health, resiliency, and well-being, much like the United States Marine Corps (“USMC”) has done. Spirituality,³ as viewed by the USMC, is another valuable resource, among others, that is an important means to increase the health and resiliency of its members.⁴ Indeed, spiritual fitness is prominently referenced *53 and has its own section in the official website of the USMC maintained by Headquarters Marine Corps.⁵ Along with this, General Robert B. Neller, then Commandant of the USMC, recognizing the importance of spiritual fitness in a 2016 ALMAR⁶ message to all Marines, stated that “[r]esearch indicates that spiritual fitness plays a key role in resiliency, in our ability to grow, develop, recover, heal, and adapt. Regardless of individual *54 philosophy or beliefs, spiritual well-being makes us better warriors and people of character capable of making good choices on and off duty.”⁷

Jonathan D'Errico, Of Swords and Plowshares: The Authority for Defensive War in Jewish Law, Canon Law, and Islamic Law, 20 Rutgers J. L. & Religion 22 (2019)

Human proclivity to war remains a scourge even in the modern era--swords abound amid a want of plowshares. However, not all wars are created equal: a defensive war waged in response to external aggression has long been recognized as a justifiable state of conflict.² Under international law, a defensive war is a military response designed to ensure self-preservation in the face of an imminent threat or attack.³ A state of defensive war is, by definition, a desperate time wherein “the necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation.”⁴

Marc O. DeGirolami, Establishment's Political Priority to Free Exercise, 97 Notre Dame L. Rev. 715 (2022)

This Article contests these views. The fundamental rules and norms constituting the political regime - what the Article calls "the establishment" - have now, and have always had, political priority to rights of exemption from it. This basic claim may be narrowed to the issue of church and state, but it is simply a more focused version of the same thing: the establishment's civil religion - the set of transcendent, church-state propositions that support the political regime's legitimacy and authority - has political priority to rights of exemption from it. Narrowed further, the basic claim also reflects the dynamics of Religion Clause doctrine: religious exemption's contemporary ascendance is an epiphenomenal consequence of the civil religion dismantling effected by the Supreme Court's Religion Clause doctrine in the twentieth century and consolidated by the Court in the twenty-first. Though today's most divisive law and religion controversies often take surface-level legal shape as conflicts about free exercise exemption, their deeper source is a long-gestating transformation in the nature of the American political regime's civil religion establishment. Today's free exercise cases are the latest skirmishes in yesterday's disestablishment wars. They reflect disagreements over how best to characterize the work of the dismantlers, as well as efforts toward consolidation of that work to achieve a new civil religion regime. And what they show is that in twenty-first century America, just as ever, establishment still takes political priority to free exercise.

Ligia De Jesús Castaldi, Derechos humanos: perspectivas de juristas iusnaturalistas: Tomo I: sustento histórico, antropológico y filosófico de los derechos humanos / coord. por Augustin Antonio Herrera Fragoso, (2022)

Actualmente nos encontramos ante una notable disrupción y desnaturalización de los Derechos Humanos,en razón de haberse distorsionado completamente sus fundamentos, fuentes, contenido e interpretación. Lo anterior está generando la existencia de unos Derechos Humanos líquidos, moldeados al tenor de ideologías que buscan la deconstrucción de la persona humana y de la familia, por medio de una Libertad individualista sin límites, que termina por dañar tanto a las personas individualmente consideradas, como a la sociedad en su conjunto, al career de la base axiológica común y perene de los Derechos Humanos auténticos y originarios, derivada de la Ley Natural. Es la anterior encrucijada la que nos ha impuesto a la tarea exponer a través de la presente obra a los académicos de gran calado intellectual con pensamiento iusnaturalista del mundo latino, para develar, fundamentar y defender los Derechos Humanos con base histórica, antropológica y axiológica.

Ligia De Jesús Castaldi, Unborn Human Life and Fundamental Rights, Leading Constitutional Cases under Scrutiny, 90 Prudentia Iuris 21 (2020)

El libro es sin duda una solida fuente de informacion sobre la legalizacion internacional del aborto en el occidente, y por la autoridad academica de sus autores, tambien una importante critica filosofica de la promocion internacional del aborto como un derecho humano. Esperamos que sea solo el primero de varios estudios filosofico-legales que revelen el deficit democrdtico del que sistemdticamente adolece la creaci6n de un derecho legal al aborto, tanto con un enfoque iusnaturalista como positivista.

John C. Eastman, "Religiously Scrupulous": Freedom of Conscience at the Founding, 17 Ave Maria L. Rev. 18 (2019)

When we think of freedom of conscience at the founding, we most often think of the degree to which our nation's constitutions and laws sought to protect an individual right to practice one's religion or to hold views contrary to the mainstream of society. And the founding era documents are rich with discussions of that sort, a small sampling of which are addressed in Part I. But there is at the founding also the view that the philosophical underpinnings of the individual right to freedom of conscience serve a broader function than the mere protection of individual rights. As I explore in Parts II and III below, the philosophical foundation for the individual right is also the “self-evident” premise on which the entire edifice of republican (small “r”) government is based, and the means for its preservation. This article aims to explore all three aspects of the Founders' views on the freedom of conscience.

Dörthe Engelcke, Establishing Filiation (Nasab) and the Placement of Destitute Children into New Families: What Role Does the State Play?, 34 J.L. & Religion 408 (2019)

The article comparatively maps state involvement in the establishment of filiation and the placement of destitute children into new families. It first reports findings from an expert survey that investigates four key areas of state involvement--the legal framework, the role of courts and ministries, guardianship regulations, and financial support and services for destitute children--across fourteen jurisdictions, twelve Muslim-majority countries, and two Muslim-minority countries. Overall, the placement of children into new families remains a sensitive issue because it is linked to different communities “claiming” the child. In principle, the states surveyed do not allow the creation of new families across religious lines. Using Jordan as a case study, the article then focuses on the implications of one particular survey finding: non-Muslims in Muslim-majority countries sometimes cannot have children placed into their homes. This finding is based on qualitative data collected in Jordan on adoption (tabannī) in the Greek Catholic community. The article argues that in settings of legal pluralism, state involvement affects different religious communities in different ways. In Jordan, due to structural factors, the state shapes Islamic family law differently than the family laws applied by Christian communities. This leads to the unequal development of different bodies of religious law and thereby to the unequal treatment of Muslim and Christian citizens.

Carl H. Esbeck, An Extended Essay on Church Autonomy, 22 Federalist Soc' Rev. 244 (2021)

The doctrine of church autonomy¹ is distinct from the two more familiar lines of cases decided under the Establishment Clause and Free Exercise Clause, respectively. Routine Establishment Clause disputes such as those over religious preferences,² government funding for religious entities,³ and government- *245 sponsored religious symbols⁴ are now resolved by a series of rules (not standards) followed over the last two decades by the High Court.⁵ Stand-alone Free Exercise Clause cases are resolved by first sorting those complaints charging that the government has intentionally imposed a burden on a claimant's religious beliefs or practices (they get Lukumi-like⁶ struct scrutiny) from complaints over laws that impose a religious burden only as a consequence of neutral and generally applicable legislation (they get a pass under Employment Division v. Smith,⁷ as narrowed by Fulton v. City of Philadelphia⁸). The threshold task of sorting the Lukumi sheep from the Smith goats often presages whether the claim prevails on the merits. Church autonomy has its own exclusive line of precedent running from Watson v. Jones,⁹ through Kedroff v. St. Nicholas Cathedral¹⁰--where the doctrine was first recognized as having First Amendment stature--and culminating with renewed vigor for religious institutional autonomy in the U.S. Supreme Court's unanimous decision of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC.¹¹

Nathaniel M. Fouch, Erik Money, Thomas C. Berg, Credentials Not Required: Why an Employee's Significant Religious Functions Should Suffice to Trigger the Ministerial Exception, 20 Federalist Soc' Rev. 182 (2020)

An employee's significant religious functions should be sufficient to make the employee a minister for the purposes of the ministerial exception. In close cases, courts should also look to employees' title and training, but the absence of such credentials should never trump the presence of significant religious function. This function-focused inquiry avoids the evil of state-sponsored ministerial credentialism, a practice that helped motivate the adoption of the First Amendment. Focusing on function also furthers the fundamental Religion Clause principles of equality among denominations and judicial non-involvement in the ecclesiastical decision-making of religious organizations. The Supreme Court should call a halt to the recent trend of credentialism in some lower courts, which threatens to undermine the purposes of the ministerial exception.

Jonathan Fitzmaurice, Opioid Litigation: Welcome to the Nuisance Jungle, 19 Ave Maria L. Rev. 210 (2021)

The application of public nuisance in mass product litigation has largely escaped judicial scrutiny because of its common result--settlement.²²⁷ Insofar as it has been judicially addressed, the majority of courts have been unwilling to expand the traditional boundaries of public nuisance law,²²⁸ leaving product liability law as the “paramount basis of liability” for harm caused by products.²²⁹ Although any action or inaction taken by the legislature may be far from perfect, product regulation requires a complex cost-benefit determination giving vast considerations to fundamental notions of public policy, fairness, and overall societal benefit.²³⁰ The Constitutional framework delegates these policy-making determinations to the legislature and its regulatory agencies, and the judiciary is unfit and ill-equipped for such complexity given the small portion of issues presented in litigation.²³¹

David F. Forte, We Are Free for A Reason, 22 Federalist Soc' Rev. 98 (2021)

This is a good and valuable book because it is exactly what it aims to be: practical advice in defending religious liberty from a scriptural Christian perspective. It often does not draw clear doctrinal lines or go very deep into theology, but theology is not the work of a lawyer who has real clients amid particular circumstances. The book understands, as a good lawyer and a good Christian would, that we are bound to advance the kingdom of God, but that the City of God cannot replace in our world the City of Man, and we should not indulge our pride by thinking we can bring it about. The book also calls us back to first principles in understanding the nature of religion and liberty--that the latter is in the God-endowed nature of man, and that former is how men and women embrace as best they can, the Transcendent Good.

Shaun de Freitas, Equality and Non-Discrimination: Catholic Roots, Current Challenges. Edited by Jane F. Adolphe, Robert L. Fastiggi, and Michael A. Vacca. Eugene: Pickwick Publications, 2019. Pp 214. $50.00 (Cloth); $30.00 (Digital); $28, 36 J.L. & Religion 159 (2021)

The eleven essays that make up Equality and Non-discrimination: Catholic Roots, Current Challenges address an array of topics directly or indirectly involving equality and nondiscrimination and stem from a broad range of expertise, including philosophers, theologians, and jurists. The contemporary relevance and accompanying concerns of equality and nondiscrimination relate especially to what is stated by co-editor Robert Fastiggi in the opening chapter: “The principles of equality and non-discrimination have become more complex in recent years because they are being extended to behaviors and lifestyles and not merely to persons” (8). This naturally introduces various interpretations arising from foundational beliefs (whether religious or nonreligious), which also overlap with matters of moral importance. Bearing this in mind, differing views on the meaning of equality and nondiscrimination are inescapable, and included here are views stemming from the religious also. Editors Jane Adolphe, Fastiggi, and Michael Vacca have gathered views implicating equality and nondiscrimination that are aligned more specifically (although not exclusively so) with Catholic teachings and thought.

Bruce P. Frohnen, Constitutional Crisis and America's Lost Natural Law Mind, 19 Ave Maria L. Rev. 1 (2021)

Why are Catholic hospitals now liable to suit by “transgender men” on whom they refuse, for religious reasons, to perform hysterectomies?¹ In part, no doubt, because courts misunderstand the nature and purpose of the Religion Clause in our First Amendment and, more generally, our Constitution and rule of law. More fundamentally, however, the current attack on religion in America stems from the loss of understanding of the nature of our constitutional order and its grounding in natural law. Our current legal crisis, often presented by lawyers as a matter of interpretation,² is rooted in metaphysical confusion and so cannot be resolved through interpretive reforms alone. As John Courtney Murray, S.J., pointed out in the middle of the last century, American constitutionalism is inextricably bound up with natural law understandings of the person and the social order.³ These understandings, long maintained through a fruitful relationship between religious and secular authority, especially in the educational sphere, have been massively undermined by judicial rulings.⁴ Committed to promoting an ideology of individual autonomy supported and enforced by centralized political power, judges have enforced a policy of strict separation between “church and state” that, over time, has effectively changed general understandings of the nature of the person and society. Far advanced, the deconstruction of traditional American presuppositions has made it increasingly difficult for either judges or laymen to recognize, let alone act in *2 accordance with, the reality on which American constitutionalism relies. As Orestes Brownson argued, the written Constitution is made real by an unwritten constitution of customs, beliefs, and practices, in essence the culture of the people as they live out their understanding of the person and the requirements for a good life.⁵ Americans have lost the common culture of our constitutional order, leaving our ability to make sense of the Constitution's (and other laws') primary goals and presuppositions, highly if not fatally, limited.

Rachel Amber Frost, Esq., Pews, Sidelines, and Locker Rooms: Moment of Silence Policy Is the "Hail Mary" to Achieve Constitutionality of Prayer in Public-School Athletic Contests, 21 Rutgers J. L. & Religion 1 (2020)

A properly implemented moment of silence policy in public schools may be the ultimate “Hail Mary” that is needed to achieve constitutionality of prayer in the modern-day pews that are sidelines and locker rooms.

Kellen R. Funk, Propertied Rites: Beyond Belief, Beyond Conscience: The Radical Significance of the Free Exercise of Religion. by Jack N. Rakove. Oxford: Oxford University Press, 2020. Pp. 240. $22.95 (Hardcover). Church State Corporati, 36 Const. Comment. 175 (2021)

A pious fan once asked the humorist Mark Twain if he believed in infant baptism. (To preview themes to come: Even the most liberal individual likes to know her faith is shared in community.) “Believe in it?” he exclaimed in response, “Hell, I've seen it done!”⁴

Although it may be only mildly humorous (though I confess laughing every time I hear it), there is a profound turn in the playful substitution of physical facts for theological truths in the ambiguity of “belief.” At first, the inversion looks like a dodge. A difficult and highly fraught question of Christian theology, one over which communities have been torn and blood has been shed,⁵ turns at once into a seemingly simple question of observation, like whether one can believe in the unicorn or the platypus. The *176 implicit threat behind the question--that an errant answer will sunder fellowship in the here and now, and forfeit life in the world to come--is apparently disarmed, violence exchanged for laugher, swords beaten into ploughshares.

Richard W. Garnett, Persons and the Point of the Law, 58 J. Cath. Legal Stud. 65 (2019)

Unlike Justice Breyer's assessment of Hall, Roe is not a well-reasoned decision and it has caused “serious practical problems ... since [the Court] decided it.”³⁴² It “def[ies] practical workability,” and should be overruled.³⁴³ The unworkability of Roe is one of many reasons that Roe is unsettled, and persistent adherence to unsettled decisions undermines, rather than promotes, the goals of stare decisis--predictability, consistency, stability, and reliance. As Justice Thomas has said, the Court created the abortion mess, and “it is [the Court's] job to fix it.”³⁴⁴ The Court has tried and failed to fix the problems of Roe by modifying the underlying legal rule. It is time for the Court to release its grip on the abortion issue by overruling Roe and returning the issue to the states.

Scott W. Gaylord, Neutrality Without A Tape Measure: Accommodating Religion After American Legion, 19 Ave Maria L. Rev. 25 (2021)

Neutrality also plays an important role in Establishment Clause cases, but the Court seems in the process of altering its understanding of neutrality in that context as well. In the wake of American Legion, a majority of the Court appears ready to embrace the accommodationist view of neutrality. While not adopting a specific test for religious symbols, practices, and monuments that are “newer” (i.e., not longstanding), a majority indicated in American Legion that neutrality under the Establishment Clause involves only neutrality between and among religions, not between religion and nonreligion. Accordingly, courts need not consider the spatial relationship between the religious and secular components of a display or symbol. The Lemon and endorsement tests have been retired (at least until a different majority holds sway), and the history and tradition approach from Marsh and Town of Greece likely has emerged as the dominant Establishment Clause test. And if Justice Gorsuch is correct, courts need not consult a temporal tape measure either. Instead, courts must ensure only that the government acts neutrally between and among religions, and they should do this by looking at the history and traditions of religion in the public sphere.³⁶⁰

M. Christian Green, Paths and Pedagogies in Law and Ethics: On Cathleen Kaveny, Ethics at the Edges of Law: Christian Moralists and American Legal Thought, 34 J.L. & Religion 433 (2019)

Which comes first: law or religion? Students entering the law and religion program at Emory are given a choice of whether to start their studies in law or theology. Does it make a difference whether and why people enter through either the law or the religion door? Do those who begin in law turn to religion for something beyond the law? How do minds trained to “think like a lawyer” respond to non-legal concepts, such as grace, sin, atonement, redemption, and mercy? Do those who enter through religion become disheartened when they turn from divine narratives to the dramas, discord, and generally adversarial realm of the courtroom? Does their study of law give them theoretical or practical grounding for pursuing work in religion, whether in ministry, social service, or some other capacity? How do the two groups end up relating law and religion in their lives? How does the law or religion question end up being reconciled in the diverse vocations and pedagogies of the law and religion field?

Andrew Hocott, The Partisan Samaritan: The Communications Decency Act and the Modern Internet, 19 Ave Maria L. Rev. 238 (2021)

With the rise of massive ICSs that control the places where speech actually occurs, the public has returned to a fear of despotism by private individuals.²³⁹ With its language in Packingham, the Court reaffirmed the fundamental right to speak on the Internet but spoke so broadly as to invite analogy to the principles espoused by Marsh and Logan Valley.²⁴⁰ The Court invited, intentionally or otherwise, the return of the corporate town analogy,²⁴¹ and the public's response provides an opportunity to analyze how it expresses their fear of despotism. Even recognizing the value of such an interest, the Court should not, and would be unlikely to, return to the principles of Marsh. Doing so would be to overturn not only the state actor doctrine and blur the line between private actors and the government but would fail to respect the legislative character of the issue. The public does have a means of redressing private abuses of its authority: through its representatives in the legislature. That is where the people have the capacity to address ICS responsibility and protect themselves.

Theresa Holt, A Question of Coercion: When Does Legislator-Led Prayer Cross the Constitutional Line?, 18 Ave Maria L. Rev. 168 (2020)

Although a prayer policy that restricts prayer-givers to the members of the legislative body may not be the “best practice,” unless the prayer policy coerces dissenting legislators and members of the public into participating in religious exercises, it should be upheld under the Establishment Clause according to the precedents set in Marsh v. Chambers and Town of Greece v. Galloway. By applying a test that evaluates whether the particular practice is consistent with the historical tradition of legislative prayer and whether the opportunity has been exploited to coerce dissenters, courts allow a tolerable acknowledgement of beliefs and values held by its citizens and individual lawmakers while preventing the evils the Establishment Clause protects against: government entanglement with religion and de facto establishment of a state church.

Paul Horwitz, A Few Grains of Incense: Law, Religion, and Politics from the Perspective of the "Christian" and "Pagan" Dispensations, 58 J. Cath. Legal Stud. 125 (2019)

In this Essay, I expand on a key aspect of Pagans and Christians in the City, which features most prominently in the chapter on the “[l]ogic” of pagan and Christian persecution⁴ and is applied in subsequent chapters on modern America. The question Smith focuses on--with an eye fixed as firmly on the present as on the past--is the possibility of compromise under “Christian” or “pagan” regimes during the Roman Empire. Smith argues that from within each perspective, “peaceful and mutually respectful coexistence should have been possible, if only the other side would be less unreasonable.”⁵

Thomas D. Howes, Religion As A Basic Human Good, 66 Am. J. Juris. 239 (2021)

or the sake of defending the political-ethical legitimacy of religious exemptions, this article analyzes what contemporary natural law theorists call the good of religion--harmony with the transcendent source of existence and meaning. This good serves as a principle in practical judgments, not as a premise in a deductive argument, but as an end of action. Practical familiarity and explicit understanding of this good can differ among individuals, and variations of such familiarity and understanding lead to differing practical judgments concerning what constitute reasonable choices in its pursuit. This in turn affects judgments of fairness concerning burdens on that same pursuit. It is optimal for judgments about religious exemptions to presuppose a more paradigmatic understanding of this good so that one can better assess what is really at stake in the minds of religious believers when their religious liberty is burdened. In making a case for a more paradigmatic understanding of religion, this article draws attention to existential data from which practical insight into the good of religion arises.

Steven Andrew Jacobs, The Future of Roe v. Wade: Do Abortion Rights End when a Human Life Begins?, 87 Tenn. L. Rev. 769 (2020)

While legal scholars and Supreme Court Justices on both sides of the national abortion controversy argue that Roe v. Wade was incorrectly decided, this Article accepts the Court's decision as a provisional holding that was based on the relevant societal, scientific, and legal records available to the Court in 1973. However, the stare decisis analysis outlined by the Court in Planned Parenthood v. Casey dictates that precedent can be overturned when a change in relevant facts robs a ruling of its original justification. If the Court agrees to hear a challenge to Roe, it will likely assess whether the relevant factual records relied upon by the Court in Roe are still responsive to present realities.

Tabitha M. Kempf, Administrative Apparition: Resurrecting the Modern Administrative State's Legitimacy Crisis with Agency Law Analysis, 71 Cath. U. L. Rev. 277 (2022)

There is an enduring discord among academic and political pundits over the state of modern American government, with much focus on the ever-expanding host of federal agencies and their increasing regulatory, investigative, enforcement, and adjudicatory authority. The growing conglomerate of federal agencies, often unfavorably regarded as the "administrative state," has invited decades of debate over the validity and proper scope of this current mode of government. Advocates for and against the administrative state are numerous, with most making traditional constitutional arguments to justify or delegitimize the current establishment. Others make philosophical, moral, or practical arguments in support or opposition. Though some contest it, the administrative state faces a crisis of legitimacy. This article addresses what is described here as the "Approval Defense," an argument that justifies the administrative state on grounds that, even if unconstitutional, all three branches of federal government and the public have subsequently approved of our modern form of government, so it is legitimate on that basis. In essence, the Approval Defense's claim of legitimacy is one of ratification. Using similar agency law principles, this article seeks to demonstrate the flaws with a justification based on ratification and show that until there has been an adequate explanation of its lawful basis, the administrative state's legitimacy crisis will simply not go to its grave.

Antony Barone Kolenc, "23 and Plea": Limiting Police Use of Genealogy Sites After Carpenter v. United States, 122 W. Va. L. Rev. 53 (2019)

The police pulled up to the Oregon nursing home with a search warrant signed by a county judge. Their suspect: a bed-ridden, 73-year-old man who also might be the elusive Golden State Killer who murdered 13 women and raped dozens more in the 1970s and 1980s. Without getting a warrant, law enforcement officers had narrowed their search for the killer using a public genealogy website with DNA² test results uploaded by hundreds of thousands of people. Their final clue had been that this suspect--along with the Killer--had a genetic mutation *55 possessed by less than 3% of Caucasians in the genealogy database. Without asking the man's permission as he lay in bed, the police swabbed a DNA sample from his mouth and sent it for lab testing, comparing it to the DNA of the Golden State Killer found at a crime scene decades earlier. The result: no match; the man was innocent. The police tested a second suspect--also no match. Finally, on the third try, they got their man: Joseph De Angelo, an ex-cop now facing rape and murder charges and whose DNA matched the real killer.

This story of mistaken identity, breath-taking DNA testing technology, and hard-boiled police work has become the first chapter in a series of increasingly common criminal investigations that rely on genetic samples tested by genealogy companies such as 23andMe and Ancestry, two of the most popular services, and loaded on public websites such as Ysearch or GEDmatch, the site that led police to the Golden State Killer.³ Law enforcement officers all over the United States are now using similar tactics in hundreds of cases to catch alleged killers and have logged their first jury verdict conviction in one such case in 2019.⁴ While some commercial genealogy sites, like Ancestry and 23andMe, have a policy that requires a warrant from the police before disclosing genetic data, sites like GEDmatch have less stringent policies.

But some privacy advocates believe warrantless searches of DNA databases could violate the Fourth Amendment and other privacy interests and lead to police abuses. They suggest the U.S. Supreme Court's 2018 decision, Carpenter v. United States,⁵ provides a constitutional basis for ending these law enforcement tactics.⁶

*56 Part II of this Article briefly examines the Carpenter decision and the privacy interests implicated by DNA testing and private genealogy websites. Part III discusses whether, after Carpenter, police searches of genealogy websites trigger Fourth Amendment protection. Part IV explores the third-party doctrine, assessing its post-Carpenter viability in the DNA context. Concluding the Fourth Amendment provides limited protection, Part V seeks alternative solutions to the noted privacy concerns.

Antony Barone Kolenc, A Practitioner's Guide to Police Use of Genealogy Sites and the Fourth Amendment, Crim. Just., Summer 2020, at 19

Law enforcement agents in California caught the alleged Golden State Killer-- the serial murderer and rapist who eluded capture for over 40 years after terrifying Californians in the 1970s and 80s. Despite intense public scrutiny, traditional investigation techniques hadn't broken that cold case for decades. But in 2018, the police ingeniously found a suspect by creating a profile on GEDmatch, a free, publicly available genealogy website. Officers uploaded to the site DNA results obtained from the killer's crime scenes, finding a distant relative to the killer and developing a family tree. After mistakenly homing in on two other suspects, police eventually obtained a sample of discarded DNA from a third suspect (Joseph De Angelo), an ex-cop whose DNA matched that of the killer. See Antony Barone Kolenc, ‘‘23 and Plea”: Limiting Police Use of Genealogy Sites After Carpenter v. United States, 122 W. Va. L. Rev. 53, 54-55, 96 (2019).

Since the highly publicized breakthrough with the Golden State Killer, law enforcement agents across the nation--with the help of private companies set up to assist with these investigations--have mimicked this technique hundreds of times, reheating cold cases and tracking down suspects. In June 2019 (even though De Angelo still hadn't had a preliminary hearing in California), a jury in Everett, Washington, delivered the first conviction in one of these genealogy cases, finding William Talbott II guilty of the double-murder of a young Canadian couple in 1987. As with De Angelo, police solved that cold case by uploading DNA evidence from the killer's semen to GEDmatch, uncovering two cousins and developing a family tree that led them to Talbott. See Caleb Hutton, Jurors Share Why They Found Talbott Guilty of Double Murder, HeraldNet.com (July 7, 2019), https://bit.ly/2HdFAQ2.

The Fourth Amendment guarantees the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” So how does that guarantee apply to the police using private genealogy websites to go on warrantless expeditions without probable cause to fish for the families of criminal suspects? *20 Some practitioners believe the reasoning of the U.S. Supreme Court's decision in Carpenter v. United States, 138 S. Ct. 2206 (2018), will eventually force police to comply with the Fourth Amendment before going on any well-intentioned genealogy hunts. This article will discuss the potential impact of the Carpenter case on this burgeoning area of criminal law and focus on what practitioners need to understand police genealogy investigatory techniques in light of the Fourth Amendment.

Antony Kolenc, Religious Liberty in the Age of COVID, UNT Dallas College of Law, (2021)

In the age of COVID-19, two pressing questions arise: What limits does the U.S. Constitution place on the government suppression of religious liberty during a global health emergency, and what can believers do to secure their right to religious worship?

Andras Koltay, The Protection of Freedom of Expression from Social Media Platforms, 73 Mercer L. Rev. 523 (2022)

The impact of social media platforms on freedom of speech is extremely wide-ranging. Social and legacy media are similar in terms of editorial activity, but there are also significant differences between them. Accordingly, media regulation cannot be applied to platforms without any change. The approach used in Europe, according to which, in certain cases, the lawfulness of content must be decided by platforms, raises concerns in terms of freedom of speech. At the same time, it is also clear that the judicial system or a public authority would not be able to handle the workload associated with the operation of the platforms, so the notice-and-takedown system remains the basis for the liability of the platforms as a kind of emergency measure.

David B. Kopel and George A. Mocsary, Errors of Omission: Words Missing From the Ninth Circuit's Young V. Hawaii, U. Ill. Rev. Online 172 (2021)

The Young v. Hawaii majority claims that total prohibition of the right to bear a handgun in public is consistent with "overwhelming" American legal history. The claim is refuted by the very sources on which the majority relies, once their full context is revealed.

Douglas Laycock & Thomas C. Berg, Protecting Free Exercise Under Smith and After Smith, Cato Sup. Ct. Rev., 2020-2021, at 33

Smith's protective rule can do much to shield free exercise of religion, but its unprotective rule still weakens that shield. In answer to Justice Barrett, we think that the logic and purposes of free exercise can generate a protective but workable doctrine for challenges to generally applicable laws.

Paul Benjamin Linton, Esq., The Pro-Life Movement at (Almost) Fifty: Where Do We Go from Here?, 18 Ave Maria L. Rev. 15 (2020)

Almost fifty years after Roe was decided, where does the pro-life movement go from here? The answer to that question, in turn, depends on the answers to five other questions. First, is the Supreme Court, as presently constituted, likely to reconsider Roe? Second, what is the “lay of the land” on pending direct challenges to Roe? Third, are direct challenges to Roe necessary to obtain an overruling decision? Fourth, what alternatives might be considered to direct challenges to Roe? Fifth, how does the interpretation of state constitutions affect the legal status of abortion?

Luca Martino Levi, Early Traces of Karl Polanyi's "Discovery of Society": A Study of Sixteenth-Century Spirituality and Charity Through Caravaggio's Paintings, 31 Yale J.L. & Human. 123 (2020)

Such a reliance on individual acts of solidarity in the context of a withdrawing State strikes me as evocative of Caravaggio's approach to need, as expressed in the Seven Works of Mercy. Caravaggio's art is beautiful and, in his time, it even delivered a socially-progressive message. But for us--women and men of the twenty-first century--the resemblance between our society and a four-centuries-old painting should be a matter of concern.

Paul J. Larkin, Wholesale-Level Clemency: Reconciling the Pardon and Take Care Clauses, 19 U. St. Thomas L.J. 534 (2023)

The Article II Pardon Clause authorizes the President to grant clemency with few restrictions on who may receive relief. Throughout our history, Presidents have believed that they may grant amnesties to broadly defined categories of offenders, and the Supreme Court has blessed that practice. A slew of contemporary scholarship, however, has re-examined the meaning of the Article II Take Care Clause, and many scholars have read it to function, not principally as a grant of authority, but as the imposition of a duty on the President to enforce the law. The question arises whether a category-wide grant of clemency would violate that obligation. The answer is, “No.” Neither the text of the Pardon Clause nor that of the *568 Take Care Clause imposes any such limitation, and the history of their adoption does not suggest that the latter limits the former in a way that forbids large-scale amnesties or commutations. Whatever individual Presidents may think of the utility or desirability of wholesale-level clemency, the law does not forbid them from granting it.

Stephen L. Mikochik, Pope Francis and Civil Unions, 20 Ave Maria L. Rev. 96 (2022)

Admittedly, St. Thomas concludes the Natural Law and Civil Law are not co-extensive, so that conduct which the former considered vicious the latter was not necessarily required to prohibit.³⁶ Civil law, however, cannot sanction what the Eternal Law (and thus the Natural Law) condemned since it would be unjust and thus no longer a law.³⁷ If “sanctioning” vice is the same as formally cooperating with it, it would appear again that laws recognizing civil unions simply are not legitimate.

Of course, an offhand statement during an interview does not constitute official Church teaching, even if made by the Pope himself and especially if not intended to be made public. Yet, the Pontiff's words are an invitation to rethink the Church's position on civil unions. Even if the same conclusion is ultimately reached, the process enables us better to understand the grounds for that teaching and better to distinguish just from unjust discrimination. In words Pope Francis did assent to have published, “[t]he Christian community and its Pastors are called to welcome with respect and sensitivity persons with homosexual inclinations, and will know how to find the most appropriate ways, consistent with Church teaching, to proclaim to them the Gospel in its fullness.”³⁸

Veryl Victoria Miles, Looking Beyond the Profit and into the Light: Consumer Financial Protection and the Common Good, 35 Notre Dame J.L. Ethics & Pub. Pol'y 93 (2021)

Looking at secular laws through faith-based perspectives on justice can be worthwhile when assessing whether we are a just and fair society for all citizens. That is, do our laws and institutions reflect a concern for the common good as defined by the notions of justice that have a faith-based foundation? Catholic Social Teaching, with its concern for the welfare of individuals and their families, provides a rich body of doctrine addressing a wide spectrum of social and economic concerns that touch upon every aspect of the daily needs of individuals and families in our communities. This doctrine offers different and special perspectives of what we as a society, framed by secular laws and institutions, might consider when faced with a critical need to address unfair and abusive activities or practices that impact all citizens, with particular concern for the most vulnerable members of society.

Melissa Moschella, Symposium: Liberalism, Christianity & Constitutionalism: Natural Law, Parental Rights, and the Defense of "Liberal" Limits on Government: An Analysis of the Mortara Case and its Contemporary Parallels, 98 Notre Dame L. Rev. 1559 (2023)

This Article explores parallels between integralists' defense of the Mortara case (in which Pius IX removed a child from his parents' care in order to provide him with a Catholic education) and contemporary progressive arguments for overriding the authority of parents who do not want their gender-dysphoric children to undergo social or medical gender transition. In Part I, I offer an overview of the natural law case for limited government, then in Part II I turn more specifically to a natural law defense of parental rights as an essential aspect of limited government. In the following Part, I return to the Mortara case, analyzing it in light of the principles presented in the previous sections to show why the Pope's actions (however well-intentioned) were contrary to natural law. Finally, in Part IV I argue that the Mortara case has troubling parallels in the attempts of contemporary progressives (also presumably well-intentioned) to allow gender-dysphoric children to undergo social transition and begin hormone therapies without parental knowledge or consent, and to justify the removal of such children from the homes of loving parents who persist in opposing such interventions. I thus attempt to show, through these concrete examples related to parental rights, how natural law principles can save liberal political institutions not only from their integralist critics, but also from liberalism's own contemporary progressive excesses.

Jeffrie G. Murphy, Punishment, Forgiveness, and Mercy, 35 J.L. & Religion 5 (2020)

Forgiveness and mercy are often thought of as acts that we perform or gifts that we bestow. In this essay the author focuses on character and explores the implications for punishment if one focuses on having a character that is merciful and forgiving in disposition. He argues that the tension that is often thought to exist between justice, on the one hand, and forgiveness and mercy, on the other, is lessened by focusing on the virtue of having a forgiving and merciful character.

Richard S. Myers, American Legion v. American Humanist Association and the Future of the Establishment Clause, 19 Ave Maria L. Rev. 91 (2021)

The Court's opinion in American Legion reached a result that did not surprise many observers.¹⁰⁹ The Court concluded that the Bladensburg Cross did not violate the Establishment Clause. The Court's ruling was modest. The Court made it clear that Establishment Clause challenges to longstanding displays containing religious symbols will likely fail. Unfortunately, the Court did not settle the continuing debate about the proper approach or test to use in Establishment Clause cases. The Court did, though, continue to move Establishment Clause doctrine in a positive direction. The Court continues to reject the privatization thesis and is moving closer to adopting a coercion test.

Richard S. Myers, Lower Court "Dissent" from Roe and Casey, 18 Ave Maria L. Rev. 1 (2020)

There has been much recent speculation¹ about the fate of Roe v. Wade² and Planned Parenthood v. Casey.³ Supporters of Roe and Casey contend that the decisions are “settled law” that the Supreme Court should not overrule.⁴ But, in reality, Roe and Casey are not settled, as the frequent and varied opposition to these decisions reflects. One intriguing source of opposition has been from lower court judges. While still following these precedents, an increasing number of these judges have expressed disagreement with the Court's decisions.⁵ This paper examines these lower court opinions, which may serve to make the overruling of Roe and Casey more likely.

Richard S. Myers, The Significance of Trinity Lutheran, 17 Ave Maria L. Rev. 1 (2019)

The long-awaited¹ decision in Trinity Lutheran Church of Columbia, Inc. v. Comer² is a significant development. The Court (by a 7-2 margin) held that it violated the free exercise clause for the state of Missouri to discriminate against a religious entity in the administration of a public grant program. The decision may well have important ramifications in a number of areas, including school choice. The decision, though, was written in narrow terms and so many issues remain unsettled. This paper comments on the significance of the Trinity Lutheran decision.

Anthony Nania & Matt Dean, Introduction, 58 J. Cath. Legal Stud. 1 (2019)

What does it mean to be a Catholic law school? Where did the idea of Catholic legal education begin, where does it currently stand, and where is it heading? Professors John M. Breen and Lee J. Strang have worked to answer these questions, among many others, in their forthcoming book A Light Unseen: A History of Catholic Legal Education in the United States.¹ In their book, the professors argue persuasively that Catholicism is “a set of ideas” that has informed, sculpted, and birthed numerous social structures, institutions, and teachings.² If this is so--if Catholicism is a wide-ranging, far-reaching system of ideas that touches upon nearly all aspects of humanity³--it makes sense to imagine that a law school claiming to be Catholic would keep and follow these ideas, the Catholic intellectual tradition, at the core of its existence.

Jeffrey A. Pojanowski, Teaching Jurisprudence in A Catholic Law School, 58 J. Cath. Legal Stud. 75 (2019)

Jurisprudence plays an important role in John Breen and Lee Strang's history of Catholic legal education and in their prescription for its future. Legal philosophy in general, and the natural law tradition in particular, provide a central justification for the existence of distinctive Catholic law schools. They are right to argue so. As part of the broader Catholic intellectual tradition, which emphasizes the unity of knowledge and the eternal significance of mundane practice, natural law philosophy rejects mere vocationalism. It can provide the animating form and direction of a legal education that is more than one damn thing after another in preparation for the bar.

Jeffrey A. Pojanowski, Book Review: Recovering Classical Legal Constitutionalism: A Critique of Professor Vermeule's New Theory Common Good Constitutionalism: Recovering  the Classical Legal Tradition. By Adrian Vermeule. Polity Press. 2022., 98 Notre Dame L. Rev. 403 (2022)

Having considered both areas of agreement and disagreement with Vermeule, it is fitting to consider where to go from here. Vermeule addresses this question in Common Good Constitutionalism by forcing a choice among three alternatives: "positivist originalism"; "progressive living constitutionalism"; and "common good constitutionalism." Having exposed the limits of this false trilemma, we believe we have also revealed the staying power of Enduring Originalism. That said, we do not wish to repeat in reverse one of the least attractive aspects of Vermeule's constitutional dialectic. That is simply to privilege one essential element of legality above all others and assert "the game is up" once one's interlocutor acknowledges the essential role of that element. 285Rather, we encourage jurists to aim to understand constitutional law (and all human positive law, for that matter) in the light of all four of law's four causes. 286

Patrick E. Reidy, C.S.C., Condemning Worship: Religious Liberty Protections and Church Takings, 130 Yale L. J. 226 (2020)

Recent eminent-domain actions against houses of worship ("church takings") along the Mexico-U.S. border have inspired new questions about religious liberty and land use. This Note explores how courts interpret constitutional and statutory religious liberty protections when the government seeks to condemn property owned by faith communities, revealing how courts discriminate between types of religious property. While protecting those structures in which faith communities gather for worship, courts allow condemning authorities to take other properties integral to communities' religious missions. Courts thus transform houses of worship into paradigmatic property for the free exercise of religion.

Nicholas Rollo, "Blessing-In-Disguise": A Hopeful Ending To Uncertainty For Religious Institutions' Rights Under COVID-19 Governments Acts, 22 Rutgers J. Law & Relig. 394 (2021)

In considering whether to accept a petition by a religious institution for the alleged violation of the RLUIPA by a government through a COVID-19 executive order or requirement, the Court will place great emphasis on the specific facts alleged and assess all of the factors. As the Court is currently configured, there is a greater likelihood than before that it would find that the government imposed a substantial burden upon the religious institution if the right set of facts accompanies the petition. A decision to accept a petition by the Court does not mean that the Court would rule in favor of the religious institution on its RLUIPA claim. Regardless of the decision on the merits by the Court, however, if the Court accepts such a petition, religious institutions will receive clarity as to the lawful or unlawful impacts of government acts on their operations. This is important to religious institutions as COVID-19 and its variants continue to exist and affect regular activities in this country

Vincent Rougeau, Reflections on A Light Unseen, 58 J. Cath. Legal Stud. 89 (2019)

I am very pleased to have an opportunity to offer some reflections on the manuscript for A Light Unseen by Professors John Breen and Lee Strang. It is an extraordinarily comprehensive look at the history of Catholic law schools in the United States. That aspect of the work alone makes it an important contribution to the scholarship on Catholic higher education in this country, and I am sure it will become an essential resource for scholars and educators across a wide range of fields. Nevertheless, A Light Unseen is much more than a history. It also raises a critical question: What does it mean to be a Catholic law school? It is a query that has generated much controversy in recent decades, particularly in the United States, and it has been answered in different ways across time and place. Professors Breen and Strang determine that past attempts to establish meaningful Catholic identity in American law schools have been wanting, and they propose a thought-provoking solution for the future.

Nicholas Shrubsole, Ekklesia: Three Inquiries in Church and State. by Paul Christopher Johnson, Pamela E. Klassen, and Winnifred Fallers Sullivan. Chicago: University of Chicago Press, 2018. Pp. 262. $27.50 (Paper). Isbn: 9780226545585, 35 J.L. & Religion 345 (2020)

The word ekklesia, at different times, has referred to both the polis of the Greek city state and the early Christian church. As a construct denoting an exclusive assembly of peoples convened under a transcendent sovereignty, reified by ritual, and legitimated through law, Ekklesia is a fitting title for this book on the important relationship between church and state. The title challenges readers to conceive of church and state not as a binary of competitive or complementary powers in a zero-sum game, but as analytically distinct, historically and conceptual entangled constructs that are both interlocking with and translating from each other. It is in those fuzzy spaces of interlocking and translating in which this book is situated. Paul Christopher Johnson, Pamela Klassen, and Winnifred Fallers Sullivan introduce this conceptual framework as “churchstateness,” which is “composed of the interpenetrating and mutually constitutive forces of religion, law, and politics” (3).

Lee J. Strang, An Evaluation of Evidence for Constitutional Construction from "The Decision of 1789" Debate in the First Congress, 46 Ohio N.U. L. Rev. 437 (2020)

In this brief Essay, I made three moves. First, I briefly described constitutional construction. Second, I summarized the debate over the President's power to remove executive officers. Third, I summarized the evidence of the House debate on this issue. From this debate, I drew two *457 tentative conclusions: (1) the debate participants believed that, at first blush, the Constitution's meaning was not patent; and (2), the debate participants believed that the Constitution provided determinate answers following a series of arguments drawing-out the Constitution's meaning.

Lee J. Strang, Originalism Is A Successful Theory (in Part) Because of Its Complexity: A Response to Professor Telman: Originalism's Promise: A Natural Law Account of the American Constitution. by Lee J. Strang. New York, Ny: Cambridge, 35 Const. Comment. 141 (2020)

Professor Telman's review of Originalism's Promise: A Natural Law Account of the American Constitution¹ is thoughtful--it identifies positive contributions made by Originalism's Promise and offers pointed criticisms where Professor Telman believes its arguments fall short. Professor Telman's review is also an excellent example of the genre because it goes further and argues that Originalism's Promise is itself a manifestation of originalism's dire predicament, in Professor Telman's view, its “crisis.”² Professor Telman's review continues his scholarly engagement with originalism,³ and originalism is the better for it.

Kimberly D. Swanson, Amended Rule 37(e): Problem Solver or Problem Maker?, 17 Ave Maria L. Rev. 81 (2019)

Sadly, the Rule's goal of providing clear guidance to the courts in spoliation matters has only made the courts' job more difficult. In actuality, a less restrictive rule that permits the courts to exercise their discretion and inherent powers would provide the flexibility needed to adjust to this increasingly complicated area of law. Only then will the goal of a “just, speedy, and inexpensive determination of every action and proceeding” ever be achieved.¹⁶⁹

Michael A. Taylor, S.T.D., Abortion and Public Policy: Review of U.S. Catholic Bishops' Teaching and the Future, 37 Issues L. & Med. 129 (2022)

The U.S. Roman Catholic bishops have been earnest participants in the contemporary public policy debate on abortion. This article reviews the bishops' main policy documents in which the Church's teaching on abortion is applied, first, within the context of the debate on abortion policy that was underway in the states before Roe v. Wade, and, second, within the grave and challenging situation thereafter when a right to abortion was made the law of the land. Whether discussing court cases, statutory law, human life bills, or various proposals to amend the Constitution, the bishops raised up a broad vision *130 of full protection in law for all human beings, born and unborn, and promoted a comprehensive program of education, pastoral care, public policy, and prayer. Building off this review the article concludes with some initial reflections on the Dobbs world in which the Court has returned the abortion issue to the people and their elected representatives.

Christopher Tollefsen, Acknowledging the Body: The Challenge for Public Bioethics, 66 Am. J. Juris. 163 (2021)

What It Means to be Human: The Case for the Body in Public Bioethics, Cambridge, MA: Harvard University Press, 2020

At the outset of his illuminating and challenging book What It Means to be Human: The Case for the Body in Public Bioethics, O. Carter Snead identifies the nature of “public bioethics:” it is the domain of ethics concerned with “the governance of science, medicine, and biotechnology in the name of ethical goods.”¹ Put slightly differently a page later, public bioethics seeks the “normative foundation for law and policy” in science, medicine, and biotechnology. Snead is especially concerned here with what he calls areas of “vital conflict,” namely abortion, assisted reproductive technology, and end of life care. How is the law to be brought to bear on the dilemmas that emerge at the intersection of the beginning and ending of life, modern technology, and human relationships, aspirations, and desires?

Timothy J. Tracey, Deal, No Deal: Bostock, Our Lady of Guadalupe, and the Fate of Religious Hiring Rights at the U.S. Supreme Court, 19 Ave Maria L. Rev. 105 (2021)

This past term, the Court stepped in and finally extended workplace nondiscrimination protections to LGBTQ Americans. Such protections were long overdue. No one should be prevented from making a living simply because of their sexual orientation or preferred gender identity. But the Court dismissed the implications of its decision for religious employers far too easily. Its broadening of the ministerial exception gives religious employers a bit more breathing room to continue hiring and firing consistent with their religious beliefs. However, it does not offset their now increased exposure to liability for employment discrimination claims brought under Title VII. The vast increase in potential liability without a concomitant expansion of religious liberty safeguards belies the claim that the Court is orchestrating a settlement of the longstanding clash between LGBTQ rights and religious liberty. The Justices' track records in religious freedom cases and the uncertain state of religious liberty law reinforce just how dubious the claim of a compromise really is. After this past Court term, religious employers have whiplash. But, better buckle up. The ride is still in motion.

William Michael Treanor, Reflections on A More "Catholic" Catholic Legal Education, 58 J. Cath. Legal Stud. 99 (2019)

When I was in college, I wrote a junior year thesis on Cardinal Newman and his conversion. In thinking about Newman, I was very struck by the title of his book, The Idea of a University.⁸ Not “The Idea of the University,” but “The Idea of a University.” Cardinal Newman acknowledged that there were other models--other visions of a university. And the same is true of Catholic *104 legal education. For the project going forward, my suggestion would be to devote a little bit more space for diverse models and paths to arrive to a similar goal. In their effort to describe “the” Catholic Law School, Professors Breen and Strang end up missing much of what is happening on the ground that does in fact advance the aims that they hold dear.

Adrian Vermeule, Echoes of the Ius Commune, 66 Am. J. Juris. 85 (2021)

Professor Nicholas (Nick) Barber's learned and intelligent book on The Principles of Constitutionalism is best understood as an exercise in Aristotelian naturalism and moral and constitutional realism, of a sort much more characteristic of the classical law than of modern positivism. In view of the book's implicitly classical approach, it would have benefited, at a number of key junctures, from drawing upon the rich and enduring tradition of the ius commune. Barber often speaks in the register of the classical law, perhaps without knowing it. Doing so more often, and more explicitly, would have improved an already impressive work.

Robert K. Vischer, How Distinctive Should Catholic Law Schools Be?, 58 J. Cath. Legal Stud. 117 (2019)

As the dean of a Catholic law school, I assuredly do not want to lose sight of the true, the good, and the beautiful. Our Catholic identity has to be meaningful, and Breen and Strang's exploration of this issue is enormously important to the extent that it brings these questions to the surface. But I want to be careful and gracious in my exploration of these questions, and I do not want to unduly limit the worthy manifestations of Catholic identity to those manifestations that are not exhibited by non-Catholic law schools. Not everything going on in legal education should be emulated by Catholic law schools, to be sure, but sometimes our commitment to core values will lead us to sound more like Metallica, less like Stryper. And I think that's okay.

Lael Weinberger, The Limits of Church Autonomy, 98 Notre Dame L. Rev. 1253 (2023)

This Article makes the case that, contrary to the critics, church autonomy is limited by an accountability principle, itself resting on the same bases that have been used to defend the most robust version of church autonomy. First, the social pluralist theory of sphere sovereignty does not just defend a place for religious institutions to exercise their own self-governance over religious matters; it also has an important place for the state to hold wrongdoers accountable for civil harms. Second, the deep history of church-state relations that has shaped the pro-church autonomy caselaw and scholarship alike also has rich resources to defend a principle of accountability.

John Witte, Jr., A Tribute to Frank S. Alexander, 35 J.L. & Religion 194 (2020)

“A time of troubles,” in Toynbee's words, is a period of crisis in law and values--a loss of faith in law and in the presence of principles underlying the law. Today is just such a time - the authority of law has disintegrated into lawless authority .... Cries for the protection of human life are heard in our hospitals, and in our prayers, but we are confused as to when life begins, or when it ends. Demands for stiffer, mandatory sentences [without pardons] for those convicted of crimes abound in Congressional bills, while in our synagogues and churches we wrestle with the meaning of acceptance, reconciliation, and forgiveness. Whispers of despair and anguish are heard on the lips of children caught in the midst of divorce fights and custody battles, and on the lips of parents as children are sentenced to institutional life, while we wonder about the values of the nuclear family. Religious structures and perspectives have lost the prophetic ability to critically evaluate these laws and to speak truth to power, and legal structures have lost the interest and ability to discern underlying values of law which have now begun vague and confused.

Lori A. Young, One Journey Toward Racial Justice: The Power of Me, the Power of We, 24 J. Gender Race & Just. 5 (2021)

The Racial Justice Team at Iowa-CCI is determined to monitor and hold the DMPD accountable for obeying the ordinance while we continue to press for its expansion. We don't give up. I've learned that there is something *9 productive I can do with my rage over racially-biased policing. I've learned that community organizing is a powerful and effective strategy to make social change. I've learned that we, the people, are empowered to make positive and justified change in Iowa and in America. History proves it, and now I've seen it.

James J. Zumpano, Jr., Abortion in the United States: A Cry for Human Dignity, 15 Intercultural Hum. Rts. L. Rev. 285 (2020)

In recent years, the debate surrounding abortion has taken flight. It has been one of the most discussed and most controversial topics in the history of the United States as well as around the world. This article undertakes a critical analysis of whether mothers in the United States should maintain their exclusive privacy right to choose to terminate a pregnancy or whether unborn babies also have substantive due process rights, in particular a right to life. The gestational process of human development as well as pregnancy from the mother's perspective shall first be addressed. The various types of abortion procedures, most reported reasons for attaining an abortion, as well as a mother's experiences post abortion and its interaction with the institution of family will also be explored. Conflicting claims from the mother, the unborn child, and the father will be examined as well as the varying doctrines of religious institutions, ideas of philosophy, and the viewpoints of activist organizations from both the pro-life and the pro-choice movements. The legal responses in form of the treatment of abortion in various societies and the United States' history of abortion legislation as well as the jurisprudence of the Supreme Court will also be discussed. Lastly, current and changing conditioning factors in government and politics as well as appraisals of intervention will be *286 explored via critical legal analysis and a solution proposed with a view toward contributing to an order of human dignity, using the framework of the New Haven School of Jurisprudence.

Creating Opportunities for Law Students with Disabilities in the 21st Century: Inclusivity on Campus and in the Workplace, 28 Am. U. J. Gender Soc. Pol'y & L. 271 (2020)

The following is a transcript from the Journal of Gender, Social Policy & Law's Disabilities Symposium in partnership with the ABA Commission on Disability Rights and the Law Student Admission Council held in the Fall of 2019. Featuring the story of, Catholic, Tony Coehlo and Judy Perry Martinez sponsor of the Americans with *273 Disabilities Act signed into law nearly three decades ago, extending civil rights and protections to millions of individuals across the country. Despite the current protections in place, however, a significant gap between our aspirations, and our reality persists.

Henry Amoroso, Paula Alexander Becker, and Evan Weiss, A Social Contract: The Doctrine of Unconscionability and its Relation to Social Progress, 28 Cardozo J. Equal Rts.& Soc. Just. 51 (2021)

The current structure of American contract law may limit the availability of adequate remedies for citizens within certain socioeconomic strata who, in the formation of a contract, often experience an asymmetry of information, financial resources, and lack what is broadly termed social capital. This paper further argues that this population might be better served by expanding how the court interprets and applies the doctrine of unconscionability through a reexamination of the foundational principles that led to its codification in the 1950s in the Uniform Commercial Code. Throughout this paper, I will also consider how several foundational principles of Catholic Social Teaching closely align with the foundational principles of American law and unconscionability, namely: solidarity, subsidiarity, a clarified accounting of freedom and equality, and, most importantly, the absolute dignity of the human person. By coming to a better understanding of these foundational principles shared across the American legal and Catholic intellectual traditions, we will be better suited to judge the appropriate application of the doctrine of unconscionability itself. Applications are made to living wage and guaranteed basic income initiatives.

Helen M. Alvaré, Church Autonomy After Our Lady of Guadalupe School: Too Broad? Or Broad As It Needs to Be?, 25 Tex. Rev. L. & Pol. 319 (2021)

In Our Lady of Guadalupe School v. Morrissey-Berru (Guadalupe),¹ the Supreme Court reaffirmed that the Religion Clauses of the First Amendment preserve a broad right of church autonomy to determine “matters of ‘faith and doctrine,”’² “church government,”³ and “internal management decisions ... essential to the ... central mission” of religious institutions,⁴ free of state intrusion. It held that this doctrine includes, but is not limited to, a “ministerial exception” banning governmental intrusion into the “selection of the individuals who play certain key roles.”⁵ It concluded that two employees: Agnes Morrissey-Berru and Kristen Biel--teachers of religion and other subjects at two Catholic elementary schools--were legally equivalent to “ministers” who could not, therefore, pursue age and disability discrimination claims against their employers....⁶Part V then takes up possible threats to the church autonomy doctrine in the future, resulting from its breadth. The Guadalupe dissenters and other observers¹² highlight the fear that religious institutions will abuse their roles as employers¹³ and that courts will abdicate their judicial responsibilities¹⁴ to determine the applicability of the church autonomy doctrine. Religion Clauses scholars have already sounded the alarm about many employees at religious institutions potentially losing the protections of employment nondiscrimination laws.¹⁵ I, therefore, conclude in Part V with a discussion of recommendations for courts and religious institutions that wish to maintain a constitutionally required level of respect for religions to maintain their independent authority to preserve and transmit their faith, doctrine, and religious missions.

José E. Alvarez, Biden's International Law Restoration, 53 N.Y.U. J. Int'l L. & Pol. 523 (2021)

If the Biden administration approached the eight trends left over from the Trump presidency according to the values espoused in Fratelli Tutti, the world could see a more transformative U.S. approach to international law instead of the more likely tempered return to normalcy. Yet even the latter rightly generates sighs of relief among most international lawyers and within the U.S. foreign policy establishment. In the minds of many, Biden's restoration, even if modest, will be a massive improvement over the prior administration's manifold transgressions against national and international law. At the very least, Biden's election will forestall a fearsome slide towards greater international disorder and “global authoritarianism”²⁰¹ and return the United States to relatively stable relations with nations entitled to respect. Biden, like most prior U.S. presidents, will try to explain, sometimes implausibly, how his actions comport with international law. The Trump administration rarely bothered to do that much and often flaunted international law.²⁰² Even on his way out the door, Trump violated *586 internationally accepted norms governing free and fair elections.²⁰³ Biden's election will bring international lawyers back into “the room where it happens.”²⁰⁴ What they do when they get there remains a work in progress. The 2020 election demonstrates that U.S. politics continue to be defined by sharp divides between ‘values' voters who often identify as evangelical Christians and secular, largely urban elites on the east and west coasts. Ironically, the successful candidate most strongly backed by ‘coastal elites' turned out to be a practicing Catholic apt to pay heed to Pope Francis's call to defend common humanity (Fratelli Tutti) and protect the planet (Laudato si’). Fortunately for the United States and perhaps the world, President Biden seems to agree with those who still have faith that international law and its institutions can help achieve both of these goals.

Jonathan Cantarero, Liberation Theology and Political Process: A Case Study of New York City's Mayor, 10 Wake Forest L. Rev. Online 68 (2020)

Liberation theology as a religious movement focuses on the socioeconomic and political liberation of the oppressed through the disruption of governing structures.¹ On a conceptual level, this movement has been extensively considered and examined by legal scholars and theologians. On an empirical level, discussions regarding its actual impact on real world issues have largely been limited to Latin America, where the movement began.² This essay explores the application of liberation theology in United States politics through a case study of New York City Mayor Bill de Blasio. *69 As one of the few politicians who has voiced support for liberation theology,³ Mayor de Blasio has openly discussed the movement's influence on his work in the public sector. Thus, while Mayor de Blasio--a non-Christian white male--may not appear to be representative of the liberation movement as a whole, his actions as both Mayor and Public Advocate speak toward the impact this theological framework has exercised on his political ideology. Moreover, this impact can be considered and assessed through his work on, among other things, religious freedom.⁴ Notably, the influence that liberation theology has had on Mayor de Blasio in this area addresses a main critique of the movement, i.e., the potential for the hyper-politicization of theology at the expense of a pronounced diversion from the traditional, more spiritual, role of the Christian church.⁵ Despite this criticism, this Article suggests that through politicization of liberation theology, Mayor de Blasio has enabled people to draw nearer to God, not further away. 

Katherine Cook, Florida's Frivolous Flirtation with Shareholder Fiduciary Duty in Closely Held Corporations, 17 Ave Maria L. Rev. 61 (2019)

Therefore, Florida law has already shown there are various ways to solve the conundrum that closed corporations impose on their minority shareholders. In Florida, the Florida Business Corporation Act protects shareholders from many situations including ousting; thus, there is no need to create a new doctrine for minority shareholders when they already have multiple options to protect themselves.²⁰⁵ Imposing a shareholder-to-shareholder fiduciary duty is not only unnecessary but also outside the realm of corporate law and bad public policy. As demonstrated, the courts have other options to provide relief for the minority shareholder, which do not require judicial adventurism.

Jenita Gillespie, 4 Ways Legal Ops Can Advance Diversity, ACC Docket, (2021)

Jenita J. Gillespie, CP, MBA is the Director, Legal Operations for Bon Secours Mercy Health, Inc. Bon Secours Mercy Health, Inc. is the United States' fifth largest Catholic health care ministry and one of the nation's 20 largest health care systems. There has been a lot of focus on diversity, with the American Bar Association (ABA) introducing numerous resolutions, corporate requirements for working with diverse law firms, and goals to promote diversity in legal departments. Yet a tremendous struggle remains to exemplify a diverse legal landscape.

Daniel Griffith, Healing the Harm-the Effectiveness of Restorative Justice in Response to Clergy Abuse, 17 U. St. Thomas L.J. 18 (2020)

In this article, I describe the nature of restorative justice, its origins, and its many practical uses in response to harm, including the harm of clergy abuse. Restorative justice interfaces well with the discipline and practice of law, as both are oriented to classic justice--giving each their due. Restorative practices are also consistent with biblical justice in that they foster right relationship among those who have been harmed and broader society. The fall 2019 law symposium at the University of St. Thomas School of Law ably demonstrated the utility of restorative justice in healing harm, as manifested through its diverse and adaptable applications.¹ In teaching restorative justice to law students, my colleague Professor Hank Shea and I have discovered an openness to restorative practices and their power to bring personal healing to law students, where needed. In addition, restorative practices align well with important practical legal skills, consistent with emerging research that demonstrates that skills of listening, empathy, and teamwork are integral to successful lawyering.²

Tom Johnson, John Choi, Bernard Hebda, Tim O'Malley, and Stephanie Wiersma, Panel Transcript: The Role of Restorative Justice in Addressing Clergy Sexual Abuse and Helping its Survivors, 17 U. St. Thomas L. J. 133 (2020)

What we wanted to do with restorative justice sessions was set the stage for us to prove to each other--at least give the archdiocese the opportunity to prove to the county attorney and others, our sincerity and our efforts to correct some wrongs, but also to do it in a way that it was measurable somehow. We said, "Okay, we'll do this restorative justice thing," but rather than just saying, "Alright, we'll do it," I think it even says you'll do a certain number within a certain period of time. It was very specific.

Daniel T. Judge, Catholic Education and the Formation of Conscience, 96 Notre Dame L. Rev. Reflection 248 (2021)

Before all else, Catholic schools are “a place to encounter the living God who in Jesus Christ reveals his transforming love and truth. This relationship elicits a desire to grow in the knowledge and understanding of Christ and his teaching.”¹ Accordingly, Catholic schools are called to assist in the formation and development of their students' moral conscience. This, in turn, necessitates an inclusive environment; one that emphasizes human dignity in all its forms.

H. Justin Pace, Rogue Corporations: Unlawful Corporate Conduct and Fiduciary Duty, 85 Mo. L. Rev. 1 (2020)

This Article will consider various corporate lawbreaking scenarios in light of these frameworks. Particular attention will be paid to Dick's Sporting Goods' and Walmart's corporate decisions to stop selling firearms to eighteen- to twenty-year-olds, thus violating state law prohibitions on age discrimination in public accommodations. After considering and critiquing each moral theory in the context of examples of corporate lawbreaking, the Article will conclude with a recommendation for how fiduciary obligation law should regard “rogue” corporations.⁶ The second non-liberal (and non-utilitarian) model I will consider comes from Catholic Social Thought (“CST”). I include Catholic Social Thought for four reasons. First, there are well over 50 million Catholics in the United States,¹⁸⁶ and the hierarchical structure and long history of the Church allows for a central body to build a political theory over time.¹⁸⁷ Second, the Church *33 has long worked to position CST as an alternative to both liberalism and socialism.¹⁸⁸ Third, CST is persuasive as a matter of first principles. Fourth, CST is more concrete than other models, and thus more readily applied.¹⁸⁹ CST “focuse[s] more directly on social problems and concrete issues of justice” than the work of Rawls and Nozick.¹⁹⁰ CST also has a long history as an alternative to liberalism.¹⁹¹

Stefan J. Padfield, An Introduction to Viewpoint Diversity Shareholder Proposals, 22 Transactions: Tenn. J. Bus. L. 271 (2021)

In this Article, Part I provide a primer on viewpoint diversity shareholder proposals. Following the Introduction, the Article proceeds into Part II which provides a brief overview of shareholder proposals. Such proposals have been described as having “transformed the corporate landscape in the U.S.” over the last 30 years.¹ Part III explains the need for viewpoint diversity proposals. Part IV provides some examples of viewpoint diversity proposals, including proposals related to (1) protection of employees, (2) selection of board and related members, and (3) viewpoint discrimination in policymaking. Part V provides concluding remarks.

Andrea Pin & Luca P. Vanoni, Catholicism, Liberalism, and Populism, 46 B.Y.U. L. Rev. 1301 (2021)

Recent developments in constitutional and international law have drawn Catholicism into a formidable controversy. A clash of values that are pitting legal and political thinkers against each other on momentous issues has not triggered an unequivocal, unambiguous response from the Catholic world. Quite the contrary--a plurality of voices has surfaced. Such voices do not simply differ but often conflict with each other.

Russell Powell, Spirit of the Corporation, 44 Seattle U. L. Rev. 371, (2021)

There are strong theological arguments from a variety of traditions attributing a spiritual character to human institutions if not an individual spirit. A purely secular approach could conclude that such institutions have identifiable characteristics and cultures which, though created by human persons and other structures, take on an identity separate from those shaping them that may persist. I assert that both views may be identified as something we may understand as "spirit."

Spirits can be oriented more or less toward the common good and human flourishing or bare self-interest and domination. This orientation is shaped by the relationships the entity has with those who provide inputs (stakeholders) and those who create external incentives (markets and regulators). Changes to legal rules alone are unlikely to result in the transformation of corporate spirit. Enron may serve as an example of a corporation corrupted in its essence as a result of progressively more selfinterested and corrupt acts by managers combined with the willful blindness of regulators and observers. Some corporations have transformed as an apparent result of the epiphany of key managers (such as the case of Ray C. Anderson and Interface), but most of the corporations routinely identified as model citizens get to that place as a result of consistent or gradual commitments by investors, managers, and employees--sometimes supported by regulatory frameworks holding corporations to higher standards (such as the variety of benefit corporation entity options and certifications). Legal rules cannot prompt conversion in the hearts of corporate leaders, but they may be able to frame a paradigm that minimizes corruption and appropriately incentivizes pursuit of the common good as was imagined by Berle in Corporate Capitalism and "The City of God." 288

Joshua H. Shields, Of Serendipity and Rubik's Cubes: How Jeannie Frey Is Bringing an in-House Perspective to the ABA's Business Law Section, ACC Docket, June 2020, at 66 (2020)

Frey joined CHRISTUS after 14 years in-house, having left private practice to become the first general counsel office for a client Chicago-based healthcare system. She made use of organizations like the Illinois Association of Healthcare Attorneys and the Illinois Hospital Association, and networking opportunities with other GCs, to figure out the in-house role. “It turned out to be one of the greatest growth opportunities of my career because I had to determine how to best meet the organization's wide range of legal needs, and react to new legal issues as they arose,” she says.  At CHRISTUS, she is continuing a tradition of healthcare that begin with three Catholic Sisters from Lyons, France, who arrived in Galveston, Texas, to start Charity Hospital, the first Catholic hospital in the state. As GC, she feels responsible for protecting this legacy by ensuring the legal department is staffed with the best people to support the entire organization. “The importance and responsibility of continuing these institutions, and providing needed healthcare services to their communities, is pretty strong,” Frey emphasizes. “It's a challenge--but a very motivating one.” She also enjoys developing and working with a team of attorneys and other professionals to serve the organization's legal needs and create a leadership pipeline for the future.

Roel Staes, The General (Communications) Counsel, ACC Docket, (2021)

Roel Staes presents four rules for good communications counsel. He is the senior vice president legal and general counsel for FedEx Express in Europe. Over the course of his career at FedEx, he's managed the legal and security function for the company's operations outside of the United States from its international headquarters in Amsterdam. He obtained an MBA from Henley Management College after studying law at the Catholic University of Leuven (Belgium) specializing in aviation law.

Joshua Wright & Aurelien Portuese, Antitrust Populism: Towards A Taxonomy, 25 Stan. J.L. Bus. & Fin. 131 (2020)

Antitrust populism--or the populist use of competition policies--is currently on the rise again. This is mainly due to the challenges brought about by the digital economy to traditional competition tools. From a normative perspective, the economics of competition law should avoid embarking into the outdated populist reasoning of the early days of antitrust policy. From a positive perspective, there is a need to conceptualize such modern antitrust populism because its rampant influence requires further scrutiny. This is the main objective of the Article: it offers a taxonomy of antitrust populism, distinguishing between conceptual antitrust populism and political antitrust populism. It is argued in this Article that both facets of antitrust populism bolster and reinvigorate one another. This taxonomy of antitrust populism enables us to better understand (and subsequently tackle) the unprincipled use of antitrust laws for populist reasons. After having introduced the notion of antitrust populism (I), we shall decipher what we call political antitrust populism (II) before delving into the intellectual roots of conceptual antitrust populism (III). We shall conclude upon the implications of the taxonomy of antitrust populism henceforth proposed (IV).

Jennifer Lee Barrow, Recidivism Reformation: Eliminating Drug Predicates, 135 Harv. L. Rev. F. 418 (2022)

The Armed Career Criminal Act (ACCA) imposes a minimum fifteen-year sentence for violating 18 U.S.C. § 922(g) after three “violent felony” or “serious drug offense” convictions. The ACCA disproportionately impacts people of color and imposes significant costs on the federal judiciary and the criminal justice system overall. This Essay contributes to ACCA recidivism analysis by studying, for the first time, all people sentenced under ACCA and released in 2009, 2010, and 2011 during an eight-year follow-up period. This Essay uses nonpublicly available criminal history information from the Federal Bureau of Investigation and recidivism data from the United States Sentencing Commission. People sentenced under the ACCA with fewer than three “violent felony” predicates (and one or more “serious drug offense” predicates) reoffended less than those sentenced under the ACCA with at least three “violent felony” predicates. This Essay therefore recommends that Congress eliminate drug offenses as ACCA predicates because people sentenced under ACCA with fewer than three “violent felon[ies]” recidivate at a rate no greater than the federal offender population as a whole.

Jennifer Lee Barrow, The Return of the Jury: Conduct-Based Sentencing for Recidivism, 2022 Wis. L. Rev. 785 (2022)

Under current law, people charged under recidivist statutes are not entitled to have a jury assess their prior convictions. But the fact of a prior conviction should be proved to a jury beyond a reasonable doubt. This change would allow courts to use a conduct-based approach instead of a categorical approach while still complying with the Sixth Amendment.

When applying recidivist statutes such as the Armed Career Criminal Act (ACCA), the Supreme Court requires that courts use “a formal categorical approach, looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions.” The categorical approach bewilders judges, clogs court dockets, and frustrates the goals underlying recidivist statutes, such as consistency, deterrence, and incapacitation of the most dangerous criminals.

This Article builds on scholarship that evaluates alternatives to the categorical approach and explains why a conduct-based approach--focusing on the real-world facts of the prior offense--adjudicated by juries using a reasonable doubt standard is a better approach to recidivist, mandatory-minimum statutes such as the ACCA.

Mark H. Bonner, Jimmy Gurulé, & Laurie Levenson. Complex Criminal Litigation: Prosecuting Drug Enterprises and Organized Crime. Juris Publishing, Inc. (2019)

Complex Criminal Litigation: Prosecuting Drug Enterprises and Organized Crime, Fourth Edition provides practitioners and others interested in the federal criminal justice system with a comprehensive analysis of the arsenal of federal laws that provide federal prosecutors the means to combat criminal organizations, their leadership (i.e., the so-called "kingpins") and their infrastructure. These statutes include the Racketeer Influenced and Corrupt Organizations Act (RICO); the Continuing Criminal Enterprise or CCE statute; the Money Laundering Control Act; federal firearms statutes; and criminal and civil forfeiture laws that permit the seizure and forfeiture of the profits and instrumentalities of illegal enterprises. Further, the treatise includes an analysis of the principal legal issues that federal prosecutors and defense attorneys need to consider in handling long-term, complex criminal conspiracies that frequently involve multiple and diverse criminal acts, from the rules relating to grand jury secrecy, granting immunity, bail, criminal discovery, and all points in between. Finally, because organized criminal activity respects no national boundaries, the treatise includes a comprehensive discussion of international criminal law, including extraterritorial jurisdiction and extradition. Criminal trial attorneys involved in litigating complex criminal cases will benefit greatly from reading this treatise.

Cara H. Drinan, Jones v. Mississippi and the Court's Quiet Burial of the Miller Trilogy, 19 Ohio St. J. Crim. L. 181 (2021)

As I have argued in this Essay, while the Jones decision is “abhorrent,”¹³⁶ over time it may be a bigger blow to the Court's institutional reputation than it is to juvenile advocacy efforts. The Jones Court turned its back on fifteen years of case law that insisted youth are categorically different and “cannot with reliability be classified among the worst offenders.”¹³⁷ At the same time, it revealed itself to be out of touch with the dysfunction of American criminal justice and with the plight of minors facing JLWOP. Given the juvenile justice reform momentum established over the last decade, juvenile advocates can remain optimistic about state level reforms, but what can one expect of the Supreme Court on this front in the years to come? (Cara H. Drinan is Professor of Law, The Catholic University of America.)

Cara H. Drinan, The Miller Trilogy and the Persistence of Extreme Juvenile Sentences, 58 Am. Crim. L. Rev. 1659 (2021)

In this Article, I have argued that there is a clear path for courts to find both automatic transfer laws and mandatory minimums as applied to youth unlawful after Miller. These are indeed minority views, and by way of conclusion, I will address two criticisms. First, as I discussed supra in Part III, some judges continue to view the Miller trilogy through a narrow lens--they insist that it was a line of cases only about JLWOP, and even then, only JLWOP imposed as a result of one conviction for one crime, and perhaps even then, only in a context devoid of parole or clemency. ...Further, I simply argue that, if a judge makes that grave decision to transfer a child to adult court, and, if a child is convicted in adult court, then they should still enjoy the benefits of individualized consideration demanded by the *1683 Miller trilogy. Neither of those proposals precludes an extreme sentence for an outlier case in which a juvenile defendant is convicted in adult court of a most serious crime. It is true that my proposals would require more resources, care, and consideration by judges and prosecutors, but it is not true that my proposals ignore the instances when youth commit serious crime and require proportionally serious sentences. Despite the moral import and the practical significance of the Miller trilogy, youth in America continue to be subject to extreme sentences. This often occurs not because a judge determines that the minor's case exceeds the jurisdiction of the juvenile court or even because an adult criminal court judge determines that the minor deserves a lengthy term-of-year sentence. Rather, extreme youth sentences persist after Miller often because of the interplay between unbridled transfer provisions and mandatory sentencing schemes. As I have argued in this Article, today, relying upon the language, science, and logic of the Miller trilogy, courts should review challenges to these two procedural elements, and their interplay, with fresh eyes.  (Cara H. Drinan is Professor of Law, The Catholic University of America.)

Deacon Joseph R. Ferrari & Andrew Camilleri, When You Have A Procrastinating Client or Colleague, Time Management Will Not Work, Crim. Just., (Spring 2021)

Consider this: If we only had sunny days, all the time, the earth would burn; we need rain on occasion to help things grow. In other words, we need success, but we need a little failure as well--to help us grow, to learn how to navigate life. Our star candidate, partner, client, and counselor, whom we met at the start of this article, all had fears. They wanted to be perfect, or they felt they would not be successful. Instead, they needed to realize that life is filled with opportunities both pleasant and not so pleasant. We are not designed to be perfect, but we should try to use our time and talents toward improving the lives of others. Go forth, and just do it--NOW. (DEACON JOSEPH R. FERRARI, PhD, is the Vincent dePaul Distinguished Professor of Psychology at DePaul University and a Catholic Deacon in the Diocese of Joliet, Illinois. For 40 years he has studied chronic procrastination and is the author of Still Procrastinating? The No Regrets Guide to Getting It Done.)

Kevin H. Govern, Truth, Justice and Reconciliation in the Wake of Clerical Abuse in America. Baku State University Law Review 5(2) (2019)

This article outlines the history of cleric sexual abuse from 1950 through contemporary times, and surveys past civil and criminal prosecutions of Roman Catholic sexual abuse cases. Contemporary theories of criminal liability may be either an alternative to – or an adjunct with – civil tort lawsuits, and injunctive relief is increasingly sought to investigate as well as to deter future abuse. Time will tell the impact of ongoing state and federal RICO Act prosecutions not just on perpetrators but also clerics and Church decision-makers remaining in active ministry. Restorative justice, forums for listening and sharing, through stories and prayer, may well offer the most opportunity for fostering healing and reconciliation within the bounds of the law yet not directly involving courts or legal processes. Restorative justice strongly shines the light of the Gospel on this scourge, where agents of such justice are mindful of the words of the Apostle Paul, in his Second Epistle to the Corinthians that “[a]ll this is from God, who reconciled us to himself through Christ and gave us the ministry of reconciliation.” Remediative and restorative measures outside the courts must augment legal remedies within halls of justice for multifaceted and effective means to address the past and ongoing criminal and civil law and public health crises arising from cleric sexual abuse, and to help prevent future abuses from taking place.

Bob Hurley, Bones of Black Saints by Alex Charns 45-JUL Champion, 56 (2020)

Although Charns' book focuses mostly on Star and Zenko's relentless fight to obtain justice for their client and the travails of trying a high-profile criminal *58 case, it does have its lighter moments.  Charns leavens Bones of Black Saints with facts about the intricacies of hockey and obscure Catholic saints that will broaden readers' horizons. Finally, what I liked most about Bones of Black Saints was Charns' ability to capture the commitment, dedication, and passion that drove so many of us to become criminal defense attorneys.

Antony Barone Kolenc, "No Help You God": Religion, The Courtroom, and Proposal to Amend the Federal Rules of Evidence, 91 Miss. L. J. 1 (2022)

The Rules of Evidence should be strengthened across-the-board to limit the use of religion-related evidence as a tool of attack, except when used by a defendant in a criminal case. Case examples over the past decade demonstrate that religion-related evidence is being used to demean a person's religious affiliation, beliefs, and opinions, and to inflame the passions of the jury against a person based on religious bias. This has been especially true in drug trafficking cases and in cases involving Muslims and Neo-Pagans. Raising the evidentiary requirement to admit such evidence would work to protect the policies underlying the Religion Clauses of the First Amendment. This proposal to raise the admission bar for religion-related evidence does not apply, however, to defendants in a criminal case because of the competing interests in due process and general fairness for those being prosecuted by the government. Moreover, the evidentiary rules should allow the admission of relevant religion-related evidence that does not unfairly prejudice a person. There are ample instances where such evidence is necessary, such as when rehabilitating the credibility of a witness, illustrating the impact or mitigation of damages, or showing a person's pertinent character trait. For that reason, the bar should not be raised on religion-related evidence in such instances. This  [*68] Article's Proposed Rule 416--which includes individualized protections for religious (and non-religious) persons, a reverse-403 balancing test, and an exception for criminal defendants--attempts to accomplish these policy goals.

Paul J. Larkin, Jr. & Giancarlo Canaparo,The Resurgence of Economic Liberty: The Thirty-Eight Annual Federalist Society National Student, Symposium on Law and Public Policy--2019: Article: Are Criminals Bad or Mad? Premeditated Murder, Mental Illness, and Kahler v. Kansas, 43 Harv. J. L. & Pub. Pol'y 85 (2020)

Neither the Due Process Clause nor the Cruel and Unusual Punishments Clause contains a directive ordering the federal or state governments to define the substantive criminal law in any particular fashion. The Due Process Clause prohibits the government from punishing someone until he has been convicted of a crime under the governing jurisdiction's laws, but it does not instruct legislatures how to define those crimes and whether  [*153] or how to recognize defenses to them. The Cruel and Unusual Punishments Clause has even less relevance to the content of the substantive criminal law. It only comes into play after an offender has been convicted of a crime and focuses entirely on the punishments that he can receive. The criminal law recognizes various defenses--self-defense, defense of others, duress, necessity, consent, and so forth--but the Framers did not incorporate any of them into the text of the Constitution. Indeed, with the exception of the Treason Clause, the Constitution leaves entirely to the political process the definition of the penal code because the judgments involved in drafting it involve precisely the type of moral decisions that the public and its elected representatives are fully competent to make. The most that could be required of the federal or state governments is to make a nonarbitrary choice. The judgment that Kansas made easily passes that test.

Kayla Lasswell Otano, Victimizing the Victim Again: Weaponizing Continuances in Criminal Cases, 18 Ave Maria L. Rev. 110 (2020)

The criminal justice system protects defendants from the stresses of public accusation, incarceration before trial, and the risk of properly defending a case with the right to a speedy trial.¹⁹⁶ Victims have no such similarly founded constitutional right,¹⁹⁷ but victims do have “the right to proceedings free from unreasonable delay” under the CVRA.¹⁹⁸ This right serves as a parallel right to the defendant's right to a speedy trial.¹⁹⁹ Although both rights give the defendant and victim the right to speedy proceedings, the two often have opposing goals when actually implementing these rights.²⁰⁰ Due to the uniquely relative nature of the Sixth Amendment, waiving the right to a speedy trial does not prejudice the defendant's case per se.²⁰¹ One way to strategically delay a case is by weaponizing continuances--without regard to the stress and trauma which revictimizes the victim. This attack seeks an unreasonable delay to gamble on either evidence disappearing or witnesses becoming unavailable. Even though Congress intended to remedy such revictimization,²⁰² it is still true today that the goals of the CVRA have proven inadequate jurisdiction to *135 jurisdiction because victims are treated differently based solely on where their victimization took place.²⁰³ Not only are victims' rights laws different among the states,²⁰⁴ but in the federal system, some judges sua sponte address the right to proceedings free from unreasonable delays while others may not because there is no requirement to do so under 18 U.S.C. § 3161(h).²⁰⁵ When the defense does seek a continuance, the district judge has broad discretion to make an important decision.²⁰⁶ As reflected in other areas of criminal justice, that decision should be consistent and predictable.²⁰⁷ In an area of the law where delay is common, and seemingly inevitable, it is necessary to give all defendants and victims fair consideration to avoid mere delays of justice from becoming total denials of justice.

Aniceto Masferrer, Criminal Law and Morality Revisited: Interdisciplinary Perspectives, 84 IUS Gentium 1 (2020)

The relationship between morality and criminal law must constantly evolve to meet the needs of changing times and circumstances. Social changes and new situations require new answers. This chapter will take the famous ‘Wolfenden Report’ (1957) as a starting point for reviewing the interaction of criminal law and morality, in the context of the broader relationship between politics, law and morality. Moral laws and civil laws have different limits and practical purposes, as is made clear in the writings of Aristotle, Thomas Aquinas and Spanish scholastics such as Francisco de Vitoria, Domingo de Soto and Francisco Suárez. Modern philosophers such as Descartes, Hobbes, Rousseau, Kant, and Mill also raise important issues concerning the relation between law and morality. This chapter will draw the line between and explain the inescaple connections between criminal law and morality.

Eugene R. Milhizer, An Excerpt from Dissecting "Anatomy of A Murder": The Author, the Crime, the Novel, and the Film, 20 Ave Maria L. Rev. 105 (2022)

Anatomy of a Murder tells a story “gleaned from an examined life” and drawn from experience in one of the central arenas in which truth, or what passes for it in an imperfect world, is “exposed or obscured”--the courtroom.⁴³ Anatomy instructs that for all of its rules and formalities, the criminal justice system is a rather rudimentary endeavor in which juries and judges usually try to do the right thing, and which is sometimes difficult to evaluate. It is also a human endeavor, and thus invariably and unavoidably flawed.

Eugene R. Milhizer, Dissecting Anatomy of a Murder, Ave Maria School of Law Press, Inc. (2019)

This book explores—it dissects, if you will—Anatomy of a Murder in considerable detail. It tells the fascinating story of its author, John Voelker. It chronicles the actual, high-profile murder trial, in which he served as defense counsel. It explains how he adapted this real-life trial into a fictional form as a great novel. And it looks back on the production of the groundbreaking film that his novel inspired. In addition, to this largely historical assessment, this book considers several discrete legal and ethical issues the novel and film raise, including the implications of a criminal attorney “explaining law” to a client in a manner that may “suggest” a dubious defense. It also reflects upon broader questions, such as the proper role of the jury and the impact of community standards in a criminal trial. Finally, it evaluates the capacity of the criminal justice system to achieve true justice within the context of what Voelker called the “settled procedures and ancient rules” of law.

Raymond C. O' Brien, Church and State and Child Endangerment, 56 No. 4 Crim. Law Bulletin ART 1(Summer 2020)

This Article addresses the question of why persons responsible for administering the Roman Catholic Church in the United States would knowingly endanger children after receiving credible evidence of the possibility of sexual abuse by a cleric for whom they were responsible. Thus, this Article goes further than the crime of sexual abuse of minors, it addresses the actions of those who knowingly endangered additional children. While positing child endangerment upon the desire to protect the state-within-a-state that exists within the United States, this Article argues that the remedy lies in adherence to a spirit of openness sanctioned by Vatican II. While the Church struggles with this, the State will increasingly pursue accountability.

Manuel Rodríguez Puerto, Liberties, Rights and Punishments in Modern Natural Law, 84 IUS Gentium 45 (2020)

The aim of this chapter is to show the intersection of law and moral in criminal law from the point of view of legal theory in early Modernity. To understand this question, the chapter treats succintly the concepts of law, crime and moral good in the legal science of ius commune; this conception was based on an objectivized notion of justice; consequently, criminal law was conceived as a protection of basic moral goods. Legal theory of early modernity (centered here in the Modern School of Natural Law) described the law as a natural bundle of individual liberties. The legal order is designed to protect that freedom and, specifically, the aim of criminal law was to protect basic individual freedoms. Modern thought distinguished theological goods from legal principles, but the intention was the protection of the most important moral good: the individual freedom.

Meghan J. Ryan, Framing Individualized Sentencing for Politics and the Constitution, 58 Am. Crim. L. Rev. 1747 (2021)

Pope Francis recently emphasized in his encyclical letter Fratelli Tutti that “[a]ll Christians and people of good will” should not only recognize human dignity, but they should actively “work ... for the abolition of the death penalty, legal or illegal, in all its forms, [and] also ... work for the improvement of prison conditions, out of respect for the human dignity of persons deprived of their freedom.”¹⁴² At the same time, certain deeply held religious views--such as believing in an angry God who punishes people for sinning--are often associated with harsher views on punishment.¹⁴³ Religious persons are not monolithic in *1768 their beliefs, however, or in how those beliefs affect their views on punishment.¹⁴⁴ Considering the important place that human dignity holds in Christian faiths and the importance of religion-- especially Christianity--to conservative politics,¹⁴⁵ emphasizing the importance of dignity in punishment might very well bolster the appeal of mandating individualized sentencing under the Eighth Amendment.

Ronald J. Rychlak, Using the Rules of Evidence to Control Criminal Confessions, 54 Tex Tech. L. Rev. (2021-2022)

Applying hearsay law to criminal confessions will not resolve all the issues surrounding the admission of criminal confessions. It will, however, have the advantage of using a rule of evidence to address an evidentiary problem. 2 4 At first blush, it seems likely that this approach would exclude more confessions and admissions than does the current practice. 25 If all out-of-court statements made by the defendant are hearsay, there would be a starting assumption that they are inadmissible.1 26 Of course, as Justice Frankfurter wrote: "Ours is the accusatorial as opposed to the inquisitorial system .... [S]ociety carries the burden of proving its charge against the accused not out of his own mouth ... but by evidence independently secured through skillful investigation. "127 Moreover, there are other ways around the hearsay rule, and the applicability of those exceptions would need to be considered.1 28 Interrogation practices might also shift. Hearsay is an evidentiary rule, not a rule designed to regulate police conduct like Miranda.129 As such, authorities may well still use interrogations to seek information for further investigation, well aware that the statements will be inadmissible but hopeful that the information will help resolve the crime and lead to admissible evidence. That may create problems that need to be addressed with rules designed to control police conduct, but that is an improvement over using constitutional provisions that are forced into areas that they are not intended to cover.

Dan Villalba, Duren, Pope Francis, and the Death Penalty: How Catholics Can Render the Capital Jury Selection Process Unconstitutional, 57 Am. Crim. L. Rev. 1663 (2020)

Pope Francis's disavowal of the death penalty in all cases is a new avenue for challenging the constitutionality of the jury-selection process in death penalty cases. If there is a significant number of Catholics excluded from serving as jurors in death penalty cases, then death qualification may violate defendants' rights to have their case heard before a fair cross-section of the community. Under Duren, Catholics would likely constitute a distinct group in the community. Catholics are a definable group with shared beliefs in their faith. Proving underrepresentation would require shifting focus from whether Catholics are underrepresented in jury pools and examining whether Catholics are continuously underrepresented on capital juries. Finally, the Supreme Court will have to conclude that death qualification does not in fact manifestly and primarily advance a significant state interest. Rather, death qualification results in capital juries that are more prone to convict and that do not fairly represent the voice of the community at large.¹⁶⁸ As opposition towards the death penalty continues to increase,¹⁶⁹ this misrepresentation of the community will continue to grow, and the capital jury will be less and less a fair cross-section of American communities.

Owen L. Anderson, A Tribute to Nawzad Yasin and Others: Part 2: Others, 6 Oil & Gas, Nat. Resources & Energy J. 373 (2021)

Part 1 of this essay discusses the short but remarkable life of Nawzad Yasin. Part 2 discusses the careers of my former students who serve as full-time academics. In addition, this part includes a former student who is a retired academic, a former student who is currently teaching part-time and hopes to teach full-time upon earning her Ph.D., and a former student who hopes to teach full-time after earning her Ph.D. and fulfilling a professional obligation to her employer that funded her Ph.D. studies.(Christine Fritze was born in Anadarko, Oklahoma, “The Indian Capital of the Nation,” and the sixth of eight children in a post-World War II, middle class, devout Roman Catholic home. She attributes growing up in a large Catholic home as having a significant impact on her practice of law and on her teaching.)

Lee DeHihns, Sometimes We Need to Look Back to See What's Needed Going Forward, Nat. Resources & Env't, at 3 (Summer 2021)

We are called to action by that Resolution. If we are to follow President Roosevelt's and Mr. Nelson's warnings, we have much work to do. The ABA has the practical expertise to ensure that sustainability is a part of everything we do. We must educate both our profession and our society about sustainability. Finally, we have the passion for justice that is indispensable in making the sustainability movement successful. Lawyers can contribute significantly by ensuring that their clients and collaborating entities, whether courts, government agencies, businesses, civil society organizations, or private individuals, are aware of sustainability concerns and conduct their activities consistent with relevant laws and regulations. As Pope Francis said in his 2015 encyclical Laudato Si, “Once we start to think about the kind of world we are leaving to future generations, we look at things differently; we realize that the world is a gift which we have freely received and must share with others. Intergenerational solidarity is not optional, but rather a basic question of justice, since the world we have received also belongs to those who will follow us.”

Energy Bar Association, In Memoriam: Judge Joseph R. Nacy, 41 Energy L.J. XXII (2020)

Judge Nacy was a proud Army Veteran, devoted Catholic, and loving family man who enjoyed running and competing in local races. He served in the 2nd Platoon Company C, 1268th Engineer Combat Battalion in WWII in the European Theatre of Operations and at Luzon, Philippine Islands. He was honorably discharged as a Sergeant in 1946.

D. Brian Scarnecchia, Why Rights are Wrong in ASEAN and Beyond: A Critique of the Foundations of Universal Human Rights, 26 (2021): 283 -311.

The Association of Southeast Asian Nations (ASEAN) is a battleground, one theatre in what Pope Francis has referred to as a “World War” where universal human rights, ersatz rights, and Asian values clash. Its people seek to escape old style Asian dictators while at the same time ward off a new ideological colonisation. Part One of this article provides a brief overview of the development of ASEAN and its human rights mechanisms. Part Two then examines whether the original axiomatic listing of human rights or an iteration of human rights founded upon the human genome or a Kantian underpinning can legitimise human rights and, if not, whether reference to the human soul made in the image of God with its natural law may substantiate the human rights project, perhaps, articulated as congruent with the purpose and design courts now recognise in the natural laws found in every ecosystem of nature. Part Three contends that aspects of the public trust doctrine, i.e., the natural use principle and the precautionary principle, are analogous to natural law principles and, because ‘the book of nature is one”, these environmental law principles may help jurists to recognise a theory of natural law liability in order to promote and defend authentic human rights. Finally, the author recommends that NGOs of Catholic Inspiration should, when appropriate, appeal to immaterial realities, God and the human soul, as a firm foundation of human rights and, also, when appropriate, advance in domestic, regional and international venues a theory of natural law liability based on environmental law principles in order to promote and defend authentic human rights.

Lucia A. Silecchia, A "Directed Trust" Approach to Intergenerational Solidarity in American Environmental Law and Policy: A Modest Proposal, 45 Wm. & Mary Envtl. L. & Pol'y Rev. 377 (2021)

The Article will then propose that one approach to making ancient trust theory more useful as a way to protect environmental resources is to incorporate, in some manner, the modern concept of a “trust director” or “directed trust” function into the environmental regulatory regime. It will first discuss what a “directed trust” means in the private trust context. Then, it will explore some of the reasons such a model may be of use in the complex realm of environmental protection. Finally, it will acknowledge that while the precise mechanism by which this might be done is not entirely clear, the concept of conferring on some entity specific powers over alleged trust resources and the actions, vel non, of the trustees, is worth bringing to the complex field of environmental protection. Lucia A. Silecchia is a Professor of Law, The Catholic University of America, Columbus School of Law. 

John I. Winn, JD, LLM, J. Seth Chatfield, Ph. D, MBA, MPH, & Kevin H. Govern, JD, LLM, Medical Volunteers During Pandemics, Disasters, and Other Emergencies: Management Best Practices, 11 Seattle J. Tech., Envtl. & Innovation L. 282 (2021)

Disaster preparedness is a fundamental obligation of every hospital.¹ Major emergencies can result in vastly increased demand² for clinical and non-clinical staff. Managing volunteer-related legal issues during a disaster may be difficult or even impossible. Careful preparation is essential for the successful integration of volunteers during a surge in patients.³ Efficiently onboarding skilled and unskilled volunteers allows current providers and first responders to remain focused on triage, critical care, and specialized patient needs. In some instances, volunteers may be the only personnel available to fill essential functions when organic resources cannot fully respond to peak demand. Volunteers can also fill gaps if current staff are unable to report for duty because of mandated quarantine periods or restricted travel conditions. Regular employees may even refuse to *283 report out of fear of contracting an infectious disease, dangerous travel conditions, or other concerns.⁴ Treating or evacuating large numbers of elderly, medically-frail, or chronically-sick patients⁵ may not be possible at all without volunteers. A viable Emergency Operations Plan (EOP),⁶ consistent with the National Disaster Medical System (NDMS) should contemplate the potential necessity of volunteer medical and public health professionals such as physicians, nurses, pharmacists, dentists, veterinarians, and epidemiologists, as well as key support positions that include but are not limited to interpreters, chaplains, office workers, legal advisors and others.⁷ Volunteer partners may include non-credentialed but otherwise qualified clinicians as well as non-clinicians from the surrounding area. Supplemental staff may be sourced from community clinics, health departments, EMT-fire departments, or law enforcement agencies. Volunteers may also be provided by local non-profits such as American Red Cross, Salvation Army, food kitchens, churches, or others.⁸

Recent experience indicates healthcare facilities that fail to plan and respond adequately to emergency conditions may be held liable for resulting patient or staff harm.⁹ The continuous threat posed by natural disasters, communicable diseases, or bio-terrorism has revolutionized hospital planning. Following Hurricane Katrina, there was no coordinated system for recruiting, deploying, and managing volunteers to help deal with the crisis.¹⁰ Thousands of healthcare professionals and other volunteers from New York City and surrounding communities responded in the hours and days following the 9/11 attack.¹¹ Preparation for worst-case scenarios involves consideration of all reasonable measures to mitigate the *284 risk that responding volunteers may harm others¹² or injure themselves. Injured volunteers might also seek to file lawsuits themselves against host facilities. A well-conceived plan for incorporating volunteers within an EOP could significantly enhance liability protection for facilities, providers, and others who act in good faith conformity with the plan.¹³

Michael Ariens, Anti-Discrimination Ethics Rules and the Legal Profession, 50 Hofstra L. Rev. 501 (2022)

One of COSAC's policy justifications for amending New York's anti-discrimination rule rings as true as ever: “[T]he legal profession should aspire to be more diverse, more equitable, and more inclusive of its own members.”¹⁵¹ Inclusion, of course, works in a variety of ways. One such way is to acknowledge that stark differences among lawyers have and will always exist.

Michael Ariens, Model Rule 8.4(g) and the Profession's Core Values Problem, 11 St. Mary's J. Legal Mal. & Ethics 180 (2021)

Model Rule 8.4(g) declares it misconduct for a lawyer to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” The American Bar Association (ABA) adopted the rule in 2016 in large part to effectuate the third of its four mission goals: Eliminate Bias and Enhance Diversity. The ABA adopted these goals in 2008, and they continue to serve as ABA's statement of its mission.

A substantial number of lawyers opposed the ABA's adoption of Rule 8.4(g), most often on free speech and religious liberty grounds. Since its adoption by the ABA, lawyers have argued for and against state adoption of Rule 8.4(g), in part based on competing understandings of the “core values” at stake in this debate.

References to the core values of the American legal profession emerged relatively recently. They are also often mentioned absent any particular definition. Not surprisingly, lawyers disagree about whether some normative declaration expresses a core value for American lawyers. They also disagree whether there exists a hierarchical ranking of core values, and if so, how to organize core values in tension with one another. In part, this represents a long-existing debate among lawyers about how to fulfill one's duties to client, court, third parties, and community. It also reflects a split among American lawyers. The American legal profession has been fractured along a number of axes for a long time. Private practice lawyers specialize in vastly different fields of law; *181 they work alone, in Big Law, in government, in corporations, and in legal aid/public interest entities; they represent disparate types of clients, such as individuals and organizations, and within those hemispheres, they represent persons and organization with diverse legal needs and interests; they work in small towns and large cities; they earn millions and support themselves by taking second jobs; and they differ in their views regarding the usual subjects, politics, culture, and religion. Such a disaggregated group will struggle to form a consensus, much less an overwhelming majority, about what values lie at the core of a definition of “lawyer,” “legal profession,” the “practice of law,” or “the lawyer's duties.” The Rule 8.4(g) debate may offer some insight into why the parties seem to speak past one another, and whether any core values are embraced across the divisions within the legal profession. Relatedly, the ABA's shrinking membership reflects the difficulty of speaking of a (singular) legal profession, and the decline in the ABA's influence indicates it is less likely to be able to generate a broader acceptance of specific core values as reflected in rules such as 8.4(g).

Michael Ariens, The Appearance of Appearances, 70 U. Kan. L. Rev. 633 (2022)

The Framers argued judicial independence was necessary to the success of the American democratic experiment. Independence required judges possess and act with integrity. One aspect of judicial integrity was impartiality. Impartial judging was believed crucial to public confidence that the decisions issued by American courts followed the rule of law. Public confidence in judicial decision making promoted faith and belief in an independent judiciary. The greater the belief in the independent judiciary, the greater the chance of continued success of the republic. During the nineteenth century, state constitutions, courts, and legislatures slowly expanded the instances in which a judge was deemed partial, and thus ineligible to act. One such instance was actual bias: a judge was to avoid favoring one party or disfavoring another. Close behind the duty to avoid actual bias was the duty of judges to avoid creating a suspicion of unfairness or bias. Public suspicion that a judge was biased, even if untrue, lowered public confidence in judicial integrity and thus, judicial independence. The American Bar Association adopted that understanding in its 1924 Canons of Judicial Ethics. Canon 4 challenged judges to avoid both “impropriety and the appearance of impropriety.” The difficulty of applying an appearance of impropriety standard was found in the very making of the Canons. One proposed canon was modified before ABA approval even though it was an excellent example of why judges should avoid an appearance of impropriety. The Canons were premised on the ideal that a judge was to act honorably; avoiding improper appearances maintained the judge's honor. The Canons served as guidelines for judges, as standards subjectively interpreted by them and applied to their personal and *634 professional lives. They were not intended to serve as rules to sanction or discipline judges for actual or perceived misconduct. For the next half-century, the Canons largely served this limited purpose. In 1972, the ABA adopted a Code of Judicial Conduct, supplanting the Canons. Most states adopted the Code as law. The duty to avoid creating an appearance of impropriety was part of the 1972 Code, and its importance rose. Both supervising courts and newly-created judicial conduct commissions often assessed charges of judicial misconduct through the lens of the appearance standard. The ABA's 1990 Model Code altered its 1972 iteration by emphasizing the positivist aspect of the Code: any Canon or Section (rule) written in terms of “shall” was mandatory. The duty to avoid an appearance of impropriety was found in Canon 2 of the 1990 Model Code. Judges were regularly disciplined for violating Canon 2. In the ABA's 2007 reformation of the Model Code of Judicial Conduct, commenters debated the efficacy of “appearance of impropriety.” The ABA joint commission reforming the Code went back and forth before deciding to split the baby: Canon 1 declared as an aspirational goal the avoidance of an appearance of impropriety, but no judge was subject to discipline for failing to do so. This approach was strongly opposed, and the ABA hastily reversed course. It amended Rule 1.2 to declare that a judge “shall avoid ... the appearance of impropriety.” Nearly all states have adopted some appearance of impropriety standard. For a half-century, failing to avoid the appearance of impropriety has been central to disqualifying and disciplining judges. This paper investigates the origins of the “appearance of impropriety” standard, its modest development, and its vigorous use since the rise of modern judicial ethics.

Michael Ariens, The Fall of an American Lawyer, 46 J. Legal Prof. 195 (2022)

John Randall is the only former president of the American Bar Association to be disbarred. He wrote a will for a client, Lovell Myers, with whom Randall had been in business for over a quarter-century. The will left all of Myers's property to Randall, and implicitly disinherited his only child, Marie Jensen. When Jensen learned of the existence of a will, she sued to set it aside. She later filed a complaint with the Iowa Committee on Professional Ethics and Conduct. That complaint was the catalyst leading to Randall's disbarment.

Randall had acted grievously in serving as Lovell Myers's attorney. He was also a convenient scapegoat for a profession reeling from the Watergate affair and other crises negatively affecting the reputation of lawyers among the public. Not only had Randall served as ABA President, he was the coauthor of a well-known Statement on Professional Responsibility that emphasized the lawyer's duty to serve clients and society before oneself. Randall had chosen otherwise, and authorities planned to “hold him to account.”² The thesis of this essay is that Iowa disciplinary authorities, both its Grievance Commission and the Iowa Supreme Court, strayed from their duty to impartially administer the law as applied to lawyer discipline. They apparently did so in part due to Randall's egregious behavior in defending himself from his own actions related to Lovell Myers. They also did so in part because Randall served more as a symbol than a tragedy.

A detailed study of the fall from grace of a 79-year-old lawyer from Cedar Rapids, Iowa in the late 1970s may serve as a cautionary tale. More broadly, Randall's case offers some insight into the evolution of American legal ethics in the mid-20th century. Finally, Randall's case may reflect the challenges of applying the rule of law to one whose behavior was marked by efforts to ignore the rule of law.

Noel Augustyn, Tribute, 10 St. Mary's J. Legal Mal. & Ethics XIII (2019)

The death earlier this year of Professor Tom Shaffer of the University of Notre Dame, professor of legal ethics, has provoked many memories among many people who were fortunate enough to have known him. As one of his students--in the broad sense that term--I was privileged to be asked to share some of my own, and they begin, literally, on the day that I and others in my class first met him.

Robert F. Cochran, Jr., Tribute, 10 St. Mary's J. Legal Mal. & Ethics XVIII (2019)

Thomas L. Shaffer , professor of legal ethics, was my teacher, mentor, co-author, and friend for forty-three years. Tom set me on the path of exploring the relationships between religion, law, virtue, and law practice, and I have been on it ever since. Most of what I know about those subjects, I learned through his guidance. I started this as a tribute to Tom, but almost every section included a memory of his wife Nancy's care and guidance, as well as that of Tom. I decided to make this a tribute to her as well. As you will see, they seemed to share every aspect of one another's lives.

John S. Ehrett, Virtue and the Administrative State, 37 ND J.L. Ethics & Pub Pol'y 43 (2023)

Debates over the lawfulness and importance of the administrative state frequently stall out because participants operate from incommensurable premises. Its critics appeal to history and tradition, and its defenders to the need for a unified national response to contemporary crises. By contrast, this article offers a novel critique of the administrative state through the lens of the virtue-ethics tradition that sidesteps this impasse. The article argues that any account of the administrative state must take into account the core bureaucratic virtues - public-spiritedness and subject-matter competence - that individuals within the administrative state must exemplify in order to succeed in their roles, and yet, that stand in tension with the institutional design of the administrative state. Finally, it develops a critical - but not nihilistic - paradigm for future judicial engagement with the administrative state, on the model of recent Supreme Court decisions in this area.

Luis Ricardo Fraga, PhD, Hearing on "The Need to Enhance the Voting Rights Act: Practice-Based Coverage" July 27, 2021 Vote Dilution and Voter Disenfranchisement in United States History, 36 Notre Dame J.L. Ethics & Pub. Pol'y 659 (2022)

In this essay I argue that one cannot understand current efforts at voter suppression, including both vote dilution and voter disenfranchisement, without placing these efforts within the long history of voter suppression in the United States. Although the targets of this suppression have varied and include largely European immigrants, African Americans, Latinos, Asian Americans, Native Americans and other language minorities, there are several commonalities in the voter suppression that occurred. First, the attempts at suppression were always group-based. These targeted groups of would-be and actual citizens were defined by group characteristics, and in that way were designed to minimize the political influence of groups of voters. Second, the attempts most often followed policies and practices that had led to the empowerment of these groups. It is important to understand that the empowerment of groups to access the franchise and exercise political power led to resentment from oppositional groups who now had to share power with previously disenfranchised groups. It was this underlying resentment that led to the efforts at voter suppression that would soon follow that empowerment. Stated differently, with few exceptions, newfound empowerment for previously marginalized groups rarely led to permanent empowerment. Third, there *660 are strikingly similar mechanisms that were used to suppress the votes of targeted groups. Policies and practices that led to vote dilution, such as gerrymandering, the use of at-large elections, and the changing of formerly elected positions to appointed positions were effectively used in most instances. The resulting loss of meaningful voter participation and reduction in the election of candidates of first choice most often then led to policies and practices of disenfranchisement including limiting voter registration, effective literacy tests, and the selective application of these efforts. Fourth, these policies and practices of voter suppression in the U.S. occurred in both the North and the South. In fact, it appears that there was likely a process of political learning from one region to another. Fifth, the role of the federal government, and especially the Supreme Court, in validating these policies and practices of voter suppression is clear, despite the 15th Amendment and the Voting Rights Act. Without Supreme Court approval, and most recently instigation by the Court, these suppression efforts would not have had the broad impact that we see throughout history, and that we continue to see today.

Stefanus Hendrianto, S.J., The Last Testament of Justice Scalia: On Aquinas and the Law, 34 Notre Dame J.L. Ethics & Pub. Pol'y 197 (2020)

On January 7, 2016, Justice Antonin Scalia delivered his last public lecture, titled Saint Thomas Aquinas and Law. Analysts have criticized Scalia for having an anachronistic reading of Aquinas. But those analysts had missed seeing that Scalia was searching for a deeper meaning instead of chastising Aquinas's theory of law. This Article investigates whether Aquinas's theological insights and Scalia's jurisprudence show similar traits. This Article argues that although Scalia's jurisprudence is not identical with Aquinas's theology, their positions are much closer than people would immediately imagine. They shared similar views on the limits of judicial authority and the need to find a balance between the private goods and the common good. This Article postulates that in his last lecture, Scalia was expressing his fear of subjectivity in the process of judging, in which Aquinas theory of interpretation might justify the volitional status of legal interpretation. Nevertheless, Aquinas believed that a virtuous judge must not seek honor and glory, but rather to direct people toward the common good. Thus, both Aquinas and Scalia shared a similar view that a reasonable judge must avoid sentimentality and personal values in judging.

Andrew K. Jennings, Conscience Leave, 35 Notre Dame J.L. Ethics & Pub. Pol'y 649 (2021)

In the federal government, political officials come and go while civil servants remain. In the ordinary course, the political officials make decisions about what policies the government will pursue while civil servants use their labor and expertise to carry those policies out--even when they disagree with them. But what happens when political officials pursue policies that civil servants view as deviating from normal bounds--policies that are unethical, immoral, or unlawful? This Article examines when and how civil servants might object to such policies, including going so far as to leave government service. It concludes that when faced with such situations, employees' personal benefit-cost analyses will generally lead them to not object to deviating policies.

Vincent R. Johnson, Lawyers, Mistakes, and Moral Growth, the Man in the Ditch: A Redemption Story for Today by Mike H. Bassett, the Man in the Ditch, LLC; Www.themanintheditch.com, Dallas, Texas, 122 Pages, (2021) Hardcover Isbn 1737235102, 12 St. Mary's J. Legal Mal. & Ethics 180 (2021)

Bassett's book, The Man in the Ditch, is a valuable addition to the literature that explores the professional responsibilities of lawyers. It is part of a great tradition which has long recognized that acting ethically as a lawyer presents moral challenges, and that sometimes there are no simple answers. Resolving such dilemmas often requires weighty deliberation and clear, mature judgment. Even then, the process can be arduous and uncertain. The consolation is that this type of ethical decision-making, and the pain it may entail, provides an opportunity for moral growth.³⁵ Bassett's book will be a comfort and an inspiration to lawyers who have fallen into The Ditch.

Vincent R. Johnson, Tribute, 10 St. Mary's J. Legal Mal. & Ethics XXVIII (2019)

As a law professor and scholar, Thomas L. Shaffer (April 4, 1934 to February 26, 2019)¹ was one of the giants² in the field of legal ethics as it emerged in the last quarter of the twentieth century. Along with other great law teachers who have recently passed--including Monroe Freedman,³ Geoffrey Hazard,⁴ and Ronald Rotunda⁵--Shaffer molded the ideas about attorney professional responsibility that were shaped anew⁶ in the wake of *xxx Justice Tom C. Clark's American Bar Association report on the “scandalous” deficiencies in lawyer discipline⁷ (1970) and the Watergate Crisis⁸ that tarred President Richard M. Nixon⁹ and other prominent lawyers with the stigma of criminal and ethical misdeeds (1972-1974).¹⁰

Throughout his career, Shaffer taught law mainly at the University of Notre Dame and Washington and Lee University.¹¹ He also served as a visiting professor at several other law schools, including UCLA, the University of Virginia, the University of Maine, and Boston College.¹² Shaffer never taught at St. Mary's University, but he did have ties to both the law school and the university.

Fr. John Paul Kimes, Scandal and Due Process: A Canonical Response to the Mccarrick Case, 36 Notre Dame J.L. Ethics & Pub. Pol'y 237 (2022)

On June 20, 2018, the Catholic Church was rocked by the highest profile scandal in modern history. While Theodore McCarrick was no longer a sitting archbishop, his position as a cardinal and the perception that he was a close advisor to Pope Francis made the twin press releases from the Archdioceses of New York and Washington, D.C. top news across the world. There is little doubt of then-Cardinal McCarrick's influence in the American Church; there is equally little doubt that the accusations against McCarrick set off a global media firestorm and that his prosecution directly led to new legislative efforts by Pope Francis to close a perceived gap in the Church's continued prosecution of clerics' sexual offenses. This Article will recreate McCarrick's prosecution using only the information found in three press releases. This reconstruction will demonstrate some of the fundamental differences between civil and canon law, both procedurally and substantively, as well as highlight the Church's efficacious legislative efforts of the last twenty years to prosecute clerics' sexual crimes and canon law's ability to respond in moments of crisis.

Veryl Victoria Miles, Looking Beyond the Profit and into the Light: Consumer Financial Protection and the Common Good, 35 Notre Dame J.L. Ethics & Pub. Pol'y 93 (2021)

The intention of this Article is to review the various statements of Catholic Social Teaching that are fundamental in describing economic justice and that are most pertinent to any consideration of consumer financial protection as essential to the common good. This review will begin with Pope Leo XIII's *95 1891 encyclical Rerum Novarum⁴ and other encyclicals that followed Rerum Novarum as a continuum of Church teaching regarding social and economic justice; the pastoral letter from the United States Conference of Catholic Bishops entitled Economic Justice for All (1986);⁵ and the Pontifical Council of Justice and Peace's handbook on the Vocation of the Business Leader (March 2012).⁶ The next Part of this Article will include a description of the original goals and mission of the Act and the CFPB, and an assessment of how the intended goals and objectives of the Act and the structure and activities of the CFPB reflect the values and goals of social and economic justice from the perspective of Catholic Social Teaching. That is, to what extent do these legislative and regulatory initiatives bring us closer to providing for and ensuring that consumer financial products and services are accessible, fair, and helpful in meeting the needs of all potential users and the interests and rights of providers in the spirit of economic justice informed by Catholic Social Teaching?

Russell G. Pearce, Tribute, 10 St. Mary's J. Legal Mal. & Ethics LIV (2019)

In Jewish tradition, the honorific Zecher Tzadik Livracha--May the Memory of the Righteous be a Blessing--is reserved for great religious teachers who have embodied holiness in their lives. I greatly appreciate this invitation to write a memorial for Tom Shaffer, a devout Catholic. Tom had a tremendous influence on me. He provided an alternative model for being a law professor, opened my eyes to the importance of integrating Judaism into my work, and taught me the importance of redressing the corrosive influence of radical individualism on legal culture.

Michele R. Pistone, Expanding Immigrant Justice by Training Professionals, Judges' J., Winter 2022, at 15

This article begins by explaining the extent of the access to justice problem in immigration and the inability of lawyers to meet the demand for low-cost or pro bono legal representation. The next section suggests a solution to the problem through Department of Justice accredited representatives. That section describes the long-standing regulations authorizing “accredited representatives” to provide legal services to immigrants with applications before the U.S. Citizenship and Immigration Services (Immigration Services) and in removal proceedings before immigration court. The final section puts forth a plan for increasing the pool of accredited representatives through an educational program and surrounding support within the legal services ecosystem

Kyle Smith,The Dogma Lives Loudly Within Them: Revisiting the Role of the No Religious Test Clause in Senate Confirmation Hearings , 33 Notre Dame J.L. Ethics & Pub. Pol'y 313 (2019)

The broad wording of the religious test ban in Article VI engraved a policy of religious nondiscrimination on the foundation of the Republic. During an era of intense religious sectarianism, the rule shaped a culture of cooperation and inclusiveness indispensable to the preservation of the Union. The bold step taken to ban religious tests for offices in the United States radically cut against the prevailing norms and forged a new norm to serve as a North Star for future generations. As so many confirmation hearings continue to show, we find ourselves again at a point where sectarianism is deeper than ever. Sectarianism has inspired discrimination and religious tests which, due to their regularity and predictability, contravene the letter, spirit and implications of Article VI. The Constitution's structure makes the issue virtually inaccessible to judicial review or any check or balance. Constitutional norms in effect today demonstrate that this lack of cross-government accountability is no barrier to the restoration of religious nondiscrimination in the Senate, but it is imperative that supporters of nondiscrimination ensure that this norm is sufficiently established before it becomes overshadowed by the emerging desires to narrow protections into irrelevance.

Adeline Allen, Sperm and Eggs in Consideration of Money: A Pound of Flesh for Three Thousand Ducats?, 19 Ind. Health L. Rev. 275 (2022)

Donor conception is a practice in which a donor sperm or egg (or both) is used to conceive a child. Usually, the donor sperm or egg is procured in a financial transaction: gametes exchanging hands for money. The "donor" in donor conception is a bit of an oxymoron, for a donation it is not when money--and sometimes big money--is a feature of the practice, not a bug. This Article will show that donor conception is not proper to who human beings are given their nature as embodied beings, with particular attention to the children of donor conception and to the donors. The bargained-for exchange of sperm and eggs for money also does not satisfy the requirement of commutative justice, historically understood to be of paramount importance in the doctrine of consideration in contract law. Further, the aspects of both the embodied nature of the person and the impropriety of trading on the body present in donor conception are considered in light of William Shakespeare's play The Merchant of Venice. This Article concludes that donor conception, being unjust and not oriented to human flourishing, ought not to be done. A re-orientation of the law toward a proper respect for each person's embodied nature and toward fostering a posture of gratitude in receiving each child as a gift would be welcome.

Douglas W. Allen, Symposium: The Institutional Economics of Marriage: A Reinterpretation of Margaret Brinig's Contribution to Family Law, 95 Notre Dame L. Rev. 1537 (2020)

Margaret (Peg) Brinig has made a massive contribution to family law over the course of the past thirty-five years. Spanning the two fields of economics and law, her views have evolved over time to ones that see family as a matter of covenant. The concept of a covenant is mostly unknown in the modern secular world and is absent in economics. Without (hopefully) changing Brinig's meaning, I reinterpret her work and argue that her concept of a covenant is equivalent to the economist's understanding of an institution. The goal of reinterpreting her work in light of institutional economics is to make it more accessible to economists and to provide additional transaction-cost insight into why a covenant is so important.

Raj Bhala, Combatting Nationalism by Applying Catholic Teaching and Studying Iran's Constitution, 3 U. St. Thomas L. J. 521 (2021)

Empathy is vital in this pedagogical process: studying legal texts of a foreign culture from the perspective of that culture, just as the student would wish foreigners do for the texts of that student's culture. That is, as  [*610] to how the study of a foreign legal culture can increase empathy, it is the open-minded, open-hearted study itself -- the process itself. But that process requires appropriate substantive curriculum. Challenging substantive curricular options are equally vital to this pedagogy. For American international legal educators and their students, the 1979 Constitution of the Islamic Republic of Iran is one such option. Their ability to understand Iran, and quell prejudice against it, would help combat nationalism that undermines the human dignity of Americans and Iranians alike.

Stephanos Bibas, Symposium: Faith, Law and Love: Peg Brinig's Legacy, 95 Notre Dame L. Rev. 1423 (2020)

Peg Brinig has been a beacon to many around her: to her colleagues (like me), her students, and especially her own kids and grandkids. She lives her faith, giving humbly of herself and touching the lives of many around her. And she exemplifies the scholarly virtues: honesty, humility, persistence, scrupulous care, and principled concern. We will miss her. But she leaves behind an impressive body of research on how to build healthy communities and support families. We will always treasure her friendship and her deep commitment to building stable, permanent families to help raise healthy kids. God bless you, Peg.

Marta M. S. Calçada, Fr. Anderson M. R. Alves, Ph.D.Hormonal Contraceptives and Post-Fertilization Effects, 27 Issues L. & Med. 29 (2022)

Hormonal contraceptives are widely used for birth control and therapeutic purposes. The mechanism of action proposed for these compounds can be found in several scientific journals published to date. The present work consists in a scoping review of a convenience sample of papers regarding the mechanisms of action of each of the three main classes of hormonal contraceptives available. Different parameters and biological consequences associated with their use were also reviewed. Based on these data, we evaluated the probability of embryo loss due to the use of hormonal contraceptives. Evidence indicates the probability of embryo loss due to post-fertilization effects.

Ignacio Sánchez Cámara, Habits of Intelligence. Liberty of Expression and the Criterion of Harm in John Stuart Mill, 84 IUS Gentium 145 (2020)

Isaiah Berlin considered the English thinker John Stuart Mill (1806-1873) to be the founder of modern liberalism. He was the son of James Mill, friend of Jeremy Bentham and the promoter, with the latter, of a group known under the term “philosophical radicalism”, adherent of utilitarian moral philosophy and the principles of political liberalism. This movement pursued the transformation of English political and legal institutions. J. S. Mill's main contributions belong to the fields of ethics, political philosophy, logic end economic theory. Among his works are A System of Logic Ratiocinative and Inductive (1843), Principles of Political Economy (1848), Considerations of Representative Government (1861) and Utilitarianism (1863).¹ Autobiography, published posthumously on the year of his death, is worth reading as it provides useful information on the education he received, its value and limitations, and on the nature and evolution of his ideas. He believed that society can only achieve a satisfactory state when the most capable men exercise the highest authority. Civilisation is defined by the presence of two characteristics: the existence of a responsible government and the emergence of scientific knowledge. Freedom is a prerequisite for progress, and equality, when taken to the extreme, collides with justice and may damage freedom and respect for intellectual and moral excellence, a necessary condition for social progress and wellbeing.

Douglass Cassel, The Commission on "Unalienable Rights": A Critique, 11 Notre Dame J. Int'l & Comp. L. 1 (2021)

The Commission on Unalienable Rights was chaired by Harvard Law Professor Mary Ann Glendon. I am privileged to call Professor Glendon a friend and have long admired and learned from her scholarship on the Universal Declaration of Human Rights. 12She is perhaps better known for declining to accept the University of Notre Dame's Laetare Medal in 2009 after learning that President Obama would be the main commencement speaker and receive an honorary degree. 13

There are legitimate criticisms, as well as points to admire, both in the Unalienable Rights report's idiosyncratic conception of human rights and in the U.S. record on international human rights. However, there can be little dispute that authoritarian regimes are now on the march around the world, and that the government of the rising superpower in China rejects many of the basic concepts of freedom, democracy, and human rights that have animated international human rights law since 1945.  [*33] The Commission is then right to recommend that, "in this moment of crisis for the human rights idea, America must pursue that cause with renewed vigor, with pride in what has been accomplished, with humility born of the awareness of her own 'shortcomings and imperfections' and of the complexities of world politics . . . ." 274

Ligia De Jesus Castaldi, Robert Fastiggi, Jane Adolphe, Civil Divorce and the Catholic Lawyer: Answers to Common Moral Questions, 26 Catholic Social Science Review (2021)

This article answers common moral questions on civil divorce and legal practice relevant to faithful Catholics in the legal field, such as whether a Catholic lawyer may be morally involved in civil divorce litigation and, if so, to what extent, in light of basic Catholic moral principles on marriage and civil divorce. It addresses moral dilemmas that Catholic legal practitioners, judges and law students may face in employment situations and divorce-related legal services. In addition, the article addresses civil divorce alternatives like reconciliation, declaration of marriage nullity and legal separation.

Clarke D. Forsythe & Regina Maitlen, Stare Decisis, Settled Precedent, and Roe V. Wade: An Introduction, 34 Regent U. L. Rev. 385 (2022)

Since stare decisis has been consistently identified as a judicial policy by federal and state courts--because settled law has a relationship to the reliability, faithfulness, and effectiveness of the judiciary--applying the rule of law to Roe requires respect for the caselaw on settled law. To the extent that stare decisis et quieta non movere has become part of the rule of law, the Court's failure to settle Roe after 49 years--and the political and cultural damage caused by that failure--should caution the Court to extricate itself from the issue, decentralize the issue, and return the abortion issue to the States clearly and completely, where public policy might better align with public opinion. Over time, as Americans understand the consequences--that immediate change will be limited and recognize the diversity of abortion policy through federalism--it will be good for the Court. Many will wonder why it did not happen sooner. And it will be recognized as the right decision for the Court and our politics.

Nicole Stelle Garnett, Hartman Hotz Lecture: The Comparative Legal Landscape of Educational Pluralism, 73 Ark. L. Rev. 455 (2020)

As part of the fiscal stimulus bill enacted in the midst of the coronavirus pandemic, Congress extended certain billions of dollars in financial benefits to small businesses, including private and faith-based schools. 463Education Secretary Betsy DeVos acted quickly to block state efforts to exclude private schools from receiving more education funding. 464For some private  [*529] schools in the United States, these benefits are a matter of life and death. After they were forced to close in March 2020, dozens of private schools announced that they would not reopen in the fall. 465Many more expressed concerns that the financial stress of the closures (and resulting declining enrollments) would force them to follow suit. These concerns have prompted some to urge for the restructuring of K-12 education funding, including a dramatic expansion of private-school-choice. 466As a lifelong school-choice proponent, I agree that reconsidering the exclusion of private and faith-based schools is a matter of great urgency. I fear that we have come to this point too late for many schools that serve American children, including thousands of our most vulnerable students. As a student of comparative education policy, I also believe that parental-choice proponents, including myself, have failed to consider the tradeoffs between funding and autonomy in other countries. The time has come to reconsider that as well.

Scott W. Gaylord, Neutrality Without a Tape Measure: Accommodating Religion After American Legion, 19 Ave Maria L. Rev. 25 (2021)

Neutrality also plays an important role in Establishment Clause cases, but the Court seems in the process of altering its understanding of neutrality in that context as well. In the wake of American Legion, a majority of the Court appears ready to embrace the accommodationist view of neutrality. While not adopting a specific test for religious symbols, practices, and monuments that are "newer" (i.e., not longstanding), a majority indicated in American Legion that neutrality under the Establishment Clause involves only neutrality between and among religions, not between religion and nonreligion. Accordingly, courts need not consider the spatial relationship between the religious and secular components of a display or symbol. The Lemon and endorsement tests have been retired (at least until a different majority holds sway), and the history and tradition approach from Marsh and Town of Greece likely has emerged as the dominant Establishment Clause test. And if Justice Gorsuch is correct, courts need not consult a temporal tape measure either. Instead, courts must ensure only that the government acts neutrally between and among religions, and they should do this by looking at the history and traditions of religion in the public sphere. 360

Luke Isaac Haqq, Reconsidering Wrongful Birth, 95 Notre Dame L. Rev. Online, 177 (2020)

Unexpected but healthy children and children unexpectedly born with anomalies can create real costs for parents, and sometimes these outcomes can legitimately be imputed to the negligent or intentional acts of clinical actors, like failures to detect vertically transmittable diseases, or deliberately withholding information out of a fear that it will motivate a patient to abort. Costs attending congenital disease, however, could still be addressed in a recalibrated terrain, for example, by only permitting recovery under a child's claim of wrongful life, rather than the wrongful birth or wrongful conception claims of parents. By returning to the original policy of the prenatal tort of tending to the needs of injured children, Christian and other pro-life organizations need not challenge the federal reproductive rights directly yet can still make significant strides in recalibrating and redirecting reproductive policy in a better direction.

Charlotte P. Hopson, The Family vs. the State: Protecting the Rights of Parents to Raise and Educate Their Children, 18 Geo. J.L. & Pub. Pol'y 605 (2020)

Societies once almost universally respected the rights of parents to raise and educate their children, but that era is ending. Governments are increasingly mandating how parents should raise their children, a troubling precedent. In order to combat this trend, this Article proposes that the United States should pass a constitutional amendment protecting the rights of parents. Ireland provides a model for such an amendment in Articles 41, 42, and 42A of the Irish Constitution. This Article examines the U.S. and Irish Constitutions and judiciaries in order to show why the U.S. should adopt such an amendment. The U.S. and Ireland have similar constitutional histories and judicial approaches, making Ireland uniquely qualified to serve as a constitutional example to the U.S. In recent years, the U.S. has witnessed a number of recent battles that depict the need for an amendment such as this. That said, this Article does not suggest that the route to a constitutional amendment is easy. Instead, it recognizes the difficulty of passing such an amendment and explains why the attempt is nevertheless important.

Paul M. Matenaer, Comment: But Instead Expose Them: Public Access to Criminal Trails in U.S. Law and Canon Law , 21 Wis. L. Rev. 891 (2021)

Public access to criminal trials is an indispensable attribute of the Anglo-American legal system. The "rule of publicity" has been the rule in England from time immemorial and was a fundamental attribute of the judicial systems of the early American colonies. The Supreme Court has concluded that "a presumption of openness inheres in the very nature of a criminal trial under our system of government," and the First and Sixth Amendments safeguard the public nature of criminal trials. Yet, as essential as publicity is to the American legal system, secrecy is to the Catholic Church's legal system: canon law. Amidst calls for greater transparency and accountability in the Church, recent developments in canon law have only taken small steps to lift the pall of secrecy. Meanwhile, U.S. Catholics have discovered many reasons to distrust their leaders, stemming from sexual and financial misconduct and cover-up. While some canonical scholars have recognized the benefit of employing secular models of transparency, none has endeavored to provide a method of incorporation or to suggest concrete changes. This Comment begins that conversation by comparing public access in criminal trials under U.S. law and canon law and by examining whether canon law can successfully incorporate any elements of American law. Due to fundamental differences in the two legal systems, many elements cannot be incorporated, but the core values promoted by the American legal system's public access doctrine are values inherent in good governance in general. This Comment applies these values to criminal trials in canon law and provides three concrete proposals that uphold the fundamental values of good governance and accomplish the express purposes of the Church's penal system. Rather than hide its criminal trials in secret, the Church should instead expose them.

Stephen L. Mikochik, Pope Francis and Civil Unions, 20 Ave Maria L. Rev. 96 (2022)

Admittedly, St. Thomas concludes the Natural Law and Civil Law are not co-extensive, so that conduct which the former considered vicious the latter was not necessarily required to prohibit.³⁶ Civil law, however, cannot sanction what the Eternal Law (and thus the Natural Law) condemned since it would be unjust and thus no longer a law.³⁷ If “sanctioning” vice is the same as formally cooperating with it, it would appear again that laws recognizing civil unions simply are not legitimate.

Of course, an offhand statement during an interview does not constitute official Church teaching, even if made by the Pope himself and especially if not intended to be made public. Yet, the Pontiff's words are an invitation to rethink the Church's position on civil unions. Even if the same conclusion is ultimately reached, the process enables us better to understand the grounds for that teaching and better to distinguish just from unjust discrimination. In words Pope Francis did assent to have published, “[t]he Christian community and its Pastors are called to welcome with respect and sensitivity persons with homosexual inclinations, and will know how to find the most appropriate ways, consistent with Church teaching, to proclaim to them the Gospel in its fullness.”³⁸

Holly M. Randall, From Peyote to Parenthood: Why Employment Division v. Smith Must (and Might) Go, 45 Okla. City U. L. Rev. 66 (2020)

Employment Division v. Smith has ravaged First Amendment jurisprudence and the right to free exercise of religion for thirty years. Its holding is inconsistent with originalism, causes confusion among circuit courts, and creates a roadmap for state-sponsored religious hostility under the guise of neutrality. However, this upcoming term presents an opportunity for change and true restoration of American freedom. I believe that a majority of the Justices recognize the shortcomings of Smith and will use Fulton v. City of Philadelphia to restore the balance between the Establishment Clause and Free Exercise Clause by overturning Smith. For advocates of religious liberty, this day will be a long time coming, yet welcomed with open arms. A new era of religious freedom will flourish once Smith is overruled.

Charles J. Russo and William E. Thro, The Demise of the Blaine Amendment and a Triumph for Religious Freedom and School Choice: Espinoza V. Montana Department of Revenue, 46 Dayton L. Rev. 131 (2021)

Espinoza has the potential to play a major role in helping to end what former President George W. Bush described as the "soft bigotry of low expectations." 245This "soft bigotry" condemns many children, especially those from economically deprived backgrounds, to attending low-performing schools from which they have little, if any, chance of succeeding academically and beyond, denying them, their parents, and families opportunities to participate in the seemingly elusive "American Dream."

Espinoza thus represents a significant step toward achieving the as of yet unfulfilled promise of Brown v. Board of Education's equal educational opportunities for all of America's children and their families, regardless of their races, creeds, ethnicities, genders, socioeconomic or immigration statuses, or (dis)abilities. 246 Brown's goal of equal educational opportunities for all children and their families is one well worth pursuing, perhaps now more than ever before in the nation's history.

Tara Sander Lee, Ph.D., Maria B. Feeney, Ph.D., Kathleen M. Schmainda, Ph.D., James L. Sherley, M.D., Ph.D., and David A. Prentice, Ph.D., Human Fetal Tissue from Elective Abortions in Research and Medicine: Science, Ethics, and the Law, 35 Issues L. & Med. 3 (2020)

Since the U.S. Supreme Court issued its landmark decision in 1973 to legalize abortion, over 60 million preborn have been killed by elective abortion. While alive in the womb, these preborn are abandoned and not protected under current law. But once aborted, their body parts are a highly esteemed and prized commodity amongst certain members of the scientific community. Moral discourse is disregarded for the sake of science. The public have been lulled and lured into believing that this practice must continue in order to understand and develop cures for some of the most debilitating diseases of our day. But they are mistaken. This practice is not necessary, especially in light of numerous noncontroversial alternatives. Here, we expose and consider the false and misleading claims regarding human fetal tissue (HFT) in research from scientific, legal, and ethical points of view. We endeavor deeply to understand the depth of the injustice in this practice and what forces promote and maintain it; and by revealing and understanding these forces, we set forth how these inhumane practices can be ended. An accurate portrayal of the history of HFT use in research is provided, along with a close examination of the current state of this practice under existing laws. The serious societal implications are also discussed, which will worsen beyond comprehension if these practices are allowed to continue. The timeliness of this information cannot be overstated, and a thorough understanding is paramount for anyone who desires to know the facts about HFT in research and medicine and its detrimental impact for humanity.

James Grant Semonin, Note: "For the Forgiveness of Sins": A Comparative Constitutional Analysis and Defense of the Clergy-Penitent Privilege in the United States and Australia, 47 J.Legis. 156 (2020)

What is striking me about [efforts to curb the clergy-penitent privilege is that legislators are] now going beyond public institutions and reaching very deeply into the interior life of the Church - how we manage our sacramental life - and that kind of aggression, that sort of violation of religious liberty ... should concern not just Catholics but anyone who is committed to ... political values. 1 While this Note argues against subordinating the privilege to mandatory reporter statutes, there is clearly a manifest interest in preventing and prosecuting child abuse. It is evident that the Church has failed in many regards, and institutional  [*192] changes from the inside out are necessary to ensure that clergy are adequately trained to counsel penitents regarding the means through which the ends of justice and mercy may be best served. With properly drafted legislation and thorough institutional reform, legislatures and churches alike can work in tandem to address child abuse and protect legitimate religious practice.

Leslie H. Southwick, Federal Courts, Practice & Procedure: A Survivor's Perspective: Federal Judicial Selections from George Bush to Donald Trump, 95 Notre Dame L. Rev. 1847 (2020)

This laborious trek through the nomination and confirmation terrain, peaks and valleys, cool, comforting lakes, and, at times, some hot desert, has been personal at times. The review has caused me to relive some of my own travails and again to sympathize for the even worse travails of friends and acquaintances. Nonetheless, as I wrote in the conclusion to my book, The Nominee, and as I expect many nominees feel, we learn from painful experiences. My sense was that I was refined in the fire of the controversies that engulfed me. I had the benefit of success to avoid anger or bitterness. All who are involved as target, attacker, defender, or impartial observer might usefully contemplate that what we see depends on where we stand, that fairness is a subjective concept that is affected by all in our past that has got us to our present. The truth of Aleksandr Solzhenitsyn's words in The Gulag Archipelago are to me a comfort and a goad, that "the line separating good and evil passes not through states, ... nor between political parties either - but right through every human heart - and through all human hearts." 553That being true, at least minor humility by all involved in the confirmation contests would be justified.

Hannah Teller, How To Heal: Evaluating the Remidies for New Jersey Clergy Sex Abuse Victims, 45 Seton Hall Legis. J. 525 (2021)

Cardinal Tobin of Newark, in a videotaped message, told Newark Catholics that the church "can never return "to business as usual.'" 198  [*551] Both the survivors of clergy abuse and the Catholic Church will never be able to return to the status quo following many years of clergy sex abuse. Filing a lawsuit or submitting a claim through the IVCP cannot remove the pain and suffering caused by childhood sexual abuse. This comment does not take the position that the remedies available to survivors will heal the individuals, families, and communities impacted by this institutional failure. The recent legal developments in New Jersey have shown how far the survivors and institution have come over the past several decades since the abuse was uncovered. At best, the opportunity for survivors to decide how they choose to proceed in seeking justice creates a survivor-oriented approach. Both remedies have strengths and flaws, but the mere existence of both separate reforms allows the victim to decide how they will hold the perpetrators and institution accountable.

John Witte, Jr. and Andrea Pin, Faith in Strasbourg and Luxembourg? The Fresh Rise of Religious Freedom Litigation in the Pan-European Courts, 70 Emory L.J. 587 (2021)

When the Grand Chamber of the ECtHR in the 2011 Lautsi case addressed the issue of whether crucifixes were permitted in Italian public school classrooms, 598Professor Joseph Weiler, an Orthodox Jew wearing his yarmulke in the courtroom, defended the continued display of the crucifix despite the objections of atheist parents. 599Among other things, Weiler warned the ECtHR not to "Americanize" Europe, by superimposing a "neutrality" model of religious freedom and church-state relations, akin to what was being enforced in American courts at the time. 600The European idea of neutrality first surfaced in ECtHR cases, but this idea has influenced the CJEU as well. Time will tell if the CJEU adopts a stronger version of religious neutrality. Ironically, the United States Supreme Court has backed away from the Smith neutrality test in its most recent cases, and it might soon abandon this test in favor of a more robust protection of the free exercise of religion as had been the law before Smith. 601If  [*661] that proves true, perhaps the "Americanization" of Europe might be just what is needed after all, at least in protecting the free exercise of religion.

James J. Zumpano, Jr., Abortion in the United States: A Cry for Human Dignity, 15 Intercultural Hum. Rts. L. Rev. 285 (2020)

In recent years, the debate surrounding abortion has taken flight. It has been one of the most discussed and most controversial topics in the history of the United States as well as around the world. This article undertakes a critical analysis of whether mothers in the United States should maintain their exclusive privacy right to choose to terminate a pregnancy or whether unborn babies also have substantive due process rights, in particular a right to life. The gestational process of human development as well as pregnancy from the mother's perspective shall first be addressed. The various types of abortion pro cedures, most reported reasons for attaining an abortion, as well as a mother's experiences post abortion and its interaction with the institution of family will also be explored. Conflicting claims from the mother, the unborn child, and the father will be examined as well as the varying doctrines of religious institutions, ideas of philosophy, and the viewpoints of activist organizations from both the pro-life and the pro-choice movements. The legal responses in form of the treatment of abortion in various societies and the United States' history of abortion legislation as well as the jurisprudence of the Supreme Court will also be discussed. Lastly, current and changing conditioning factors in government and politics as well as appraisals of intervention will be explored via critical legal analysis and a solution proposed with a view toward contributing to an order of human dignity, using the framework of the New Haven School of Jurisprudence.

 

Stacy Brustin, Regulation of Non-Immigrant Birth Tourism – Safety Imperative or Political Pretext? CLE Paper for American Bar Association, Family Law Section, October 2020.

Ms. Brustin is the Director of the Immigrant and Refugee Advocacy Clinic of Columbus Community Legal Services, the Columbus School of Law's on-campus clinical education program. She supervises students engaged in litigation, limited assistance, and policy reform on behalf of immigrants and refugees in D.C. and Virginia.  She also has expertise in family law and public benefits matters.A Vision Forward: Policies Needed to Protect the Best Interest of “Category 4” Unaccompanied Immigrant Children, Principal Author, Justice for Immigrants Campaign, U.S. Conference of Catholic Bishops June 2021 available at https://justiceforimmigrants.org/a-vision-forward-uac/.

Kaitlin Ann Coyle, Particularly Abused: Closing the Backdoor on Certifiably Deniable Particular Social Group Asylum Claims, 19 Ave Maria L. Rev. 179 (2021)

Asylum protection was not created to be an easy path to U.S. Citizenship, nor was it intended to be a means for undocumented individuals to stay in the country for long periods of time. Rather, its purpose was to offer safety to those fleeing persecution on account of a protected ground. The current practice of adjudicating PSG claims that blatantly fail to meet the necessary elements of asylum law at the forefront must change. These PSG claims have the practical effect of backing up the courts, undercutting the viability of aliens with real claims, and ultimately financially stripping the alien of any money earned in the U.S. The legislature must close this loophole by implementing a higher credible fear standard at the border and taking action to combat attorney abuse. While it is impossible to change the pull effect the U.S. has on many immigrants, the spirit of the law demands recognition of the detrimental and overwhelming effect meritless PSG claims have on immigration courts. Congress must close the backdoor on certifiably deniable PSG asylum claims, while protecting the immigrant, in order to correct the overcrowded, abused, and broken system before it is too late.

Cindy Izquierdo, Not Your Average Summer Camp: Children in Immigration Detention, 22 Scholar: St. Mary's L. Rev. & Soc. Just. 101 (2020)

Plagued by a decade long civil war, funded by the United States government, the United States was a main contributor to the violence that engendered the deaths and displacement of many Salvadorans.² Post-war, a massive and catastrophic wave of prolonged gang violence erupted in the streets of El Salvador.³ The United States was amid the plight of displaced Central American immigrants all along; from contributing billions to corrupt Central American governments, to firearm trafficking, and arming the criminal syndicates that commit violent crimes against children.⁴ ....¹² Deportations further gang behavior because one contributing factor is America's demand for illegal drugs--a lucrative business that entices gang members.¹³

Jerome Perez, Heirs of an Administration: Unlawful Executive Actions, 71 Cath. U.L. Rev. 405, (2022)

The Supreme Court of the United States, in DHS v. Regents on June 18, 2020, decided to stall the Trump administration from rescinding the Deferred Action for Childhood Arrivals (DACA) policy that the Obama administration created contrary to the Administrative Procedures Act (APA)--even though in 2016 the Supreme Court affirmed a preliminary injunction on the Deferred Action for Parents of Americans (DAPA) policy, which mirrors DACA. This blunder offhandedly sacrifices the Supreme Court's reputation as nonpartisan by enlisting itself as the future arbiter of administrative issues with self-evident resolutions and deciding contrary to those resolutions to endorse a political agenda. Now, when a President acts unlawfully through their administrative agencies, subsequent Presidents who wish to uphold their constitutional obligation and reverse those prior actions has to plea to the Supreme Court and satisfy the APA's arbitrary and capricious standard. Chief Justice Roberts, who wrote the DHS v. Regents opinion, held that the rescission of DACA by the Trump administration was reviewable and also arbitrary and capricious against the APA but failed to consider the illegality of DACA in the Court's analysis.

This note illustrates the illegality of DACA utilizing the Texas v. United States case that imposed the injunction on DAPA, juxtaposing the two policies. The note recommences with an analysis of DHS v. Regents revealing why the ruling is contrary to the Constitution, Immigration Nationality Act, Homeland Security Act, and the APA. Lastly, the note reveals the ramifications of the Regents' holding, citing the Trump administration's twist on midnight rulemaking.

Gabriel Sáenz, America's Second-Class Children: An Examination of President Trump's Immigration Policies on Migrant Children and Inquiry on Justice Through the Catholic Perspective, 22 Scholar: St. Mary's L. Rev. & Soc. Just. 143 (2020)

We already have the building blocks to establish and codify a universal Just Standard that will protect all children, regardless of immigration status, and is rooted in the strong foundation of Natural Law.³⁶⁸ Together, we can ensure Justice for thousands of immigrant children. For we do not have an illegal immigration problem but a humanitarian crisis.³⁶⁹ I believe it is time for the greatest nation in the world--the United States of America--to become that beacon of light for the world again.

N. W. Barber, Peoples, Principles, and Finality, 66 Am. J. Juris. 145 (2021)

The Principles of Constitutionalism examines the principles which speak to the construction and interaction of state institutions. This article responds to some criticisms of that book, in particular, those which question the universalizability of the principles, the relationship between state institutions and the people of the state, the place of democracy within constitutionalism, and the role of finality in state decision-making. It is argued that it is the link between the people and institutions, mediated by democracy, that both explains and justifies the state's claim to act as the final arbiter of the obligations of its people.

Raj Bhala, Hong Kong's Democracy, Human Rigths, and America's Trade Sanctions, 30 Kan. J. L. & Pub. Pol'y 307 (2021)

There is no systematic link in America's international trade law to human rights. While the U.S. includes provisions in its free trade agreements on labor rights, it does not - in contrast to the European Union - include human rights clauses in them. Only episodically, and in an ad hoc fashion, does the U.S. respond through its trade laws to human rights issues. One such instance has been American measures taken after China, effective 1 July 2020, imposed its National Security Law on Hong Kong. In this instance, the U.S. has indelibly linked its liberal capitalist values to its import-export measures. This article explores Hong Kong as a case study in the linkage by the U.S. of its trade policy to human rights. It argues that Hong Kong is a useful precedent on which the U.S. should build, indeed, lead. That is true even after the infamous events at the U.S. Capitol of 6 January 2021, a day on which America lost more of its innocence as a young, hopeful nation, and undermined its exceptionalism as a shining light. The rationale for the argument is self-evident. No systematic defense of democracy specifically, or human rights generally, is offered - or necessary. After all, plenty of such defenses have been made across the centuries. The tale of what happened in Hong Kong, both in fact and in law, provides all the rationale that should be necessary. Part II examines China's National Security Law and the essential legal developments that led up to it. Part III reviews the U.S. response to that Law, plus key developments in Hong Kong and Chinese views and counter-measures targeting America. Part IV suggests the U.S. response was correct, and a useful precedent on which to broaden and deepen the trade-human rights linkage, in what arguably is an Open Society War.

Raj Bhala & Eric Witmer, Interpreting Interpretation: Textual, Contextual, and Pragmatic Interpretative Methods for International Trade Law, 35 Conn. J. Int'l L. 58 (2020)

The conventional wisdom as to how the World Trade Organization (WTO) Appellate Body must interpret disputed terms in a treaty is incomplete, and even potentially misleading. The conventional wisdom says the Appellate Body is restricted to the tools provided by Articles 31-32 of the 1969 Vienna Convention on the Law of Treaties. The key tool is a mechanical, lexicographic hammer, namely, finding the plain meaning of a word or phrase at issue in a case between two WTO Members, with occasional recourse to surrounding passages, and if pressed, to the purpose of the treaty in which the disputed term is located. But those Articles amount to a larger tool kit than the conventional wisdom recognizes.

In truth, those Articles allow for three wide categories of techniques, Textualist, Contextualist, and Pragmatic, for interpretation. These techniques are rich, nuanced tools familiar in American Jurisprudence and English Literary Theory. A complete and transparent account of the tools the Appellate Body has at its disposal to make decisions should acknowledge this tripartite taxonomy, and thereby appreciate the intra- and inter-disciplinary nature of international trade treaty interpretation that, at least in theory, is possible.

Maria Cahill, Subsidiarity As the Preference for Proximity, 66 Am. J. Juris. 129 (2021)

This article reflects on subsidiarity as the preference for proximity. In doing so, it focuses both on the idea of the preference for proximity and the preference for proximity. The impetus for doing so is Nick Barber's book The Principles of Constitutionalism, which counts subsidiarity as one of six principles that a constitution should embrace, and which theorizes subsidiarity as a commitment to democracy. This article considers, in Part II, the implications of considering subsidiarity as a preference, and in particular the challenges that creates for the project of adopting subsidiarity as a constitutional principle. It goes on, in Part III, to explore the constitutional principle of subsidiarity proposed by Barber, highlighting unique features of this theory of subsidiarity and evaluating the extent to which, by focusing on subsidiarity as democratic commitment, Barber's theory provides a viable account of the preference for proximity.

Francisco Carpintero Benítez, The Fundamentals of Ethics, 84 IUS Gentium 171 (2020)

The foundations of morals is a complex topic. Today there is deso. The cause is rooted in theological discussions from the Late Middle Ages and onward. That discussion is centred in the opposition between Thomists and nominalists. Aquinas and his followers thought that practical norms were founded in teleological principles. Nominalists thought that norms were imperative: the key was the will of God, not the reason of the precept. At last, the winner was the nominalist way, and the idea of moral diffused in our culture was a system of imperatives. This legacy makes difficult to speak today about reason in ethics.

Isaac Conrad Herrera Sommers, Suffering for Her Faith: The Importance of an Intersectional Perspective on Gendered Religious Persecution in International Law, 61 Harv. Int'l L.J. 511 (2020)

Women around the world suffer from discriminatory treatment ranging from violent persecution to social differentiation. Likewise, religious people are routinely targeted because of their faith. Moreover, many women of faith have historically been and are still today subject to increased risk of harm or actually experience a greater level of targeted harm (as compared to non-religious women or religious men) because of the interplay between their religious and gender identities. Despite this, a number of the most prominent international legal institutions that deal directly with discrimination against women inadequately use intersectional language to refer to religious women. In fact, there is a notable gap in scholarship and legal documents specifically addressing the disparate impact of discrimination toward religious women and a tendency to treat religion more as a source of oppression than as a distinct identity. Although many international organizations and agreements address issues of gender and religious discrimination separately, human rights bodies need to do more to address the intersection of gendered religious discrimination. This Note is directed both at audiences who may be skeptical of or hostile toward intersectionality as a legal or policy framework, and at audiences who may support intersectionality but who are skeptical of or hostile toward religion. It addresses the importance of religious and gender identities and the ways those two identities are often inextricably linked. This Note highlights a variety of historical and contemporary examples of persecution of religious women through an intersectional perspective, evaluates the failings of various international human rights institutions to address gendered religious persecution, and proposes a variety of recommendations for such groups to more consistently employ intersectionality to advance the human rights of women of faith.

John M. Czarnetzky, The International Criminal Court and Catholic Social Doctrine. 1 Journal of Catholic Social Thought 6 (2019)

The International Criminal Court was the result of decades of postwar pressure to establish a permanent tribunal with jurisdiction over the most heinous crimes against humanity. Despite the noble goals of its architects, the ICC has not been effective in prosecuting such crimes. The author argues that the reasons for the Court’s ineffectiveness were apparent from its inception due to the flawed view of the human person and society that is at the foundation of the Court. Using the insights of Catholic Social Doctrine, this article dissects the erroneous social anthropology, which is the basis for the Court’s design, and suggests possible correctives based on a correct understanding of the human person and human society.

Rafael Domingo, and John Witte Jr, eds. Christianity and Global Law. Routledge, (2020)

This book explores both historical and contemporary Christian sources and dimensions of global law and includes critical perspectives from various religious and philosophical traditions. Two dozen leading scholars discuss the constituent principles of this new global legal order historically, comparatively, and currently. The first part uses a historical biographical approach to study a few of the major Christian architects of global law and transnational legal theory, from St. Paul to Jacques Maritain. The second part distills the deep Christian sources and dimensions of the main principles of global law, historically and today, separating out the distinct Catholic, Protestant, and Orthodox Christian contributions as appropriate. Finally, the authors address a number of pressing global issues and challenges, where a Christian-informed legal perspective can and should have deep purchase and influence. The work makes no claim that Christianity is the only historical shaper of global law, nor that it should monopolize the theory and practice of global law today. But the book does insist that Christianity, as one of the world’s great religions, has deep norms and practices, ideas and institutions, prophets and procedures that can be of benefit as the world struggles to find global legal resources to confront humanity’s greatest challenges. The volume will be an essential resource for academics and researchers working in the areas of law and religion, transnational law, legal philosophy, and legal history.

Ligia De Jesús Castaldi, Abortion in Latin America and the Caribbean: The Legal Impact of the American Convention on Human Rights, University of Notre Dame Press, (2020)

Abortion in Latin America and the Caribbean is the first major book to analyze the abortion laws of the Latin American and Caribbean nations that are parties to the American Convention on Human Rights. Making use of a broad range of materials relating to human rights and abortion law not yet available in English, the first part of this book analyzes how Inter-American human rights bodies have interpreted the American Convention’s prenatal right to life. The second part examines Article 4(1) of the American Convention, comparing and analyzing the laws regarding prenatal rights and abortion in all twenty-three nations that are parties to this treaty. Castaldi questions how Inter-American human rights bodies currently interpret Article 4(1). Against the predominant view, she argues that the purpose of this treaty is to grant legal protection of the unborn child from elective abortion that is broad and general, not merely exceptional.

Abortion in Latin America and the Caribbean offers an objective analysis of national and international laws on abortion, proposing a new interpretation of the American Convention’s right-to-life provision that is nonrestrictive and provides general protection for the unborn. The book will appeal not only to students and scholars in the field of international human rights but also to human rights advocates more generally.

Ligia De Jesús Castaldi, El caso Manuela y las 17+ contra El Salvador: Un fraude ante la Corte Interamericana de Derechos Humanos y la comunidad internacional, 17 Derecho Público Iberoamericano (2020)

En el artículo se analizan los hechos y el contexto político del caso “Manuela” ante la Corte IDH, que busca la despenalización del aborto voluntario en El Salvador. También se examinan los hechos y contexto de la petición presentada ante la CIDH sobre los casos de nueve mujeres condenadas por el homicidio agravado de sus hijos recién nacidos en El Salvador. La demanda de la CIDH ante la Corte, al igual que la petición, acusa a El Salvador de violar derechos humanos contenidos en la Convención Americana sobre Derechos Humanos por la supuesta penalización de abortos involuntarios y emergencias obstétricas en el país. Asimismo, se analiza la veracidad de los argumentos presentados en esta denuncia sobre la base de la evidencia existente en el expediente judicial y documentación oficial del caso “Manuela” y de los casos de “Las 17+”, incluyendo sentencias de cortes de primera instancia, escritos y solicitudes [...].

Ligia De Jesús Castaldi, El fallo Artavia de la Corte Interamericana de Derechos Humanos en su décimo aniversario: algunas reflexiones sobre el “Roe v. Wade latinoamericano” 94 Prudentia Iuris (2022)

En el fallo Artavia vs. Costa Rica, la Corte Interamericana de Derechos Humanos citó el fallo Roe v. Wade de la Corte Suprema de Estados Unidos en apoyo de su razonamiento a favor de la reproducción asistida y al aborto provocado. Esta nota examina el posible efecto de la derogación del fallo Roe en el razonamiento del Caso Artavia, y la analogía entre el fallo Artavia y el Roe v. Wade norteamericano. La nota analiza, a la vez, el alcance y la validez legal del fallo Artavia en el contexto de la jurisprudencia de la Corte Interamericana de Derechos Humanos.

Ligia De Jesús Castaldi & Antony B. Kolenc, Brief of 137 International Legal Scholars As Amici Curiae in Support of Petitioners in Dobbs v. Jackson Women's Health Organization, 20 Ave Maria L. Rev. 1 (2022)

Amici curiae consist of 137 international legal scholars, including former judges and justice officials, deans of law schools, and law professors and law scholars. A full identification of each amicus appears in the Appendix.

Amici assert the inherent right to life of the unborn and recognize Mississippi's interest in limiting access to abortion on demand. Amici are concerned with preserving the principle of state-level freedom to tailor abortion regulations.

Amici believe it is beneficial for the Court to take into consideration the international legal context, including how a decision of the Court might be understood in relation to other State practices.

Amici write to inform the Court that there is no international human right to abortion, and that international law is predicated on an understanding of the unborn child as a rights-holder. They also seek to inform the Court about the existence of a general standard of international practice among the minority of States that allow elective abortion, limiting abortion on demand to pregnancies of twelve weeks' gestation.

Luciano Eusebi, Build and Restore Good Human Relationships. Overcoming the Retributive Paradigm As A Key Issue for the Theory of Justice, 84 IUS Gentium 213 (2020)

The paper assumes as a central ethical necessity of our time the farewell to a model of justice based on mutual behaviours correspondence: according to which it's just that the negative judgment towards the other is followed by the action against him, that is to say in order to overwhelming him. This, in fact, has led to theorize the logic of conflict as natural in human affairs: for which every duality implies an opposition. Now, however, this logic entails the risk of total destruction. The aim of the paper is, therefore, to highlight how different sectors of human relationships (between people, parties or States) remain largely marked out by a retributive model of justice. It's proposed a vision of justice intended as building and restoring the good in the face of evil, which can give rise to good life conditions and relationships between all involved subjects.

John D. Feerick, Dennis James Kenny - My Friend, 45 Fordham Int'l L.J. 269 (2021)

Dennis was unlike any other friend I have known, a friendship that grew and grew since its inception. As Shakespeare observed through the voice of a father as he sends his son off into the world: “the friends thou hast, and their adoption tried, grapple them to thy *274 soul with hooks of steel.” I was blessed to enjoy such a friendship with Dennis Kenny, a companion through life for more than sixty years. May he rest in peace, in the blessings promised by his faith, and may “flights of angels sing [him to his] rest.”

Kevin H. Govern, Direct Action and Expediency: The Killing of Qassem Soleimani, 8 Indon. J. Int'l & Comp. L.55 (2021)

This article examines the notion of national security decisions by the U.S. and its allies over the with a notion of expediency complicating intelligence, legal, and operational decision-making: was killing General Soleimani a legitimate military objective? In conclusion, the author offers a past-is-prologue commentary on how and why expediency can and should be avoided in future national security decision-making.

Kevin H. Govern, Licit War Trophies As A Means of Preserving Art and Culture in Times of War, 20 Ave Maria L. Rev. 51 (2022)

Effective and enforced war trophies laws and policies protect property, cultural or otherwise, and proscribe any temptation by the average service member to improperly pursue a “to the victor belong the spoils” approach to their sworn responsibilities to conduct themselves in accordance with law and custom. Which ethical, competent defense counsel would ever raise the specious and unethical legal defense that “until the war is over, anything's legal,” notwithstanding political rhetoric?

The promulgating and enforcing of a limited “war trophies” policy has the goal of recommending precedent and policy for service members serving in time of war or armed conflict. A modest and sensible war trophy policy has a practical impact in allowing personal mementos with little more than sentimental value and minimal utility to be retained by soldiers from their time of service, without depriving private citizens of their possessions nor (former) adversary governments or entities of their ability to provide continuity of government. Aside from academics advancing adherence to IHL, most importantly, military members will be aided in exercising their discernment when called upon in missions to destroy--or protect--public and private property, as well as cultural advisors, especially Civil Affairs and Civil-Military Operations experts, and Judge Advocates, the advisors and guardians of protected persons and things.

Peter Y. Kim, In, from, and to Space: Safeguarding the United States of America and Her Interests, 42 U. Pa. J. Int'l L. 1157 (2021)

This Comment serendipitously pays homage to Professor Bin Cheng's Studies in International Space Law, by re-examining topics covered in his trailblazing work and by exploring how the United States Space Force may exist under current international law. Although military use of outer space is limited by international treaties and customary law, the United States of America must be prepared to protect her interests from future threats. Cue the Space Force, which will need to navigate a novel theater of war and anticipate legal consequences under space law, the law of war, and the law of the sea. Using the present legal framework is only the beginning, as only time will tell how space warfare will unfold.

Yuri G. Mantilla, Francisco De Vitora's Normatve Ideas and the Beginnings of International Law: A Colonial Ethnocentric Discourse, or A Bona Fide Effort to Construct Just International Norms?, 44 Loy. L.A. Int'l & Comp. L. Rev. 43 (2021)

Vitoria recognized the source of civil power in the commonwealth and not in ecclesiastical authority. Consistent with that belief, “infidel” nations, such as the Inca, could have had legitimate political communities. Unlike medieval authors, who rejected the existence of political communities in “infidel” nations because of their sinfulness and unbelief in Christianity, Vitoria accepted the existence of dominion (dominium) and civil power (potestate civili) in non-Christian nations. In his commentaries on Aquinas' Summa theologiae, he recognized the internal sovereignty of indigenous nations by indicating that Christian sovereigns were not superior to indigenous ones, and that their territories could not be taken away.³⁹² In his letter to Miguel Arcos, Vitoria equated the Inca Empire with Castile and Aragon. Those political communities were part of Spain, but they had a limited external sovereignty.³⁹³

If Francisco de Vitoria's ideas are the starting point of international law, there is not a colonial ethnocentric origin of this discipline. Despite the contradictions and limitations of Vitoria's international legal doctrines, his international legal ideas were a bona fide effort to promote just international norms. This was done within the limits of Vitoria's 16th century Spanish intellectual-historical context and within his limited knowledge about the indigenous nations of the New World.

Yuri Mantilla, Indigenous Peoples' Diplomacy, Mediation, and Conciliation As A Response to the I.C.J. Decision in the Obligation to Negotiate Access to the Pacific Ocean Case, 51 Cal. W. Int'l L.J. 29 (2020)

The Article analyzes the International Court of Justice's decision in the Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile) case and its failure to provide an original and effective legal solution to an important territorial dispute in Latin America. As a response to this, this Article makes the case for the engagement of other institutions and actors including the Secretary General of the United Nations, the Organization of American States, and Pope Francis, who could facilitate mediation processes for the resolution of this international conflict. This Article considers historical facts that demonstrate the intention of the parties to find a negotiated solution to their territorial dispute. It makes the case for using mediation and conciliation, for the resolution of the conflict, and makes arguments against power politics and the use of military force as instruments for the resolution of the territorial dispute. Moreover, this Article demonstrates that the people of Bolivia and Chile can find a mutually beneficial solution to their dispute by creating, among others, civil *30 society reconciliation commissions with the leading participation of indigenous people. Finally, this Article makes the case for indigenous peoples, as the original owners of the territory under dispute, to become essential actors in the process of resolving the conflict.

Yuri Mantilla, The Language of International Human Rights Law As A Foundation for the Prevention, and Peaceful Resolution of Ethnic, and Political Conflicts in Bolivia, 32 Pace Int'l L. Rev. 171 (2020)

Considering the complexity of the Bolivian crisis, there is a need to establish systematic reconciliation and mediation processes to preserve a peaceful coexistence between diverse ethnic groups. The mediation efforts of the U.N., the E.U., and the Catholic Church should serve as an example of the effectiveness and importance of the role of neutral parties in contributing to the resolution of ethnic and political conflicts.³⁵³ The Bolivian people should establish and sustain a powerful movement of mediators and conciliators that systematically focus on efforts for the prevention and peaceful resolution of ethnic conflicts. The international community should support those efforts. However, it is up to Bolivians; Bolivia's political leaders; political parties; civil society organizations; social movements; and media networks, among others, to ensure the success of a culture of national reconciliation that recognizes the importance of respect for human dignity as the foundation for their peaceful coexistence.

Aniceto Masferrer, Criminal Law and Morality Revisited: Interdisciplinary Perspectives, 84 IUS Gentium 1 (2020)

The relationship between morality and criminal law must constantly evolve to meet the needs of changing times and circumstances. Social changes and new situations require new answers. This chapter will take the famous ‘Wolfenden Report’ (1957) as a starting point for reviewing the interaction of criminal law and morality, in the context of the broader relationship between politics, law and morality. Moral laws and civil laws have different limits and practical purposes, as is made clear in the writings of Aristotle, Thomas Aquinas and Spanish scholastics such as Francisco de Vitoria, Domingo de Soto and Francisco Suárez. Modern philosophers such as Descartes, Hobbes, Rousseau, Kant, and Mill also raise important issues concerning the relation between law and morality. This chapter will draw the line between and explain the inescaple connections between criminal law and morality.

Aniceto Masferrer, The Role of Nature in the Secularization of Criminal Law in Europe (17th-19th Centuries) the Criminal Law of the Enlightenment Revisited, 84 IUS Gentium 97 (2020)

Some authors have argued that enlightenment authors endorsed a social contract that was not compatible with the existence of laws of nature or a moral foundation for criminal law, while nineteenth-century liberal criminal lawyers founded criminal law upon a natural law theory, based on divine commands. This chapter demonstrates on the contrary that enlightenment authors did not necessarily make a sharp distinction between morality and criminal law, nor did 19th-century criminal lawyers adopted a conception of criminal law that was too heavily dependent on morality, as it was defended by medieval and early-modern-age scholars. The traditional dichotomy between enlightened thinkers and traditional criminal lawyers does not apply well to nineteenth-century Spain and France.

Christopher McCrudden, Indirect Religious Discrimination: Resisting the Temptations of Premature Normative Theorization, 34 Harv. Hum. Rts. J. 249 (2021)

Several jurisdictions appear to be grappling with the concept of indirect religious discrimination at an increased rate. The concept connects intriguingly to the concept of freedom of religion in a way that some legal practitioners describe as familial. Additionally, scholars contest its normative foundations. This Essay focuses on legal measures addressing indirect religious discrimination and seeks to cast some light on each of these issues, particularly the concept's normative foundations. In doing so, the Essay highlights the experience of the development and use of indirect religious discrimination in several European jurisdictions: The United Kingdom--including Northern Ireland, which adopts a somewhat different legal position--France, the European Union, and the European Court of Human Rights (“ECtHR”). The use of indirect religious discrimination beyond these and other European jurisdictions is not addressed in any detail, and international human rights law, except the European Convention on Human Rights (“ECHR”), is not considered. Drawing from these diverse sources, this Essay argues that a convincing general normative theory of indirect religious discrimination law--one which seeks to reflect current legal practice rather than supplant it--is premature in its present state of development.

Carlos Alberto Molinaro & Regina Linden Ruaro, Privacy Protection with Regard to (Tele-)communications Surveillance and Data Retention, 96 IUS Gentium 113 (2022)

Law 12.965/2014 established the so-called Civil Framework for the Internet. The principles of the law, especially the guarantee of net neutrality, freedom of expression and privacy of users, have been established to maintain the openness of the Internet. However, the Civil Framework for the Internet does not close the debate on the Brazilian Internet regulation. Privacy and the protection of personal data, for example, are protected by the General Law for the Protection of Personal Data (LGPDP), Law 13.709 of August 14, 2018. In its Article 60, this Law amends Law 12.965, of April 23, 2014, regarding the right of definitive deletion of personal data, as well as the prohibition of storage of personal data which are excessive in relation to the purpose for which the data subject has given consent. The Brazilian Civil Framework for the Internet establishes general principles, rights, and obligations for the use of the Internet, as well as some relevant provisions on storage, use, treatment and dissemination of data collected online. In addition, its Regulatory Act (Decree 8.771/2016) brought the first legal definition of personal data in its Article 14, letters A and B. Other aspects of data privacy are still governed by general principles and provisions on data protection and confidentiality in the Federal Constitution, in the Brazilian Civil Code and in laws and regulations for other fields and types of relationships (for example, financial institutions, health, consumers, telecommunications or medical sector). This text studies the issues of privacy, data protection, and their retention, given the rules of the Brazilian legal system, as established in the Civil Framework of the Internet, following the general normative order. The methodology uses bibliographic research in national and foreign doctrine, as well as legislation *114 and legal issues on what is pertinent to the subject and, to a lesser extent, for the intended objectives.

David Morrison & Patrick T. Quirk, An Australian Conundrum: Genomic Technology, Data, and the Covidsafe App, 33 Pace Int'l L. Rev. 43 (2020)

In the event of a pandemic, we posit that there lies a difficult balance for governments between liberty on the one hand, and prospects of survival on the other; with respect to the latter, apparently lies the question on how to achieve it, without giving up too much prosperity in the process. It is a complex and difficult decision for a government because it involves an inevitable compromise of factors such as privacy, data security, ethical considerations, and safety that conflate the ideological differences between the rights of the individual on the one hand, and the whole-of-society on the other. The Australian COVIDSafe app is an example of the difficulties associated with dealing with a complex and evolving pandemic. While there is no apparent solution as to how to best deal with a crisis that changes often and quickly, it at least seems apparent that where digital options--such as an app--are available and, where those options might be used for the immediate and beneficial societal health improvement and protection, governments might find opt-out determinations more immediately useful. That being so, then the fallout from the use of the opt-out option can be altered, eased, or removed when the health crisis is averted. When and for whom this is the most appropriate course of action is a matter, at least in Western countries, for their democratically elected leaders.

Dr. Obiajulu Nnamuchi, Nigeria's Same Sex Marriage (Prohibition) Act and Threat of Sanctions by Western Countries: A Legitimate Case of Human Rights Advancement or What?, 25 Sw. J. Int'l L. 120 (2019)

Political posturing and grandstanding aside, no international human rights instruments exist--not a single legal framework--that accord human rights recognition to homosexual or same-sex marriage. The closest the global community has ever come to recognizing this genre of interest as a human right is the adoption by a human rights group of the Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity. Significantly, since this adoption in 2006, the United Nations has not come forth to project the Yogyakarta Principles as setting a universal human rights standard. Regardless, international law does not prohibit individual States from elevating homosexual marriage or any other contentious human rights claim to the status of a right within their respective domestic realms as part of legitimate exercise of national sovereignty. But there is no principle of international law which entitles these same States to compel other nations to accept their own municipal interpretations of, or ideas about, sexual “rights.” Therefore, attempts by these States to impose sanctions on, or otherwise denounce, those nations whose worldview regarding homosexuality is irreconcilably at odds with theirs, is a violation of the human rights of the people in the maligned nations to self-determination - the right to conduct their affairs in accordance with the dictates of their own value system.

Jordan Paul, Deliver Us from Evil: Domestic and International Solutions to Clerical Sex Abuse, 36 Ariz. J. Int'l & Comp. L. 501 (2019)

For decades, the Catholic Church has used a complex web of priest-shifting, destruction of documents, and doctrine to cover-up countless crimes committed against the world's most vulnerable population. Although action should have been taken long ago, that is not an excuse to continue on the path of inaction. Already, there are signs of change, from multiple investigations worldwide to the prosecution of high-ranking officials for their roles in the abuse. This is not enough. Everyone in the Church who has ever abused a child or covered for someone who did must face their crimes and be brought to justice for their actions. When the Church ratified the Convention on the Rights of the Child, it quoted Pope John Paul II in its signing declaration, writing that children are a “precious treasure given to each generation.”²⁸⁰ It is time for the world, and the Church, to live up to those words.

Andrea Pin and John Witte, Jr., Meet the New Boss of Religious Freedom: The New Cases of the Court of Justice of the European Union, 55 Tex Int'l L. J. 223 (2020)

This Article analyzes how and why the Court of Justice of the European Union is rapidly becoming an important new forum for European religious freedom and threatening to eclipse the better-known European Court of Human Rights. Before 2017, the Court of Justice was largely silent on religious freedom, and it did little to implement the new religious freedom guarantees of the 2010 EU Charter of Fundamental Rights. Since 2017, however, this Court has issued landmark rulings on the rights and limits on Muslim employees to wear religious headscarves in the workplace and the rights of employers to make religious affiliation and conformity a prerequisite for employment or a basis for differential treatment of employees. The Court has balanced the rights of religious groups to continue ritual slaughtering with the growing concerns for animal wellbeing and organic food preparation. The Court has addressed hard questions of tax exemption and other state aid for religious schools; the rights and limits of refugees alleging religious persecution at home; the limits on state recognition of religious divorces; and the limits that privacy laws impose on Jehovah's Witnesses. And the Court has begun to question longstanding religion-state arrangements in selected countries, including those establishing or favoring traditional forms of Christianity. Unlike the European Court of Human Rights in Strasbourg, which mostly relies on voluntary compliance by the individual State found in violation on the European Convention on Human Rights, the European Court of Justice produces cases that immediately bind all EU Member States and automatically preempt conflicting local laws. Moreover, local state courts regularly seek advisory opinions from this European Court on prevailing EU law before resolving local cases before them. This makes appeal to binding EU law more attractive for local litigants, religious freedom advocates ever more prominently amongst them. If present case trends continue, the world might well be watching the birth of an integrated European law of religious freedom; however, that birth could unsettle longstanding local traditions of church-state relationships and leave insular religious minorities, particularly Muslims, with little religious freedom protection.

Grégor Puppinck, Mi Deseo Es La Ley;Los Derechos Del Hombre Sin Naturaleza. Ediciones Encuentro (2020)

Setenta años después de su Declaración universal, los derechos humanos se han convertido en una filosofía universal que expresa una concepción determinada del hombre y que, a través de una tupida red de instituciones, impone una moral centrada en los derechos individuales. Este libro aborda en profundidad la transformación habida en la concepción del hombre en virtud de la evolución actual y futura de los derechos humanos. Para ello compara la intención original de los redactores de la Declaración universal, tal como aparece en los archivos de 1948, con la interpretación evolutiva que han hecho de ellos posteriormente las instancias internacionales. Se habría pasado así, en las últimas décadas, de los «derechos humanos» a los «derechos del individuo», siendo la última estación de este viaje el paso a los «derechos transhumanos», actualmente en formación. «El análisis de la evolución de los derechos humanos permite observar con objetividad la evolución de la idea que se hacen del hombre las diferentes instancias internacionales, que no es poca cosa. (...) Esta evolución atestigua una transformación profunda de la concepción de dignidad humana que tiende a ser reducida exclusivamente a la voluntad individual, o al espíritu por oposición al cuerpo, que considera toda negación de la naturaleza y de sus condicionamientos como una liberación y un progreso».

Patrick T. Quirk, Protecting Religious Freedom and Conscience: What Australia Might Learn from Germany, 43 Fordham Int'l L.J. 163 (2019)

As Denise Meyerson has noted, “the formal protections afforded religious freedom under Australian law are relatively weak-- particularly when compared to many other liberal democracies.”²⁴⁰ By contrast, Germany has constitutionalized protections for religion and conscience, which have been litigated seriously and at length over many decades since the end of World War II and most recently in the crucifix and headscarf cases. The recent Australian court cases dealing with these issues are grounded in the law of process, evidence, and courtroom demeanor and are bubbling up toward an as yet non-existent all-encompassing set of principles, upon which coherent judicial norms for freedom of conscience at a constitutional - or at least a national - level can be based. These principles will not appear out of thin air but must be deliberated and decided in the light of present irregularities. The German constitutional guarantees, together with their judicial interpretations, provide a valuable model for this and will repay thoughtful and disciplined consideration by Australian policymakers and judges alike.

Maurizio Ragazzi, Priests, Lawyers, and Scholars: Essays in Honor of Robert J. Araujo, S.J., 182 LAW & Just. - Christian L. REV. 65 (2019).

Robert J. Araujo, SJ (1948-2015), was himself a priest, a lawyer, and a scholar and a memorable one in all these three vocations. It is therefore entirely appropriate that Stefanus Hendrianto, a fellow Jesuit from the United States West province, should call upon priests, lawyers, and scholars, whether disciples, friends, or admirers of the honouree, to contribute to this fine collection of essays in his memory.

Manuel Rodríguez Puerto, Liberties, Rights and Punishments in Modern Natural Law, 84 IUS Gentium 45 (2020)

The aim of this chapter is to show the intersection of law and moral in criminal law from the point of view of legal theory in early Modernity. To understand this question, the chapter treats succintly the concepts of law, crime and moral good in the legal science of ius commune; this conception was based on an objectivized notion of justice; consequently, criminal law was conceived as a protection of basic moral goods. Legal theory of early modernity (centered here in the Modern School of Natural Law) described the law as a natural bundle of individual liberties. The legal order is designed to protect that freedom and, specifically, the aim of criminal law was to protect basic individual freedoms. Modern thought distinguished theological goods from legal principles, but the intention was the protection of the most important moral good: the individual freedom.

Ronald J. Rychlak, FISA Commentary Series Disinformation in Crossfire Hurricane. 7 Nat'l Sec. L. J. 1 (2020-2021)

The December 9, 2019, Crossfire Hurricane DOJOIG Report marks the most publicly visible controversy in the forty-year history of the FISA statute. It also represents a potential trap for well-meaning policymakers: sometimes "the road to hell is paved with good intentions. "In contemplating FISA reform, past non-partisan FISA policy disputes within the DOJ specifically those concerning internal FISA review mechanisms designed to ensure compliance with the statute-demand attention. These past disputes show that the FISA framework has proven unusually reactive to pressure or sudden policy shifts; and when the FISA framework has been destabilized, this has compromised U.S. national security. Policymakers newly concerned about FISA misuse might reasonably envision a "pendulum" analogy whereby FISA restrictiveness and permissiveness have fluctuated over time depending on national priorities. Accordingly, twenty years after the 9/11 attacks, it might seem theoretically desirable to consider reinstating (or partially reinstating) past FISA order review policies from when the framework was most restrictive. However, the compliance regime during this period between 1995 and 2001, featuring a "Wall" between federal prosecutors and investigators conducting FISA surveillance, was flawed both legally and practically,; it contributed to the 9/11 intelligence failures. Reinitiating the Wall policies is not an option. Hence, policymakers aspiring to amplify judicial review of FISA orders appear to face the task of constructing wholly new safeguards. The national security surveillance mechanism hangs in the balance. A potential (partial) remedy, favored by national security lawyers, is a "Super IG"FISA oversight system, which would facilitate FISA scrutiny without delaying or impeding the process.

Francesco Seatzu, Extraditing Persons from Italy to Vatican City: Chimera or Real Possibility?, 32 Ind. Int'l & Comp. L. Rev. 515 (2022)

In the course of the last year Italy was confronted with the unusual request from the Vatican City to extradite an Italian national to face charges of embezzlement and misappropriation of Holy See funds. The Holy See requested the extradition of Cecilia Marogna, a self-described intelligence analyst and private spy from Sardinia, who worked for Cardinal Angelo Becciu, a senior Vatican official who was demoted over embezzlement claims. The case has received considerable press coverage and attention through print and online media worldwide, not least because of its numerous twists and turns such as the arrest of Marogna in Milan on an Interpol warrant issued at the Holy See's request, the sudden drop of the extradition request by the Vatican authorities, and Italy's highest court ruling that Cecilia Marogna never should have been arrested before a court evaluated whether she could be extradited. The aim of this Article is to explore whether the extradition of an Italian national, from Italy to the Vatican, unlike what has been claimed by Marogna's defense lawyers and implicitly accepted by the Vatican authorities that dropped the extradition request, is instead possible. The thesis defends this possibility regardless of the absence of a bilateral extradition treaty between Italy and the Vatican and of an ad hoc extradition agreement between Italy and the Holy See. But this is only provided that the request for extradition *516 concerns an Italian citizen convicted or accused of corruption-related crimes like Cecilia Marogna. This Article will proceed as follows: after an introduction, Section 1 will discuss and reject an argument that infers a prohibition of extradition from Italy to the Vatican from the wording of Article 22 of the Lateran Treaty of 1929. Sections 2 and 3 will consider and exclude that an obstacle to extradition from Vatican City to Italy may be inferred from the poor quality of the criminal justice system in Vatican City or from the authoritarian character of the Vatican's internal legal order that is only presumed but not demonstrated. Finally, Section 4 will claim and argue that a proper duty to extradite persons not only from the Vatican to Italy but also from Italy to the Vatican should be inferred from Articles 43 to 49 of the United Nations Convention against Corruption (UNAC) of which both Italy and the Vatican City/Holy See are bound as contracting parties.

Steven W. Teppler, Eric Hibbard, Iso Publishes the Electronic Discovery Standard, 20 Ave Maria L. Rev. 160 (2022)

With the publication of the four parts of the ISO/IEC 27050 standard, SC 27 has concluded its work on electronic discovery. Assuming the typical five-year revision cycle employed by ISO, none of the parts will be subject to a systematic review until late 2023 (i.e., earliest opportunity to consider a revision). The most likely candidate for revision is Part 4 because of its focus on ICT as well as having dependencies on other SC 27 standards like ISO/IEC 27040, which is currently undergoing revision.

ISO/IEC 27050 is expected to help the international community better understand electronic discovery and to set basic expectations as to what is involved. It has been carefully written to avoid conflicts with jurisdictions that *182 have an electronic discover schemes or inadvertently introducing electronic discovery into jurisdictions that have no such process.

U.S. parties interested in acquiring copies of ISO/IEC 27050 can purchase them from the ISO Store⁹⁴ or from the ANSI Store⁹⁵ with a substantial discount.

Michael Arthur Vacca, Esq., A Light to the Nations: Why Hungary's Constitutional Protection for Natural Marriage Between A Man and A Woman Accords with International and European Laws, 26 ILSA J. Int'l & Comp. L. 101 (2019)

It should not be assumed that Hungary's legal recognition of marriage as the union of a man and a woman involves any moral judgment against single parents or homosexual couples that raise children. Hungary is simply recognizing that marriage between a child's mother and father is best for that child. This recognition is not an attack on single parents who may be forced to make heroic sacrifices for the sake of their children, nor is it an affirmation that homosexual couples raising children do not love them. But regardless of the fact that there are loving parents who live with children outside of married two parent families, Hungary may exercise its sovereignty by affording unique legal protection to marriage between a man and a woman because there is no international or European law which forbids Hungary's legal preference for marriage as the union of a man and a woman. In fact, the objective reality that married two parent families are best for the wellbeing of children substantiates that Hungary's exercise of national sovereignty is directed towards the wellbeing of its people, especially its children.

Michael Arthur Vacca, J.D., Education and Religious Freedom in the Toledo Guiding Principles: A Comparative Analysis Between the Holy See and the United States, 36 Ariz. J. Int'l & Comp. L. 111 (2019)

The approach of the Holy See to the Toledo Guiding Principles is similar in certain respects to the approach of the United States toward the Principles. By recognizing the role of parents in educating their children and connecting education to human persons, the Holy See and the United States serve as models for improving the Principles. However, regarding the role of religion in public schools, the Holy See does not have the assistance of the United States in promoting a closer interaction between religious groups and public educators. Hopefully, through cooperation between the Holy See and the United States, to the extent that such cooperation furthers the mission of each sovereign, the Toledo Guiding Principles can be reformed and make a real contribution to the flourishing of the human family.

George S. Yacoubian, Jr., Ph.D., LL.M., S.J.D., Deinstitutionalization, Family Reunification, and the "Best Interests of the Child": An Examination of Armenia's Child Protection Obligations Under Conventional International Law, 33 Pace Int'l L. Rev. 151 (2021)

For nearly a century, the global community has sought to afford children legal protections, abandoning widely held views that children were pecuniary assets. In the United States and globally, a nascent children's rights movement culminated in broad child welfare reform. Whether adoption, armed conflict, child labor, education, human trafficking, or deinstitutionalization, the post-war 20^th century witnessed an evolution of international child protections. The prevailing standard of “best interests of the child” (BIC) has been incorporated into domestic and international law doctrine and, not surprisingly, has been operationalized in a variety of ways. In recent years, the standard has been explored in the context of residential care institutions. Some advocates of deinstitutionalization assert that children should be reunified with biological relatives under all circumstances. Absolutes, however, are legally precarious and may be practically inconsistent with the BIC standard that practitioners and policymakers are required to acquiesce. In the current essay, the history of international child protection legislation is explored, and the BIC standard is assessed in the context of Armenia's social system. I evaluate Armenia's child protection obligations and conclude that the BIC standard may not always trigger deinstitutionalization and family reunification. Implications for international human rights law and the global child protection movement are assessed.

María del Pilar Zambrano, et al. Unborn Human Life and Fundamental Rights : Leading Constitutional Cases Under Scrutiny. Peter Lang (2019)

This book presents a collection of studies by top scholars on leading cases from twelve different jurisdictions defining the legal status of unborn human life. The cases under study pertain to three distinctive cultural and constitutional systems: Latin American Constitutional Courts and the Inter-American Court of Human Rights, European Constitutional Courts and the European Court on Human Rights, as well as Common Law jurisdictions. With a special conclusion by Professor John Finnis, drawing together the many treads of the individual chapters into a comprehensive whole, this book lays the basis for further comparative study of the legal and moral reasoning underlying judicial decisions which either recognize or deny legal personhood and/or equal dignity to unborn human beings.

Alberto L. Zuppi, Acting As Private Prosecutor in the Amia Case, 26 Sw. J. Int'l L. 83 (2020)

When considering, generally, the lack of proper investigation and oversight of the AMIA case by the Argentine system, it is not surprising that the death of Nisman has yet to be resolved. If the AMIA case can be offered as an example of disgraceful investigation, Nisman's murder clearly presses the issue to new limits. A horde of policemen, firemen, and supposed investigators arrived at the crime scene without any procedures to prevent the contamination of evidence. They walked all over the carpeted apartment, stood in a pool of blood, cleaned the gun, and handled objects without gloves. They completely destroyed the crime scene.¹³³ Similar to the failed investigation of the AMIA bombing, *122 one can assume that the failed investigation of Nisman's death was the result of pure negligence, or perhaps something more sordid than appearances suggest. Let us hope that Nisman's case will receive, at the very least, a Private Prosecutor fit to handle the task. Further, let us hope that we learned at least one thing from the AMIA case, of how the criminal system can truly benefit with active participation from the victims and their representatives in an investigation.¹³⁴

John P. Beal, There Are More Things in Heaven and Earth than Are Dealt with in Your Code: The Relevance of Social Science for Canon Law, 77 Jurist 25 (2021)

Diocesan structures have been much in the spotlight during the past year as Catholics and non-Catholics alike have tried to make sense of the breakdown in ecclesiastical discipline evident in the report of sexual abuse of minors and its alleged cover-up from a Pennsylvania grand jury and in the rise and fall of Theodore McCarrick. These and other related revelations have prompted scholars and ordinary faithful to want to understand "more about how the institution works, not how it's supposed to work, but how it is and how it has worked in history." Perhaps a look at the history of the evolution of diocesan structures in the United States and the social dynamics of hierarchically organized organizations can be helpful.

Maria Cahill, Subsidiarity As the Preference for Proximity, 66 Am. J. Juris. 129 (2021)

This article reflects on subsidiarity as the preference for proximity. In doing so, it focuses both on the idea of the preference for proximity and the preference for proximity. The impetus for doing so is Nick Barber's book The Principles of Constitutionalism, which counts subsidiarity as one of six principles that a constitution should embrace, and which theorizes subsidiarity as a commitment to democracy. This article considers, in Part II, the implications of considering subsidiarity as a preference, and in particular the challenges that creates for the project of adopting subsidiarity as a constitutional principle. It goes on, in Part III, to explore the constitutional principle of subsidiarity proposed by Barber, highlighting unique features of this theory of subsidiarity and evaluating the extent to which, by focusing on subsidiarity as democratic commitment, Barber's theory provides a viable account of the preference for proximity.

Luciano Eusebi, Build and Restore Good Human Relationships. Overcoming the Retributive Paradigm As A Key Issue for the Theory of Justice, 84 IUS Gentium 213 (2020)

The paper assumes as a central ethical necessity of our time the farewell to a model of justice based on mutual behaviours correspondence: according to which it's just that the negative judgment towards the other is followed by the action against him, that is to say in order to overwhelming him. This, in fact, has led to theorize the logic of conflict as natural in human affairs: for which every duality implies an opposition. Now, however, this logic entails the risk of total destruction. The aim of the paper is, therefore, to highlight how different sectors of human relationships (between people, parties or States) remain largely marked out by a retributive model of justice. It's proposed a vision of justice intended as building and restoring the good in the face of evil, which can give rise to good life conditions and relationships between all involved subjects.

Alexander Hamilton, The Path Less Traveled: A Natural Law Critique of Justice Holmes' Path of the Law, 69 Cath. U. L. Rev. 741 (2020)

There are many paths one can follow in the law. These paths can either be made or followed. Here only two are examined: natural law jurisprudence, which is followed, and that of Justice Oliver Wendell Holmes, Jr., which was created. Justice Holmes was a pioneer of American law, clearing the forest for generations of legal scholars, lawyers, and judges to come. He is often heralded as the greatest American legal scholar, and he heavily influenced the legal realism movement and the course of American law. Needless to say, Holmes' influence could be felt throughout the twentieth century and is still felt even today.

Stefanus Hendrianto,The Last Testament of Justice Scalia: On Aquinas and Law, 34 Notre Dame J.L. Ethics & Pub. Pol'y 197 (2020) 

On January 7, 2016, Justice Antonin Scalia delivered his last public lecture, titled Saint Thomas Aquinas and Law. Analysts have criticized Scalia for having an anachronistic reading of Aquinas. But those analysts had missed seeing that Scalia was searching for a deeper meaning instead of chastising Aquinas's theory of law. This Article investigates whether Aquinas's theological insights and Scalia's jurisprudence show similar traits. This Article argues that although Scalia's jurisprudence is not identical with Aquinas's theology, their positions are much closer than people would immediately imagine. They shared similar views on the limits of judicial authority and the need to find a balance between the private goods and the common good. This Article postulates that in his last lecture, Scalia was expressing his fear of subjectivity in the process of judging, in which Aquinas theory of interpretation might justify the volitional status of legal interpretation. Nevertheless, Aquinas believed that a virtuous judge must not seek honor and glory, but rather to direct people toward the common good. Thus, both Aquinas and Scalia shared a similar view that a reasonable judge must avoid sentimentality and personal values in judging.

John Paul Kimes, Reclaiming "Pastoral": Pascite Gregem Dei and Its Vision of Penal Law, 77 Jurist 269 (2021)

Rather than examine in detail the changes promulgated on the solemnity of Pentecost in 2021, this article will treat some of the themes found in the apostolic constitution Pascite gregem Dei, and point to some linguistic modifications in the new Liber VI that can be traced directly to the vision of the munus pastorale Episcopi of Pope Francis.

Andrew J. Koehler, "No Right Is More Precious": Common Good Solutions to Ballot Access Jurisprudence, 20 Ave Maria L. Rev. 260 (2022)

The Supreme Court attempted to address ballot access issues against the backdrop of the volatile socio-political environment of the 1968 presidential election.³⁰⁷ And now, for the last thirty years, the Supreme Court has denied every certiorari petition filed by a minor or independent candidate.³⁰⁸ The Court has not just the authority but an emphatic duty to say what the law is.³⁰⁹ *295 Our modern socio-political climate of confusion and division demonstrates that it is time that the Supreme Court went back to the table to again say what the law is. This time, it ought to do so with common good principles, in favor of independent and minor party candidates for public office.

Michael Plaxton, Subsidiarity and the Criminal Jury, 67 Am. J. Juris. 33 (2022)

The institution of trial-by-jury is a puzzle in the modern criminal justice system. It has dubious merits as a mechanism for applying facts to law. If anything, it represents a challenge to the very idea that decision-making should be consistent and transparent. Yet the emphasis on the relative ineffectiveness and inefficiency of the jury as a trier of fact may miss the point. The jury does not function merely as a verdict-generating machine, or as a procedural safeguard for individual defendants. It ensures that the local community, with its customs, norms, and ways of life, is not simply trampled upon by a remote federal legislature. The legitimizing significance of the jury, in other words, arguably lies in its role as a kind of law-finder. With this in mind, we may do better to view it, not principally as a liberal institution, but as a manifestation of the principle of subsidiarity.

Zachary B. Pohlman, Catholic Social Teaching and the Role of the Prosecutor, 54 Creighton L. Rev 269 (2021)

Is being a prosecutor consistent with the tenets of Catholic Social Teaching? In this Article, I argue that the answer is a resounding "yes." The body of Catholic Social Teaching and its accompanying commentaries have long recognized the State's legitimate power to punish criminal offenders to promote the common good. But yet to be explored in the literature is the specific role that prosecutors play in effectuating that end. This Article takes a step in advancing that discussion. Based on two primary principles of Catholic Social Teaching-the dignity of the human person and the common good-I hope to show that being a prosecutor is not only consistent with Catholic Social Teaching but can also be a career and vocation that furthers it. This Article concludes by offering some modest suggestions to prosecutors to ensure that their day-to-day decision making is inspired by the principles of Catholic Social Teaching.

Jeffrey A. Pojanowski, Teaching Jurisprudence in a Catholic Law School, 58 Jrn of Cath. L. Studies (2019)

Robert Cover was only being slightly dramatic when he said, “Legal interpretation takes place on a field of pain and death.” Legal rules and their application do result in death sentences, prison terms, fines, injunctions, and the forcible taking of property. They can also enforce important promises, protect the weak from the strong, and secure our peace, property, and selfdirection. Given the gravity of law, any legal education seems incomplete without some space for critical reflection on what law is, what it is for, how this powerful social institution connects to morality and the common good, and how you, as a lawyer, play a role in that.

David A. Shaneyfelt, Confessions of a Catholic Litigator, 17 U. St. Thomas L.J. 111 (2020)

For more than thirty years, I have tried to answer these questions. Try is the operative word, and my reflections may not accord with the reflections of others. As the old saying goes, put two attorneys in one room and you get three opinions. But as Chesterton says, "[i]f a thing is worth doing, it is worth doing badly," and so I am content to try to answer these questions, because they are important questions, even if I may answer them badly according to others. My focus is simple. I first look to the external effects I have on others. Second, I think of the internal risks to me. Combat soldiers certainly do. Allow me, then, to look through the lens of my faith and reflect on the external and internal effects of my life as a Catholic litigator.

Maria Antonia Tigre, Exploring the Bedrock for Earth Jurisprudence, 22 Rutgers J. Law & Relig. 223 (2021)

Pope Francis specifically addressed the link between human rights and the environment, urging greater attention to international human rights law as a way of ensuring that basic human dignity is respected in the face of environmental burdens. 133The Catholic Church's message to adopt a new, sustainable development model is timely. It explicitly calls for ensuring that future generations - expressed as "intergenerational solidarity' - also enjoy the right to a healthy environment. This renewed message calls, both directly and indirectly, for increased environmental protection by reinforcing human rights. As articulated by several legal scholars, human rights and the environment are intrinsically connected. This relationship is reciprocal: "to protect certain basic human rights, protection of the natural world is essential," since fundamental human rights rely on a healthy environment.

Dancer argues that we need deep legal pluralist approaches that decenter anthropocentric thinking on the environment and decenter the state in the development of Earth-law, which places responsibility for the environment and the equitable sharing of power at the heart of legal frameworks on human-Earth relations and recognizes the diversity of ontologies that shape these relationships in law and practice. 502This article shows how Earth-centered discourses have existed in human societies and civilizations for millennia. Different religious and philosophical underpinnings all share a view of humanity as an integral part of an organic whole, revering all living things. While the recent developments in jurisprudence may appear novel, they are somewhat latent and emergent. 503Theories of land ethics, rights of nature, Earth-centered environmental ethics, wild law, and Earth jurisprudence all build on these philosophical crescendos and have proved influential at the international level through the HwN Programme. It is time to find new approaches to the law that rely on the value of nature. This article tells us the why and the how.

Christopher Tollefsen, Acknowledging the Body: The Challenge for Public Bioethics, 66 Am. J. Juris. 163 (2021)

At the outset of his illuminating and challenging book What It Means to be Human: The Case for the Body in Public Bioethics, O. Carter Snead identifies the nature of “public bioethics:” it is the domain of ethics concerned with “the governance of science, medicine, and biotechnology in the name of ethical goods.”¹ Put slightly differently a page later, public bioethics seeks the “normative foundation for law and policy” in science, medicine, and biotechnology. Snead is especially concerned here with what he calls areas of “vital conflict,” namely abortion, assisted reproductive technology, and end of life care. How is the law to be brought to bear on the dilemmas that emerge at the intersection of the beginning and ending of life, modern technology, and human relationships, aspirations, and desires?

John Adenitire, Protecting Solitary Beliefs Against Indirect Discrimination, 50 Indus. L.J. 196 (2021)

This article argues that the requirement of group disadvantage in indirect belief discrimination is incompatible with the human right to freedom of thought, conscience and religion. The latter protects sincerely held beliefs even if they are not shared by others or part of group orthodoxy. Consequently, the group disadvantage requirement in indirect belief discrimination ought to be interpreted away under section 3 HRA. Doing so, it is argued, does not give an unfair advantage to beliefs over other aspects of personal identity and complies with the legal injunction against judicial involvement in theological or philosophical disputes. The article concludes by arguing that, in light of the UK case law, imposing a requirement of group disadvantage is likely to pose a more significant barrier to secular philosophical beliefs than to religious ones. In light of an understanding of secularism that requires equal treatment of religious and deeply held secular beliefs, it is imperative that such a barrier be dispensed with.

Henry Amoroso, Paula Alexander Becker, and Evan Weiss, A Social Contract: The Doctrine of Unconscionability and its Relation to Social Progress, 28 Cardozo J. Equal Rts. & Soc. Just. 51, (2021)

The current structure of American contract law may limit the availability of adequate remedies for citizens within certain socioeconomic strata who, in the formation of a contract, often experience an asymmetry of information, financial resources, and lack what is broadly termed social capital. This paper further argues that this population might be better served by expanding how the court interprets and applies the doctrine of unconscionability through a reexamination of the foundational principles that led to its codification in the 1950s in the Uniform Commercial Code. Throughout this paper, I will also consider how several foundational principles of Catholic Social Teaching closely align with the foundational principles of American law and unconscionability, namely: solidarity, subsidiarity, a clarified accounting of freedom and equality, and, most importantly, the absolute dignity of the human person. By coming to a better understanding of these foundational principles shared across the American legal and Catholic intellectual traditions, we will be better suited to judge the appropriate application of the doctrine of unconscionability itself. Applications are made to living wage and guaranteed basic income initiatives.

Mark Bell, Labour Rights and the Catholic Church-the International Labour Organisation, the Holy See and Catholic Social Teaching by Paul Beckett (Abingdon: Routledge, 2021, Pp Xii + 281, Isbn 978 0 367 55633 4), 51 Indus. L.J. 219 (2022)

Paul Beckett's fascinating book reveals an ethical and institutional relationship between the ILO and the Catholic Church. He sustains his argument that their links, both historical and contemporary, are neglected in much of the existing literature. He presents a body of evidence that shows considerable interaction between the ILO and Catholicism, whether this is through Christian trade unions, faith-based groups, influential individuals, or relationships with the Holy See. It is more difficult to evaluate the extent to which this shaped the ILO at its inception or how much it does so in its present day endeavours. Beckett certainly shows that it was formative in the early period and that there is an ongoing relationship characterised by mutual influence. The Church's teaching on the dignity of work offers an ethical foundation for labour rights, which is readily accessible to secular reasoning. The ILO's activities have helped forge a contemporary understanding of what constitute universal labour rights that--at a high level--are consonant with the Church's moral tradition and have offered an institutional framework that the Church can endorse to the world. More broadly, this original book illustrates the importance of labour law scholarship engaging with all dimensions to the relationship between religion and the workplace. While conflicts can and do arise, these need to be balanced by a recognition of the quieter ways in which faith can play a positive role in supporting labour rights.

Nathan S. Chapman, Forgotten Federal-missionary Partnerships: New Light on the Establishment Clause, 96 Notre Dame L. Rev. 677 (2020)

Americans have long debated whether the Establishment Clause permits the government to support education that includes religious instruction. Current doctrine permits states to do so by providing vouchers for private schools on a religiously neutral basis. Unlike most Establishment Clause doctrines, however, the Supreme Court did not build this one on a historical foundation. Rather, in cases from Everson v. Board of Education (1947) toEspinoza v. Montana Department of Revenue (2020), opponents of religious-school funding have claimed American history supports a strict rule of no-aid. As the government-missionary partnerships narrow the scope of the objections to religious assessments, they likewise narrow the scope of the historical support for taxpayer standing under the Establishment Clause. The history certainly supports the notion that there is a constitutionally cognizable harm in forcing taxpayers to pay tithes, even to their own churches; but that history dissolves when applied to using general revenue to fund the provision of public services, even by religious organizations. There may be prudential  [*746] reasons to conclude that taxpayers should have standing to challenge governmental support for religious instruction, but they are not rooted in nonestablishment norms of the early republic. Yet the Court and scholars have largely ignored a practice that casts light on the historical understanding of the Establishment Clause: from the Revolution through the Civil War, the federal government partnered with missionaries to educate Native American students. At first ad hoc, the practice became a full-scale program with the Civilization Fund Act of 1819. Presidents Washington, Jefferson, Madison, and Monroe all actively participated. Intriguingly, no one objected to the partnerships on constitutional grounds. This is the first Article to place this practice in its cultural, political, and constitutional context, to consider its implications for the intellectual and political history of disestablishment, and to wrestle with its potential implications for contemporary church-state doctrine.

Nicole Stelle Garnett, Hartman Hotz Lecture: The Comparative Legal Landscape of Educational Pluralism, 73 Ark. L. Rev. 455 (2020)

As part of the fiscal stimulus bill enacted in the midst of the coronavirus pandemic, Congress extended certain billions of dollars in financial benefits to small businesses, including private and faith-based schools. 463Education Secretary Betsy DeVos acted quickly to block state efforts to exclude private schools from receiving more education funding. 464For some private  [*529] schools in the United States, these benefits are a matter of life and death. After they were forced to close in March 2020, dozens of private schools announced that they would not reopen in the fall. 465Many more expressed concerns that the financial stress of the closures (and resulting declining enrollments) would force them to follow suit. These concerns have prompted some to urge for the restructuring of K-12 education funding, including a dramatic expansion of private-school-choice. 466As a lifelong school-choice proponent, I agree that reconsidering the exclusion of private and faith-based schools is a matter of great urgency. I fear that we have come to this point too late for many schools that serve American children, including thousands of our most vulnerable students. As a student of comparative education policy, I also believe that parental-choice proponents, including myself, have failed to consider the tradeoffs between funding and autonomy in other countries. The time has come to reconsider that as well.

Nicole Stelle Garnett & Patrick E. Reidy, C.S.C., Religious Covenants, 74 Fla. L. Rev. 821 (2022)

When religious institutions alienate property, they often include religiously motivated deed restrictions that bind future owners, sometimes in perpetuity. These "religious covenants" serve different purposes and advance different goals. Some prohibit land uses that the alienating faith communities consider illicit; others seek to ensure continuity of faith commitments; still, others signal public disaffiliation with the new owners and their successors. Some religious covenants are required by theological mandates, but many are not. This Article examines the phenomenon of religious covenants as both a private law and public law problem. This Article concludes that most, but not all, of the religious covenants are likely enforceable, and furthermore, that traditional private law rules governing covenant enforcement represent a bigger impediment to their enforcement than public law principles.

Daniel J. Morrissey, The Promise of Stakeholder Advisory Councils, 23 U. Pa. J. Bus. L. 470 (2021)

Did you ever expect a corporation to have a conscience, when it has no soul to be damned, and no body to be kicked?”-- Baron Thurlow, Lord Chancellor of England¹Large public corporations have made tremendous contributions to our society. We benefit from their continuing innovations in the products and services that touch our lives many times each day. And they furnish gainful employment to large numbers of people.² When run honestly and in a manner sensitive to the concerns of their customers and the public at large, they have been a huge asset to our common life.³

H. Justin Pace, Rogue Corporations: Unlawful Corporate Conduct and Fiduciary Duty, 85 Mo. L. Rev. 1 (2020)

This Article will consider various corporate lawbreaking scenarios in light of these frameworks. Particular attention will be paid to Dick's Sporting Goods' and Walmart's corporate decisions to stop selling firearms to eighteen- to twenty-year-olds, thus violating state law prohibitions on age discrimination in public accommodations. After considering and critiquing each moral theory in the context of examples of corporate lawbreaking, the Article will conclude with a recommendation for how fiduciary obligation law should regard “rogue” corporations.⁶ The second non-liberal (and non-utilitarian) model I will consider comes from Catholic Social Thought (“CST”). I include Catholic Social Thought for four reasons. First, there are well over 50 million Catholics in the United States,¹⁸⁶ and the hierarchical structure and long history of the Church allows for a central body to build a political theory over time.¹⁸⁷ Second, the Church *33 has long worked to position CST as an alternative to both liberalism and socialism.¹⁸⁸ Third, CST is persuasive as a matter of first principles. Fourth, CST is more concrete than other models, and thus more readily applied.¹⁸⁹ CST “focuse[s] more directly on social problems and concrete issues of justice” than the work of Rawls and Nozick.¹⁹⁰ CST also has a long history as an alternative to liberalism.¹⁹¹

Andrea Pin and John Witte, Jr., Meet the New Boss of Religious Freedom: The New Cases of the Court of Justice of the European Union, 55 Tex Int'l L. J. 223 (2020)

This Article analyzes how and why the Court of Justice of the European Union is rapidly becoming an important new forum for European religious freedom and threatening to eclipse the better-known European Court of Human Rights. Before 2017, the Court of Justice was largely silent on religious freedom, and it did little to implement the new religious freedom guarantees of the 2010 EU Charter of Fundamental Rights. Since 2017, however, this Court has issued landmark rulings on the rights and limits on Muslim employees to wear religious headscarves in the workplace and the rights of employers to make religious affiliation and conformity a prerequisite for employment or a basis for differential treatment of employees. The Court has balanced the rights of religious groups to continue ritual slaughtering with the growing concerns for animal wellbeing and organic food preparation. The Court has addressed hard questions of tax exemption and other state aid for religious schools; the rights and limits of refugees alleging religious persecution at home; the limits on state recognition of religious divorces; and the limits that privacy laws impose on Jehovah's Witnesses. And the Court has begun to question longstanding religion-state arrangements in selected countries, including those establishing or favoring traditional forms of Christianity. Unlike the European Court of Human Rights in Strasbourg, which mostly relies on voluntary compliance by the individual State found in violation on the European Convention on Human Rights, the European Court of Justice produces cases that immediately bind all EU Member States and automatically preempt conflicting local laws. Moreover, local state courts regularly seek advisory opinions from this European Court on prevailing EU law before resolving local cases before them. This makes appeal to binding EU law more attractive for local litigants, religious freedom advocates ever more prominently amongst them. If present case trends continue, the world might well be watching the birth of an integrated European law of religious freedom; however, that birth could unsettle longstanding local traditions of church-state relationships and leave insular religious minorities, particularly Muslims, with little religious freedom protection.

James Grant Semonin, Note: "For the Forgiveness of Sins": A Comparative Constitutional Analysis and Defense of the Clergy-Penitent Privilege in the United States and Australia, 47 J.Legis. 156 (2020)

What is striking me about [efforts to curb the clergy-penitent privilege is that legislators are] now going beyond public institutions and reaching very deeply into the interior life of the Church - how we manage our sacramental life - and that kind of aggression, that sort of violation of religious liberty ... should concern not just Catholics but anyone who is committed to ... political values. 1 While this Note argues against subordinating the privilege to mandatory reporter statutes, there is clearly a manifest interest in preventing and prosecuting child abuse. It is evident that the Church has failed in many regards, and institutional  [*192] changes from the inside out are necessary to ensure that clergy are adequately trained to counsel penitents regarding the means through which the ends of justice and mercy may be best served. With properly drafted legislation and thorough institutional reform, legislatures and churches alike can work in tandem to address child abuse and protect legitimate religious practice.

Elizabeth Totzke, Note: The Catholic Church and the Paycheck Protection Program: Assessing Nondiscrimination after Trinity Lutheran and Espinoza, 96 Notre Dame L. Rev. 1699 (2021)

Despite the heated response to the Catholic Church's receipt of government funding, the SBA adopted the constitutionally correct standard when it deemed the Catholic Church, as well as other houses of worship, eligible for PPP loans. Although American culture and media continue to cling to the traditional notion of the "wall of separation between church and state," the Court has long abandoned such a paradigm. Most recently, in Trinity Lutheran and again in Espinoza, the Court has embraced a principle of nondiscrimination, which prohibits the government from excluding religious entities based on status alone. 189Moreover, the legal "writing on the wall" suggests this new principle is part of a larger trend, with several members of the Court willing to continue to expand this doctrine in favor of religion. Because the SBA's official policy, which remains in force, relies on a prohibited status-based discrimination, the SBA should, as FEMA did in 2017, officially adopt its inclusive PPP policy. 190And, other federal agencies should do the same. Such policies not only better align with the Court's First and Fourteenth Amendment jurisprudence, but it also ensures religious entities - as well as those who they employ - are not disadvantaged when the next disaster inevitably strikes. The Free Exercise Clause requires nothing less, and the Establishment Clause requires nothing more.

David A. Grenardo, Marianist Law Schools: Demonstrating the Courage to Be Catholic, 60 J. Cath. Legal Stud. 1 (2022)

This Article concludes that the Marianist law schools educate their students in a manner consistent with the Marianist tradition and Catholic faith, and other religiously-affiliated law schools can use their efforts as a guide for their own education models. Namely, religiously-affiliated law schools should identify the characteristics that describe their legal education and determine whether they are living out those characteristics.²⁰ Also, they can share their faith and traditions with students of all faith backgrounds in an inclusive, respectful, and thoughtful way. Finally, religiously-affiliated law schools can encourage their students, while also providing opportunities to do so, to adapt to changing times, seek justice and peace, and use their gifts and talents to serve the common good.

Ulysses Jaen, Rebekah Miller, The Future of Legal Education: Game-Changing ABA-Approved Online Law Schools Make Becoming A Lawyer Easier and More Affordable, 20 Ave Maria L. Rev. 66 (2022)

As legal educators, our mission is to teach our students and assist our profession and our community with the intricacies of our justice system. We aim to teach students about the law and to help as many people as we can through them, because it is done for the common good. Becoming licensed attorneys is the best way that our students can make a difference in our society. Teaching as many students who want to help our communities face the challenges of today is limited by the current American Bar Association (ABA) *67 standards that generally require in-person instruction.² We believe that the lessons learned during this terrible COVID-19 Pandemic add impetus to the creation of part-time programs as well as the expansion of fully online legal education offerings in the near future.³

Vincent R. Johnson, The First Woman Dean of a Texas Law School: Barbara Bader Aldave at St. Mary's University, 54 St. Mary's L. J. 153 (2023)

The field in which Dean Aldave's legacy is indisputable concerns the diversity of the faculty and student body. The law school and the university have never turned away from those priorities. Indeed, St. Mary's University School of Law is an example of a law school that is much more diverse today than when Aldave was made dean. 246Today, minority, female, and international students - just like majority students - play an important role and find success in every aspect of the law school's educational operations and extracurricular opportunities. Dean Aldave laid the foundation for this productive and happy state of affairs. That, as much as anything, is her great legacy at the law school.

 

Evelyn Hildebrand, Incentive, Entitlement, and the Ineffective Subsidization of the Housing Market, 18 Ave Maria L. Rev. 136 (2020)

Leaving aside the compelling critique that the LIHTC is ineffective without being coupled with rental assistance, the LIHTC has failed because it cannot move low-income people towards success and independent stability. Instead, the credit's structure actually disincentivizes work while attempting to ensure the equal outcome of housing for all.²⁶¹ Likewise, the Rent Relief Act ignores how the incentive operates in the function of the free market and will lead the housing market down the same road that healthcare and education subsidization have both taken.²⁶² Access to healthcare, education, and housing are important to Americans; however, the only equal outcome well-intentioned government intervention, built on a structure of entitlement, can remotely ensure is prohibitively increased costs charged either directly or indirectly to the taxpayer. The question of housing is certainly an important one--and the answer lies in recognizing and rewarding work by crafting policy that understands the importance of personal responsibility. The housing market is no exception to the general rule: government can ensure equal opportunity, but it cannot and should not ensure equal outcome.

J. Kirkland Miller and Maureen M. Milliron, Ownership of Property and Adverse Possession from the Catholic Perspective: You've Got to Have (Good) Faith!, 20 Ave Maria L. Rev. 125 (2022)

Arguments in favor of requiring the bad faith adverse possessor to compensate the dispossessed title holder for land knowingly taken have been recommended by several scholars over the years; 176however, none have addressed this issue from the Catholic perspective. Requiring good faith, or, in cases of bad faith, that the knowing trespasser pay for the land, underscores the sense of right and conscience that underpins the natural law and is written on the heart of every man. For "right and justice [are] ultimately . . . laws of the moral world order which flow from the qualities of God, which make themselves known as such by the organ of conscience . . . as the will of God and as a power which transcends the human being." 177

Brigid Sawyer, Comment: Whose Highest and Best? Including Economic Development and Individual Landownership in the Highest and Best Use Standard, 70 Cath. U. L. Rev. 289 (2021)

The revised definition of highest and best allows for the competing values of economic potential and individual rights to the property to be analyzed together without placing one superior to the other. Superiority of economic use was one driving motivation behind taking Native American land and allowing economic development to become a public use under eminent domain. With the new definition of highest and best use, we can allow economic development to be a factor in eminent domain valuation without allowing it to be the only factor. When highest and best use provides a concrete and accurate representation of both conflicting interests, we remain true to founding philosophies of property rights, and allow the valuation system to consider both of these goals more comprehensively.

The creation of this Comment would not be possible without expert guidance and support of Professor Lucia A. Silecchia, for whom the author is extremely grateful.

Jeremy N. Sheff, Jefferson's Taper, 73 SMU L. Rev. 299 (2020)

Sheff is a professor of law, St. John's University. This Article reports a new discovery concerning the intellectual genealogy of one of American intellectual property law's most important texts. The text is Thomas Jefferson's often-cited letter to Isaac McPherson regarding the absence of a natural right of property in inventions, metaphorically illustrated by a "taper" that spreads light from one person to another without diminishing the light at its source. I demonstrate that Thomas Jefferson likely copied this Parable of the Taper from a nearly identical passage in Cicero'sDe Officiis , and I show how this borrowing situates Jefferson's thoughts on intellectual property firmly within a natural law theory that others have cited as inconsistent with Jefferson's views. I further demonstrate how that natural law theory rests on a pre-Enlightenment Classical Tradition of distributive justice in which distribution of resources is a matter of private judgment guided by a principle of proportionality to the merit of the recipient - a view that is at odds with the post-Enlightenment Modern Tradition of distributive justice as a collective social obligation that proceeds from an initial assumption of human political equality. Jefferson's lifetime correlates with the historical pivot from the Classical to the Modern Tradition, but modern readings of the Parable of the Taper, being grounded in the Modern Tradition, ignore this historical context. Such readings cast Jefferson as a proto-utilitarian at odds with his Lockean contemporaries, who supposedly recognized property as a natural right. I argue that, to the contrary, Jefferson's Taper should be read in light of the Classical Tradition from which he borrowed and the Baconian scientific model he admired, such that it not only fits comfortably within a natural law framework, but also points the way toward a novel natural law-based argument that inventors and other knowledge creators actually have moral duties to share their knowledge with their fellow human beings.

"For upon every invention of value, we erect a statue to the inventor, and give him a liberal and honourable reward." 1--Francis Bacon

Lucia A. Silecchia, Property and Moral Responsibilities: Some Reflections on Modern Catholic Social Theory, 9 Tex. A&M J. Prop. L. 733 (2023)

Professor Eric Claeys's forthcoming book, Natural Property Rights, offers a deep perspective on property rights principles. However, while the law tends to focus--as I believe it must--on property rights, rights are inextricably intertwined with duties or responsibilities. The natural rights framework for property is, as Claeys says, “good enough for government work.” It reflects a principled way for the government to allocate property rights and use the law to protect them.

However, it is necessary to look beyond what is desirable for government to protect through law. Other sources propose parameters for reasoned use of property with an emphasis on duties. The Catholic social tradition offers a perspective on the moral duties and responsibilities that accompany property rights. This is not a substitute for natural property rights and their robust legal protection. Rather, it is a way to supplement legally defined rights with a moral perspective stressing the correlative duties and responsibilities that come with those rights. This paper argues that the more focus there is on a rights-based view of property from a legal perspective, the more important it is to look at moral frameworks to promote a healthy and holistic vision of property. Modern Catholic social theory offers just such a framework.

Sam Spiegelman & Gregory C. Sisk, Cedar Point: Lockean Property and the Search for A Lost Liberalism, Cato Sup. Ct. Rev., 2020-2021, at 165

Cedar Point moves regulatory takings in a direction that accords far better with the history of Anglo-American property law than does Pennsylvania Coal--at least as that ruling has been understood in the post-Penn Central cases. Instead of balancing competing values, it focuses on the claimed right or interest interfered with, asking whether the ancient common law or evolving “background principles” of state law removes that claimed right or interest from the ambit of ownership, almost invariably because its use does or will produce a public harm. Still, Cedar Point omitted some crucial pieces from the latter-day takings puzzle. What is the content, scope, and elasticity of the “exceptions” to the otherwise absolute character of ownership? Cedar Point recites a few examples of when the state may appear to take the right to exclude but is in fact exercising its legitimate police powers. But the majority does not discover in those the thread of the classical liberal approach to regulations, by which the question is whether or not the regulation stops or prevents a harm, not whether it physically deprives an owner of their property. Its distinguishing of Pruneyard demonstrates this oversight. Despite arguments that it is too subjective to be workable,¹¹⁷ the harm/benefit distinction controlled much of the public-private relationship for centuries¹¹⁸ and aligns far better with Locke's social contract--with *190 its ultimate end of preserving individual life, liberty, and estates--than does the modern positivistic style. The survival of the Lockean view of property could well depend upon whether the Court has in it the want and wherewithal to move its takings jurisprudence back in a classical liberal direction.

Bernard S. Sharfman, Now Is the Time to Designate Proxy Advisors As Fiduciaries Under ERISA, 25 Stan. J.L. Bus. & Fin. 1 (2020)

Now is the time to designate proxy advisors as investment advice fiduciaries under the Employee Retirement Income Security Act of 1974 (ERISA). Such a designation is not only necessary to correct long standing concerns, but also to make sure voting recommendations are in compliance with the sole objective required by ERISA, shareholder wealth maximization (SWM). Utilizing voting recommendations that do not have SWM as their objective, e.g., utilizing Environmental, Social, and Governance (ESG) objectives, would be in direct conflict with the fiduciary duties of an ERISA plan manager when managing the shareholder voting rights of a plan. Being designated an investment advice fiduciary under ERISA would require proxy advisors, like plan managers, to be constantly guided by fiduciary principles in the creation of their voting recommendations for ERISA plans. These fiduciary principles include making decisions solely in the interest of the participants and beneficiaries of the plans with the exclusive purpose of providing benefits to them, and the application of the prudent man standard to proxy advisor actions. The investment advice fiduciary designation would also require proxy advisors to consider, without exception, SWM as the fiduciary objective when creating voting recommendations for ERISA plan managers. This means that ESG objectives cannot creep into these voting recommendations. To explain why this is so, a substantial portion of this Article is devoted to explaining how ESG interacts with the fiduciary duties of ERISA.

José E. Alvarez, Biden's International Law Restoration, 53 N.Y.U. J. Int'l L. & Pol. 523 (2021)

If the Biden administration approached the eight trends left over from the Trump presidency according to the values espoused in Fratelli Tutti, the world could see a more transformative U.S. approach to international law instead of the more likely tempered return to normalcy. Yet even the latter rightly generates sighs of relief among most international lawyers and within the U.S. foreign policy establishment. In the minds of many, Biden's restoration, even if modest, will be a massive improvement over the prior administration's manifold transgressions against national and international law. At the very least, Biden's election will forestall a fearsome slide towards greater international disorder and “global authoritarianism”²⁰¹ and return the United States to relatively stable relations with nations entitled to respect. Biden, like most prior U.S. presidents, will try to explain, sometimes implausibly, how his actions comport with international law. The Trump administration rarely bothered to do that much and often flaunted international law.²⁰² Even on his way out the door, Trump violated *586 internationally accepted norms governing free and fair elections.²⁰³ Biden's election will bring international lawyers back into “the room where it happens.”²⁰⁴ What they do when they get there remains a work in progress. The 2020 election demonstrates that U.S. politics continue to be defined by sharp divides between ‘values' voters who often identify as evangelical Christians and secular, largely urban elites on the east and west coasts. Ironically, the successful candidate most strongly backed by ‘coastal elites' turned out to be a practicing Catholic apt to pay heed to Pope Francis's call to defend common humanity (Fratelli Tutti) and protect the planet (Laudato si’). Fortunately for the United States and perhaps the world, President Biden seems to agree with those who still have faith that international law and its institutions can help achieve both of these goals.

Cathalene Bowler and Lisa C. Williams, Qualified Charitable Distributions: Advantages for Charitable Baby Boomers, 105 Prac. Tax Strategies, 17 (2020)

Charitably inclined baby boomers age 70 1/2 and older, that have traditional IRAs and have RMDs, may receive greater tax benefits with QCD exclusions than charitable contribution deductions. The increase in the RMD age with the SECURE Act does not impactthe age limits for QCDs; it remains at 70 1/2. However, the SECURE Act also eliminated the 70 1/2 age limitation for contributing to a traditional IRA. This change requires the QCD income exclusion to be reduced by the amount of the IRA contributiondeduction.

The CARES Act waived RMDs for 2020 and permitted rollovers of RMDs already received in 2020 until 8/31/2020. An alternative for generous baby boomers that still plan to receive an RMD is to use it to make a QCD to exclude the income. Tax professionals shouldadvise their baby boomer clients on the tax advantages and caveats of QCDs.

QCDs are distributions directly from an IRA trustee to a qualified charitable organization.

A QCD may be applied toward the annual RMD if the taxpayer donates directly from an IRA (on or after turning age 70 1/2) or deemed IRA.

**10 The beauty of a QCD is that it reduces the taxable amount of an RMD from an IRA for taxpayers age 70 1/2 or older.

Tax professionals can highlight how baby boomers receiving an RMD from an IRA can take advantage of the standard deduction and still benefit from charitable giving with a QCD.

Samuel D. Brunson, God Is My Roommate? Tax Exemptions for Parsonages Yesterday, Today, and (If the Constitutional) Tomorrow, 96 Ind. L. J. 521 (2021)

In this Article, Brunson explores the historical and current tax exemptions for parsonages, and trace how states arrived at their current exemptions. Ultimately, I conclude that the historical significance test, as applied by the Seventh Circuit, does not support the constitutionality of the parsonage allowance. I further conclude that, given its complexity and the fact that attorneys and judges tend to be poor historians, the historical significance test is not well suited as a jurisprudential tool for analyzing Establishment Clause questions, and that courts should not adopt it.

Nathan S. Chapman, Forgotten Federal-missionary Partnerships: New Light on the Establishment Clause, 96 Notre Dame L. Rev. 677 (2020)

Americans have long debated whether the Establishment Clause permits the government to support education that includes religious instruction. Current doctrine permits states to do so by providing vouchers for private schools on a religiously neutral basis. Unlike most Establishment Clause doctrines, however, the Supreme Court did not build this one on a historical foundation. Rather, in cases from Everson v. Board of Education (1947) toEspinoza v. Montana Department of Revenue (2020), opponents of religious-school funding have claimed American history supports a strict rule of no-aid. As the government-missionary partnerships narrow the scope of the objections to religious assessments, they likewise narrow the scope of the historical support for taxpayer standing under the Establishment Clause. The history certainly supports the notion that there is a constitutionally cognizable harm in forcing taxpayers to pay tithes, even to their own churches; but that history dissolves when applied to using general revenue to fund the provision of public services, even by religious organizations. There may be prudential  [*746] reasons to conclude that taxpayers should have standing to challenge governmental support for religious instruction, but they are not rooted in nonestablishment norms of the early republic. Yet the Court and scholars have largely ignored a practice that casts light on the historical understanding of the Establishment Clause: from the Revolution through the Civil War, the federal government partnered with missionaries to educate Native American students. At first ad hoc, the practice became a full-scale program with the Civilization Fund Act of 1819. Presidents Washington, Jefferson, Madison, and Monroe all actively participated. Intriguingly, no one objected to the partnerships on constitutional grounds. This is the first Article to place this practice in its cultural, political, and constitutional context, to consider its implications for the intellectual and political history of disestablishment, and to wrestle with its potential implications for contemporary church-state doctrine.

John Greil, The Unfranchised Competitor Doctrine, 66 Vill. L. Rev. 357, (2021)

Courts have long resolved claims of unfair competition and protected property rights from unlawful interference. But when Uber upset the property right of the taxi medallion, medallion holders were almost entirely unsuccessful in the resulting litigation. Takings claims against local governments failed, as did unfair competition and antitrust claims against the company. They failed because courts supposed the taxi companies' property did not include the right to exclude competition, and medallion holders lacked a cause of action to privately enforce regulations limiting the number of market participants. This Article examines these suppositions and finds that both are misguided. To explain why, it unearths a long-neglected doctrine that turns some of competition law's foundational premises on their head. One type of public franchise right - which this Article calls a protected special franchise - includes the right to exclude unauthorized competition. Courts of equity (as well as of law) recognized a cause of action to protect this right. This kind of claim - which the Article names "the unfranchised competitor doctrine" - allows a franchisee to enjoin a competitor that is operating without lawful authorization. At law, it permits the franchisee to recoup lost custom from the competitor. This Article applies the doctrine to reveal its departure from takings, antitrust, and unfair competition doctrine. These points of departure inform how the law can and should inform market disruptions, especially when the government has insulated an incumbent player from competition. A better understanding of the unfranchised competitor doctrine provides broader lessons for how property law and equity doctrine can shape today's marketplace. It highlights the shift in regulation of "big tech" companies towards private regulatory enforcement. And it presents a variety of competition law, operating outside of the consumer welfare paradigm, that provides leverage for a variety of stakeholders. This Article is the first scholarly treatment of the unfranchised competitor doctrine in over fifty years. It clarifies the law of unfair competition in times of technological upheaval and regulatory transition. And it details a new way of thinking about who will pay for the costs of technological and market change.For instance, a man has a right to set up a shop in a small village which can support but one of the kind, although he expects and intends to ruin a deserving widow who is established there already. - Oliver Wendell Holmes, Jr. 1

Lloyd Hitoshi Mayer & Zachary B. Pohlman, What Is Caesar's, What Is God's: Fundamental Public Policy for Churches, 44 Harv. J.L. & Pub. Pol'y 145 (2021)

Bob Jones University v. United States is a highly debated Supreme Court decision, both regarding whether it was correct and what exactly it stands for, and a rarely applied one. Its recognition of a “fundamental public policy doctrine” that could cause an otherwise tax-exempt organization to lose its favorable federal tax status remains highly controversial, although the Court has shown no inclination to revisit the case, and Congress has shown no desire to change the underlying statutes to alter the case's result. That lack of action may be in part because the IRS applies the decision in relatively rare and narrow circumstances. The mention of the decision during oral argument in Obergefell v. Hodges raised the specter of more vigorous and broader application of the doctrine, however. It renewed debate about what public policies other than avoiding racial discrimination in education might qualify as fundamental and also whether and to what extent the doctrine should apply to churches, as opposed to the religious schools involved in the original case. 

John Infranca, Differentiating Exclusionary Tendencies, 72 Fla. L. Rev. 1271 (2020)

Residents of wealthy suburbs also have an interest or stake in their community and personhood interests tied to the preservation of its existing character. Given that addressing one problem (preserving neighborhood character) might call for situating power at the local level in a way that undermines efforts to address another problem (housing supply and affordability), does the principle of subsidiarity provide any insight on how we might allocate control in an intellectually consistent manner? This Article suggests that subsidiarity, upon deeper reflection, offers a way out of this seeming dilemma. Subsidiarity, which is a prevalent component of European law, 189originated in Catholic social doctrine. 190  [*1312] Importantly, and often lost in the course of the term's translation to the American context and debates over federalism and local control, subsidiarity "is linked in Catholic thought to ideas of social solidarity and the importance of mediating institutions in order for people to lead good and fulfilled lives." 191As Pope Benedict XVI wrote in his Encyclical Letter Caritas in Veritate: "The principle of subsidiarity must be closely linked to the principle of solidarity and vice versa, since the former without the latter gives way to social privatism, while the latter without the former gives way to paternalist social assistance that is demeaning to those in need." 192Relatedly, subsidiarity, as originally understood, functions in service to both individual flourishing and the common good. 193Pope John Paul II weaved together these ideas, remarking that in "exceptional circumstances" a "community of a higher order" may be justified in intervening in the functioning of a "community of a lower order" for "urgent reasons touching the common good." 194Collectively, then, the concept of subsidiarity suggests a set of three interrelated principles. First, social institutions, including government, exist for the purpose of enabling individuals to flourish. Second, individuals are most likely to flourish to the extent that they can actively participate in decision-making, something they are more likely to do when power is placed at a lower level, closer to the individual. Third, the complementary  [*1313] principles of solidarity and the common good temper subsidiarity, providing a limit on tendencies towards privatization and exclusion.

H. Justin Pace, The "Free Market" For Marijuana: A Sober, Clear-Eyed Analysis of Marijuana Policy, 24 Lewis and Clark L. Rev. 1219 (2020)

This Article is the first to use this situation to examine the value offered by our legal and financial infrastructure. An inability to use it hurts marijuana businesses in very real ways. But, nonetheless, marijuana businesses are able to operate - to thrive even. That infrastructure is both more and less valuable than is appreciated, and in surprising ways. Ultimately, this Article advocates federal action that facilitates a continued incremental, state-by-state approach to marijuana reform.

Both John Rawls and Catholic Social Thought would consider potential policy change in light of its expected effect on the poorest. John Rawls, A Theory of Justice (Belknap Press rev. ed. 1999) ("The higher expectations of those better situated are just if and only if they work as part of a scheme which improves the expectations of the least advantaged members of society."); U.S. Catholic Bishops, Economic Justice for All: Pastoral Letter on Catholic Social Teaching and the U.S. Economy P 24 (1986) ("The fundamental moral criterion for all economic decisions, policies, and institutions is this: They must be at the service of all people, especially the poor."). While many of the negative externalities from legal marijuana will fall heavily on the poor, the negative externalities for substitute goods to legal marijuana also fall particularly heavily on the poor. Another approach would be to consider marijuana policy from a fairness perspective, taking into account racial disparities in enforcement of prohibition and harms from marijuana use relative to alcohol use. Cf. Lachenmeier & Rehm, supra note 328, at 5 ("For the society as a whole, the several ten-thousands of alcohol-related deaths considerably outnumber drug overdose deaths.").

Charles J. Russo and William E. Thro, The Demise of the Blaine Amendment and a Triumph for Religious Freedom and School Choice: Espinoza V. Montana Department of Revenue, 46 Dayton L. Rev. 131 (2021)

Espinoza has the potential to play a major role in helping to end what former President George W. Bush described as the "soft bigotry of low expectations." 245This "soft bigotry" condemns many children, especially those from economically deprived backgrounds, to attending low-performing schools from which they have little, if any, chance of succeeding academically and beyond, denying them, their parents, and families opportunities to participate in the seemingly elusive "American Dream." Espinoza thus represents a significant step toward achieving the as of yet unfulfilled promise of Brown v. Board of Education's equal educational opportunities for all of America's children and their families, regardless of their races, creeds, ethnicities, genders, socioeconomic or immigration statuses, or (dis)abilities. 246 Brown's goal of equal educational opportunities for all children and their families is one well worth pursuing, perhaps now more than ever before in the nation's history.

F. C. Saldivar SJ, Africa in the Economy of Francesco: Rethinking the Ethics of the International Financial Order at the Intersection of Tax Justice and Catholic Social Teaching, Volume 1, AfJIEL, (2020)

In 2015, Pope Francis laid out his vision for an integral ecology in his Encyclical on Care for our Common Home Laudato Si’, which flows from an understanding that everything is closely interrelated and that policy solutions to address climate change and poverty will need to be multidimensional and interdisciplinary. In the years since, integral ecology has broadened from a conversation focused on the environment to include a framework for radically rethinking the ethics of the international financial order, a program which has come to be known as the Economy of Francesco. Tax justice, as a concept of global redistributional justice examining means of reducing tax avoidance through the use of haven jurisdictions, is an area where the Catholic Church can be a dynamic, innovative conversation partner for those working to eliminate poverty in Africa. This Article situates Africa in the Economy of Francesco, exploring the intersection of tax justice and Catholic social teaching. This Article provides a primer on the international tax system, highlighting the legal and ethical principles on which it is based. It then explores theories of taxation – how, where, and what to tax – and their implications for tax justice. The Economy of Francesco is then analyzed in detail, discussing Catholic social teaching on taxation and the economy from Vatican II up to the present. The Article concludes with a roadmap for African tax justice within the Economy of Francesco, proposing strategies for policy and advocacy which best leverage the continent’s strengths before key international decision-making fora.

Brigid Sawyer, Comment: Whose Highest and Best? Including Economic Development and Individual Landownership in the Highest and Best Use Standard, 70 Cath. U. L. Rev. 289 (2021)

The creation of this Comment would not be possible without expert guidance and support of Professor Lucia A. Silecchia, for whom the author is extremely grateful. The revised definition of highest and best allows for the competing values of economic potential and individual rights to the property to be analyzed together without placing one superior to the other. Superiority of economic use was one driving motivation behind taking Native American land and allowing economic development to become a public use under eminent domain. With the new definition of highest and best use, we can allow economic development to be a factor in eminent domain valuation without allowing it to be the only factor. When highest and best use provides a concrete and accurate representation of both conflicting interests, we remain true to founding philosophies of property rights, and allow the valuation system to consider both of these goals more comprehensively.

Mark Storslee, Church Taxes and the Original Understanding of the Establishment Clause, 169 U. Pa. L. Rev. 111 (2020)

Since the Supreme Court's decision in Everson v. Board of Education, it has been widely assumed that the Establishment Clause forbids government from 'aiding' or subsidizing religious activity, especially religious schools. This Article suggests that this reading of the Establishment Clause rests on a misunderstanding of Founding-era history, especially the history surrounding church taxes. Contrary to popular belief, the decisive argument against those taxes was not an unqualified assertion that subsidizing religion was prohibited. Rather, the crucial argument was that church taxes were a coerced religious observance: a government-mandated sacrifice to God, a tithe. Understanding that argument helps to explain a striking fact about the Founding era that the no-aid theory has largely ignored--the pervasive funding of religious schools by both the federal government and the recently disestablished states. But it also has important implications for modern law. Most significantly, it suggests that where a funding program serves a public good and does not treat the religious aspect of a beneficiary's conduct as a basis for funding, it is not an establishment of religion.

Sally R. Wagenmaker, Ryan Oberly, and Paul Winters, Religious Tax Reclassification for Public Charities, 33 Tax'n Exempts 34 (2022)

Tax reclassification as a church, an association of churches, or mission society may be an attractive opportunity for many organizations described under IRC Section 501(c)(3), but reclassification should not be undertaken lightly. Careful evaluation of the organization's current operations and governance structure should be made, particularly how strongly religious it is and whether it can likely satisfy the IRS's 14-factor or associational tests. Additionally, the organization should identify whether adjustments are warranted to strengthen its religious identity and, if so, whether such adjustments are in keeping with the organization's mission. Organizational leaders should determine the extent to which additional religious exemptions and related benefits may be available, such as the clergy housing allowance and the ministerial exception. Additional religious liberty protections may be available as well, consistent with the Demkovich court's admonition to honor organizations' First Amendment rights, depending on future religious liberty developments.

Jane F. Adolphe & Ronald J. Rychlak. Clerical Sexual Misconduct: An Interdisciplinary Analysis, Cluny Media, (2020)

In 2018, as accounts of clerical sexual misconduct in Chile, Honduras, and the United States roiled the Catholic Church, an international meeting of experts in journalism, law, pastoral care, philosophy, psychology, sociology, and theology, was convened to study the incidence of clerical sexual abuse of males. Under the skilled editorship of Jane F. Adolphe and Ronald J. Rychlak, Clerical Sexual Misconduct: An Interdisciplinary Analysis is the result of that meeting and the incisive, insightful studies which it generated.

Sarah Baulac, In the Business of Medicine: Why Hospitals Should Be Subject to the Theory of Strict Liability As Any Other Seller, 20 Ave Maria L. Rev. 192 (2022)

Hospitals have routinely escaped strict liability for defective implanted medical devices, and it is no longer prudent for courts to allow hospitals to hide behind the “essence”¹⁸² of the transaction between patient and hospital. Plainly, modern hospitals are sellers of implantable medical devices and not solely service providers.

The market for implanted medical devices has grown exponentially as more Americans are being fit with such devices.¹⁸³ As the demand for implantable medical devices increases, hospitals have reaped the benefits as *215 sellers. Hospitals, profitable even as non-profits,¹⁸⁴ are tweaking their operating models to best leverage implantable medical devices as profit centers. Because hospitals are taking a more active role in selecting implantable medical devices and inflating the price of devices as they see fit, the law should see fit to hold them strictly liable for defective devices as any other entity in the business of selling who introduces the risk to the public. Ultimately, the policy concerns that courts cite to are refutable and, in fact, these “concerns” are not really concerns at all, but rather incentives for hospitals to get serious about devices that are safe for patients.

As the court said in Cunningham, one of the biggest businesses in the country should bear the costs of distributing a product for consumption.¹⁸⁵ The time has come to treat hospitals as the profit-turning businesses that they are and impose strict products liability appropriately.

J. Kirkland Miller and Maureen M. Milliron, Ownership of Property and Adverse Possession from the Catholic Perspective: You've Got to Have (Good) Faith!, 20 Ave Maria L. Rev. 125 (2022)

Arguments in favor of requiring the bad faith adverse possessor to compensate the dispossessed title holder for land knowingly taken have been recommended by several scholars over the years; 176however, none have addressed this issue from the Catholic perspective. Requiring good faith, or, in cases of bad faith, that the knowing trespasser pay for the land, underscores the sense of right and conscience that underpins the natural law and is written on the heart of every man. For "right and justice [are] ultimately . . . laws of the moral world order which flow from the qualities of God, which make themselves known as such by the organ of conscience . . . as the will of God and as a power which transcends the human being." 177

Nadia N. Sawicki, The Conscience Defense to Malpractice, 108 Calif. L. Rev. 1255 (2020)

This Article presents the first comprehensive overview of the procedural protections established by state conscience laws in the reproductive health care context. The novel research findings in this Article raise awareness of the previously unrecognized breadth of protections established by conscience laws. These findings also challenge the assumption that tort law is available to remedy harms suffered by patients who are injured by a conscience-based denial of information or treatment, even when that denial violates the standard of care. Although the scope of this study was limited to conscience laws relating to reproductive care, it prompts further academic inquiry and debate about the appropriate scope of conscience protections in all health care contexts. The data and discussion in this Article should motivate policy-makers to consider how best to balance providers' rights of conscience against the state's interest in ensuring that patients, employers, and others who suffer harm as a result of a provider's exercise of conscience rights are not denied legal remedies for those harms.

Kyle C. Bacchus, A Testament to the Future of Testaments: Electronic Wills Are the Future, 17 Ave Maria L. Rev. 35 (2019)

For the first time in over a century, the rules of engagement for executing a valid will are changing. It started with the Harmless Error Rule. Now, on the cusp of breakthrough legislation, with the help of modern technology, we are looking at a future where everyone can access quality, basic estate planning. Now more than ever this technology is needed, as we watch the middle class shrink, and the lower class grow. America needs a way for everyone to be able to exercise their right of disposition of their estate. Not just the wealthy few who can afford to pay hundreds of dollars per hour for a lawyer to custom tailor how their vast array of assets should be distributed, but rather, for the average Joe to be able to direct to whom he would like his modest pool of assets to go, so that he may have a hope that his legacy is left to help propel his next generation to the next step. Electronic wills are the answer to that calling, and they are--with just a few revisions--the future.