Religious Freedom, Jesuit Mission, and DEI

The ability of Jesuit educational institutions to pursue a central part of their mission – that of fostering diverse, equitable and inclusive educational environments – is under attack. This essay outlines several dimensions of their religiously-grounded mission and the reasons to strongly protect from government interference the rights of Jesuit universities to implement programs and practices that align with DEI values. First, for Jesuit universities, these programs and practices are rooted in a much deeper culture of the more than 2,000-year old Catholic intellectual tradition and the now 500-year old tradition of Jesuit spirituality. Second, drawing on the classic work of Alexis de Tocqueville, Democracy in America, this essay highlights the important role that Jesuit universities play in protecting liberty and democracy. Third, a Jesuit university’s control of its curriculum and admissions practices are protected by well-established First Amendment principles, including freedom of religion. In addition, the First Amendment principle of religious freedom also protects Jesuit universities’ ability to have race-conscious programs of student support that advance the Jesuit pedagogic mission. The final section of this essay describes some of the curricular and co-curricular innovations and programmatic offerings at Georgetown University Law Center to illustrate how a Jesuit Law School might advance the Jesuit mission of creating an inclusive environment that supports reflective practices and the free exchange of ideas across differences

\u3ci\u3eHester\u3c/i\u3e’s Dubious Roots and Legacy: Open Fields Doctrine Under Scrutiny

For over a century, open fields doctrine has shaped Fourth Amendment law, denying people the right to be secure on their own property. Its application has steadily expanded, with the result that, by some estimates, the Government can now engage in warrantless surveillance of some ninety-six percent of private land and buildings regardless of fences, postings, the distance from public roads or byways, or the use to which the property is put. An originalist approach throws the doctrine into disarray: at the time of the Founding, common law protected the curtilage, which extended to the fields, barns, storehouses, and other buildings surrounding the home. Yet Justice Holmes’s ipse dixit in Hester v. United States and Chief Justice Taft’s apparent incorporation of curtilage as a substitute for the “home” in Olmstead v. United States planted a doctrine that took root with such ferocity that even the Court’s ostensible shift in Katz v. United States to protecting “people, not places” could not displace it. Despite the ancient doctrine of ad coelum, naked eye and not-so-naked eye doctrine took root. In an age where pole cameras, drones, aircraft, and satellite technologies make persistent monitoring of private property possible, an originalist understanding proves imperative to reclaiming protections against government overreach

Disclosure

This chapter, to appear in the Oxford Handbook of Regulatory Contract Law, examines the law governing factual disclosures between contracting parties. Much of the scholarship addresses whether or when parties have a duty to disclose. Yet many disclosure rules, including the much-discussed nondisclosure defense, do not involve duties proper. In fact, those rules vary considerably in structure, function, and design. Contract disclosure rules fall into two broad categories: disclosure duties, which treat the failure to disclose as a legal wrong, and disclosure responsibilities (what German jurists call “Obliegenheiten”), which attach positive legal consequences to disclosure but do not treat nondisclosure as a violation. Disclosure duties can be further categorized. Specified disclosure duties, which typically apply to consumer and other mass-market transactions, provide detailed guidance regarding both what information to disclose and how to disclose it. Generic disclosure duties, such as the tort of nondisclosure, provide intead broad standards for what gets disclosed, though they importantly often come with strong scienter requirements. Disclosure responsibilities also come in different varieties. Some affect the terms of a contract. The foreseeability (Hadley) rule, for example, provides that a party’s disclosure at the time of formation of probable unusually high losses from breach alters whether they can recover for such losses. Other disclosure responsibilities affect whether the contract is voidable or not. The nondisclosure defense falls into this category. The chapter discusses each variety of disclosure rules. It argues that different types of rules serve very different functions and are for this reason subject to differing design constraints. Perhaps the most radical claim is that the nondisclosure defense is best understood not as an independent defense, but as an important equitable consideration in mistake cases

Accountability for Lawyers and Lawyer-Bashers: Reflections on Wendel\u27s \u3ci\u3eCanceling Lawyers\u3c/i\u3e

This article is part of a symposium on W. Bradley Wendel’s Canceling Lawyers: Case Studies of Accountability, Toleration, and Regret. I agree with Wendel’s two fundamental claims: first, and contrary to the reigning conception, lawyers can be held accountable for choosing to represent a particular client (assuming they have a choice), and therefore that they cannot use their professional role as a “magic shield or force field” (Wendel’s term) to deflect all criticism. Second, however, there is also an ethics of blaming, and critics who blame lawyers irresponsibly can themselves be blamed. One of Wendel’s examples is lawyers who chose to represent convicted sexual predator Harvey Weinstein, and this paper examines some complications in his analysis of the example. It next examines Wendel’s analysis of who has standing to hold lawyers to account – only those in the affected community, or the public at large? Wendel is undecided, but leans toward the former. I argue for the latter, with two caveats: first, that the ethics of blame includes a heavy responsibility of due diligence on the part of the blamer, and second, that the due diligence requirement becomes more onerous the wider the audience of the blame. (It is minimal if a blamer keeps their criticism to themself or confines it to a small circle of friends; it is maximal if the blamer plasters it all over social media.) The paper next takes up Wendel’s example of law students calling on their classmates to boycott law firms whose clients contribute to climate change. In its final section, it discusses Wendel’s defense of Big Law lawyers who filed non-frivolous lawsuits in the Trump campaign’s 2020 efforts to overturn the presidential election. He distinguishes them from the “outlandish” efforts of Sidney Powell, Lin Wood, and Rudolph Giuliani. I take a dimmer view of the Big Law efforts, arguing that all the lawsuits must be viewed holistically as an assault on democracy

Beyond the Ivy League: Stopping the Spread of Antisemitism on American Campuses: Hearing Before the H. Comm. on Educ. & the Workforce, 119th Cong., May 7, 2025 (Statement of David D. Cole)

In this testimony, submitted to the House Committee on Education and the Workforce for a hearing on antisemitism on campus, I sought to offer a legal framework for considering antisemitic speech on campus. The testimony cautions against equating criticism of Israel with antisemitism. But more importantly, it notes that even where speech is actually antisemitic, it is generally protected by the First Amendment (and therefore also protected by private university policies that protect free speech on campus). Title VI of the Civil Rights Act does not prohibit antisemitic speech, even virulently antisemitic speech. It prohibits discrimination on the basis of Jewish or Israeli identity. But antisemitic speech is not necessarily discrimination. Individually targeted harassment can constitute discrimination. But where speech is not targeted at an individual, it constitutes discrimination only if it is so “severe, pervasive, and objectively offensive” that it denies students equal access to education. Those are very high bars. Most speech criticizing Israel or supporting the Palestinians at a campus protest will not meet either bar, and to that extent federal antidiscrimination law has nothing to say about it. And even if student speech does constitute discrimination, the university is only responsible if it is “deliberately indifferent” to that discrimination. If it has a complaint procedure, considers, investigates, and adjudicates credible complaints, and imposes some sanction where it finds that the facts support the complaint and rise to the level of discrimination, it is not “deliberately indifferent.” Thus, to determine whether a school has actually violated Title VI, it is not enough to accept complaints as true. It requires careful assessment of the facts, often in a hearing in which competing accounts can be considered and the truth can be ascertained. The hearings conducted by the House Committee on Education and the Workforce have not been a serious or even a good faith effort to ascertain facts and apply the legal standards. They have instead been more akin to the McCarthy era hearings of the House Committee on UnAmerican Activities. That approach does nothing to solve the problem, and risks chilling speech and interfering with academic freedom

The US-Ukraine Strategic Minerals Partnership in the Wake of Russia’s War of Aggression

Russia’s full-scale invasion of Ukraine has prompted not only military and diplomatic responses, but also novel forms of international agreements centered on co-investment in resources and infrastructure. This essay examines the “minerals deal” between Ukraine and the United States. The agreement establishes a joint venture for investment in mining, hydrocarbons, and infrastructure in Ukraine. Although the key details are set forth in a Limited Partnership Agreement (LP Agreement) that remains undisclosed, insights can be drawn from the publicly available Agreement on the Establishment of a United States–Ukraine Reconstruction and Investment Fund (UURIF), official statements, a leaked draft of the LP Agreement, and interviews. This essay analyzes the deal’s implications for both Ukraine and the United States, as well as for broader questions of international law and global economic governance. It argues that the arrangement marks a shift toward a more transactional model for U.S. assistance where the United States requires the opportunity by contract to obtain stakes in a country’s resources in exchange for U.S. aid, military support, and financing. The essay highlights transparency issues, as neither the United States nor Ukraine have made public the LP Agreement

The Scope of the Prior Art

The courts and the U.S. Patent and Trademark Office (“USPTO”) assess whether an invention may be patented by comparing it to the state of the art, which the patent community terms the “prior art.” Heavily influenced by Oliver Wendell Holmes Jr. and Learned Hand, and more recently expanded by the America Invents Act, the Patent Act features the broadest definition of prior art in U.S. history. No matter how remote, evanescent, or obscure, any activity or publication that occurs one day before the inventor files a patent application—anywhere in the world—may prove patent-defeating. The government also holds patent proprietors accountable for information it deliberately withholds from the public. The USPTO maintains pending patent applications—including information on climate change mitigation, public safety, life-saving medications, and other inventions of extraordinary social significance—in confidence for at least eighteen months and possibly far longer. Collectively, the agency withholds patent applications from the public for a duration of over one million years, each and every year. Yet this body of information, held in secrecy at a time when its disclosure would prove of greatest value, qualifies as prior art as of its fling date. Patent law’s prior art definition poorly serves innovation policy. It extends inefficient patent races, and it adds to the persistent concern that USPTO examiners fail to identify the most relevant prior art when deciding whether to approve a patent or not. Worse yet, judicial invalidation of issued patents hinges upon a story in which innovative firms should have taken existing knowledge into account before engaging in their own research and development efforts. Proprietors of invalidated patents are deemed to have acted inefficiently and endeavored to pilfer the public domain by obtaining propriety rights in old inventions. This account simply does not hold where only the most exhaustive, financially unconstrained search could unearth secluded activities in distant lands, where members of the public could not discern secret prior art maintained by the USPTO under any legitimate circumstances, and where the USPTO has no realistic way to research the full scope of the prior art

Digital Regulation and Development: A Global Micro and Macro Comparison

Regulation of the digital economy is receiving increased attention both domestically and internationally, but too little scholarship exists assessing the degree to which these new rules effectively support economic, social, and sustainable development. This Article advances a micro-macro framework for assessing digital regulation and its development dimension, including digital inclusion and measures to address the digital divide, the protection of human rights, and the operationalization of the United Nations’ Sustainable Development Goals. In doing so, it incorporates a “micro international law” methodology to compare domestic legal design features and trace their diffusion into regional trade agreements and, in turn, into soft law and multilateral instruments. Domestic law has been an important driver of legal change in areas like data privacy, human rights, digital infrastructure, and access to finance. In many cases, domestic law has influenced rules at a regional level, highlighting how micro approaches can flow upward to influence more macro-level rules. Trade agreements increasingly integrate new approaches in development-focused digital regulation as well, including the recent trend to include provisions on digital inclusion, such as those that appear in the Digital Economy Partnership Agreement, the New Zealand-United Kingdom Free Trade Agreement, and Digital Trade Protocol to the African Continental Free Trade Area Agreement, among other instruments. Across these emerging trends, some promising variation in bottom-up legal diffusion is apparent, suggesting that legal innovations may stem from a range of national sources. However, both domestic law and trade agreements contain notable gaps in linking digital rules to social and sustainable development. These include insufficient data privacy protection, incomplete approaches to artificial intelligence, and piecemeal focus on digital infrastructure and the digital divide. Sustainability in the digital realm is an even more amorphous concept, and current national and regional rules largely overlook both environmental and social gains and losses resulting from increased digital activity. This Article explores domestic, regional, and international digital rules in the context of economic, social, and sustainable development, highlighting innovations in domestic law and trade agreements, along with alternative “micro” interventions, for future study and scaling

Law Librarians as Content Preservers and Mediators for Modern Legal Researchers

Even though libraries have existed for thousands of years, one must wonder what role law libraries play and, more importantly, what roles law librarians play in supporting students, faculty, lawyers, and judges with so much information now available online? What value do law librarians add for today’s legal researchers? At their core, law librarians continue to strive to perform two major functions: (1) “select, organize, and preserve legal information” and (2) help lawyers, judges, students, and faculty locate and use that information. This article hopes to explain just why it is important that law librarians continue to serve in these roles and how they are serving these roles for students, faculty, lawyers, and judges

The Moving Pieces of Corporate Disclosure: Truth, Falsity, and Half-truths in Between

The half-truth doctrine is made operational in the common statutory and rule-based admonitions in the securities laws (particularly Rule 10b-5) not to omit “material fact[s] necessary in order to make . . . statements made . . . not misleading . . . .” It cabins the temptation to exploit the privilege of nondisclosure through what has been called “artful paltering.” Unfortunately, the evolution of the half-truth doctrine has become more of a poor stepsister than a muscular companion. It carries less than a full load in the complex ecosystem that exists for public company disclosure today. And it is woefully undertheorized and widely misunderstood. To this end, this article traces duty as it has developed so haphazardly in the Supreme Court, showing how the Court may have missed opportunities to do better. Our attention will mainly be devoted to a recent 2024 case (Macquarie), which is bookended by the Court’s initial effort to describe the doctrine as it applies to statements of opinion (Omnicare) and its ill-fated effort to address the temporal dynamics of risk disclosure (Facebook)