A Conversation with Justice Clarence Thomas

The Center for the Constitution and the Catholic Intellectual Tradition (CIT) opened its academic year of programming by hosting a conversation with a Supreme Court Justice. On Thursday, September 25th, CIT welcomed Justice Clarence Thomas to address faculty, students, and alumni of Catholic Law. The conversation was moderated by CIT Affiliated Fellow Jennifer Mascott, an Associate Professor of Law with Catholic Law, nominee for the U.S. Court of Appeals for the Third Circuit, and a former law clerk for Justice Thomas. Prof. Mascott then began the conversation with Justice Thomas on a personal note of admiration, praising his “warmth and heart for people of all walks of life,” as well as his tremendous jurisprudential impact. Catholic education quickly became a central theme of the conversation, as the Justice described both his upbringing and his approach to law. He attributed his career and success to the nuns that taught him–“my nuns,” as he referred to them. “It’s their victory.” He described how their perseverance, as well as his grandfather’s example of faith and gratitude, instilled in him a disposition of humility that defines his service on the Supreme Court

The Limits of Tradition: \u3ci\u3eCounterman\u3c/i\u3e, True Threats, and the Categorical Approach to Free Speech

Tradition is in vogue.[1] Across a wide variety of areas, the Supreme Court has embraced “history and tradition” as its primary methodology for determining the meaning of constitutional provisions.[2] Recently the Court has even suggested that a restriction on the use of names in trademarks could rest entirely on its traditional status,[3] but nowhere has this move toward tradition been as robust or longstanding as in the speech context. Since the 1940s, the Supreme Court has invoked tradition to defend content-based or categorical restrictions, and more recently, it has purported to rely exclusively on tradition.[4] The language The Court has used to the Supreme Court uses to describe its reliance on tradition as a justification for categorically prescribing some forms of expression is unequivocal: “From 1791 to the present . . . [w]e have recognized that ‘the freedom of speech’ referred to by the First Amendment does not include a freedom to disregard these traditional limitations.”[5] [1] See Marc O. DeGirolami, Something Other Than Originalism Explains This Supreme Court, N.Y. Times (Mar. 29, 2024), https://www.nytimes.com/2024/03/29/opinion/supreme-court-originalism-tradition.html [https://perma.cc/66A4-E26R]. [2] See id; see generally N.Y. Pistol & Rifle Ass’n v. Bruen, 597 U.S. 1, 17 (2022) (holding that a history and tradition methodology would be utilized in Second Amendment cases); Mallory v. Norfolk Southern Ry., 600 U.S. 122, 140 (2023) (holding that traditional methods of establishing personal jurisdiction are not displaced by the minimum contacts framework); Vidal v. Elster, 602 U.S. 286, 301 (2024) (holding that “history and tradition is sufficient to conclude that the names clause—a content-based, but viewpoint-neutral, trademark restriction—is compatible with the First Amendment.”). [3] Vidal, 602 U.S. at 301. [4] Chaplinsky v. New Hampshire, 315 U.S. 568, 571-73 (1942); United States v. Stevens, 559 U.S. 460, 468 (2010). [5] R.A.V. v. City of St. Paul, 505 U.S. 377, 382-83 (1992) (quoting Roth v. United States, 354 U.S. 476 (1957))

An Impossible Task: Enforcing Disclosure Requirements In A Multi-Billion Dollar Industry

Users of the first global social network, MySpace, could have never imagined that a mere twenty years later, teenagers could be millionaires making thirty-second videos out of their parents’ basement. Social media platforms have blossomed and advanced to an unpredictable level in a short amount of time. The growth of TikTok, surpassing one billion users, has been one of the most substantial contributors to the change in landscape.[1] In 2025, “social media influencers” come in all shapes and sizes.[2] Social media users can scroll through Instagram reels and stumble upon their fellow PTA member, co-worker, or grandmother promoting a Maybelline mascara, Dyson vacuum, or Athletic Greens Powder. One likely trusts a vacuum recommendation from their grandmother, but does that trust dwindle if you find out grandma was paid to promote that product? [1] Jessica Bursztynsky, TikTok Says 1 Billion People Use the App Each Month, CNBC, https://www.cnbc.com/2021/09/27/tiktok-reaches-1-billion-monthly-users.html (Sept. 27, 2021, 11:49 AM) [https://perma.cc/ZT89-VCBK]. [2] See Top Social Media Influencer Legal Issues, Couns. for creators (Nov. 21, 2022), https://counselforcreators.com/log/top-legal-issues-for-influencers/ [https://perma.cc/YP8Y-PKX9] (defining social media influencers as “digital creators with large followings that regularly create and offer content that educates, entertains, or engages their audience[;] . . . . use their platforms to set trends, increase their popularity, and often change popular social media culture[;] . . . . [and] serve as valuable assets for any company looking to advertise or market their brands using popular platforms.”)

Cutting Through the Gordian Knot: It’s Time to Revise Rule 17d-1 Under the Investment Company Act of 1940

This article reviews the legislative and administrative history of Section 17(d) of the Investment Company Act of 1940 and Rule 17d-1 under that Section, which broadly prohibit any affiliated person or principal underwriter of a mutual fund or other registered investment company (a “Fund”) or any affiliated person of such a person or underwriter, from participating in a joint transaction with the Fund unless an application regarding the transaction has been filed with and approved by the SEC. The author maintains that the Rule’s scope is far broader than what is necessary to achieve the statutory purpose of protecting Funds and their shareholders from being unfairly taken advantage of by Fund insiders. The article proposes that the SEC amend to the Rule to allow transactions with affiliated persons who are not connected with management of the Fund, relying on a Fund’s independent directors to protect the interests of the Fund and its shareholders

Informing Choice: The Role of Adoption in Women’s Pregnancy Decision-Making

In the wake of the Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization, the authors of this Article offer a practical, collaborative response to a seemingly intractable, divisive issue. Kirk and Hanlon draw on their academic expertise in law and social science, respectively, to address the paradox of the general esteem for the institution of adoption alongside the rarity with which adoption is chosen. In this Article, they examine social science data and literature on women’s pregnancy decision-making in order to explain the need for laws and policies that promote informed choice. They introduce never-before-published survey data and analysis from the largest study on birth mothers’ decision-making and coercion experiences and aggregate and analyze existing social science studies of pregnancy decision-making regarding adoption. Finally, they conducted a comprehensive fifty-state survey of abortion-specific informed consent laws and propose a reform, consistent with the principles of autonomy and self-determination, recommending that states require disclosure of information about adoption so that women receive accurate and sufficient information in order to make a fully informed, free decision

Smart Contracts Are Neither Smart Nor A Contract: The Case Against Smart Contract Utilization in Everyday Consumer or Commercial Transactions

No doubt, most of us have gone into a local electronics store or ordered a new gadget from an online provider. After purchasing the gadget, we are eager to start operating the new purchase. Before fully utilizing the gadget, however, there are a series of screens requiring the user to read, acknowledge, and consent to, various clauses. If this process is not completed, the user is denied full access to the gadget. Thereafter, entry is granted, and the user is free to utilize the electronic device. This is a prime example of utilizing technology to automate a process that would have previously required human intervention. Technology is driving innovation all over the world. Artificial intelligence, quantum computing, 3D printing, and augmented reality are examples of massive technological innovations that have not only captured our imaginations, but also stand to change business and popular culture in our society. One class of innovation gaining momentum revolves around blockchain. Blockchain is a method of recording information, in a secure manner, on a peer-to-peer network.[1] Essentially, it is the equivalent to a publicly shared spreadsheet or database in which entries can be added, but not altered.[2] Each discreet entry contains encoded information about previous entries as the blockchain starts to grow.[3] Blockchain technology is a foundational element for digital assets. Digital assets are also known as cryptocurrencies, tokens, crypto assets, tokenized assets, security tokens, non-fungible tokens, and central bank digital currencies.[4] Notably, “digital asset[s] [are] created . . . when new information is added to a particular blockchain.”[5] Blockchain entries, known as blocks, allow for the exchange of existing digital assets and the creation of new assets.[6] With all these technological advances, there is a lot to consider. What happens, though, when these types of technological innovations meet old school business methods? [1] A.J. Bosco, Blockchain and the Uniform Electronic Transactions Act, 74 Bus. Law. 243, 243-44 (2018). [2] See id. (“Most basically, it is a digital database consisting of a continuously growing list of records, called blocks. These blocks of data are chained together using cryptography, making it difficult to rewrite the older records. Further, a blockchain and the data on it can be simultaneously used and shared within a large, decentralized, publicly available network. Importantly, it allows information to be stored and exchanged without any central authority or need for third-party verification.”). [3] Id. at 243. [4] Demystifying Cryptocurrency and Digital Assets, PwC, https://www.pwc.com/us/en/tech-effect/emerging-tech/understanding-cryptocurrency-digital-assets.html [https://perma.cc/V6AC-YGSQ]. [5] Id. [6] John Gordon, Emerging Technologies and Lagging Laws: Article 12 and the UCC’s Attempt to Commercially Incorporate the Rapidly Changing World of Digital Assets, 56 Ind. L. Rev. 417, 421 (2023)

Virginia\u27s Congressional Districts Are Unconstitutional

The Elections Clause in Article I of the U.S. Constitution provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” This Essay will show that Virginia\u27s current congressional districts were not established in compliance with the Elections Clause. These congressional districts were prescribed by the Supreme Court of Virginia, not by “the Legislature” or by any other body exercising legislative power to establish districts. Because judicial power is the only power that the Supreme Court of Virginia possessed when it purported to establish Virginia\u27s current congressional districts in 2021, those districts are unconstitutional under the Elections Clause

The Analytical Compass: A Study of State Voter Identification Requirements and Combatting Election Fraud

Catholic Law\u27s Student Scholars Series presented its first installment on January 27 with a presentation by Abby DiOrio (3L). Her scholarship, entitled The Analytical Compass: A Study of State Voter Identification Requirements and Combatting Election Fraud, examined laws governing photo-ID mandates and the presence of additional statutes encumbering access to the ballot box. Troy McCurry, Esq., Director of Government Relations Compliance at The Pew Charitable Trusts, provided the response to DiOrio\u27s presentation. In her abstract, DiOrio analyzes states in the 5th and 9th Circuit and their efforts to prevent voter fraud. The Note emphasizes the exponential gravity of voter laws as elections become increasingly polarized, narrow, and controversial. With this magnitude in mind, “The Analytical Compass,” synthesizes key traits: (1) photo identification stringency, (2) additional voting obstacles, and (3) election-related convictions. The Analytical Compass reflects a linear regression, modeling a strong relation between stringent ID requirements and presence of other regulatory obstacles. However, it also depicts a consistent ratio of election fraud convictions, despite the varying severity of each state law. This suggests that harsher voting laws are not necessarily more successful in preventing voter fraud. The Columbus School of Law Student Scholars Series was instituted in 2009 to recognize notable legal scholarship produced by members of the student body during the academic year and to foster the skills associated with presenting and defending that scholarship in a professional conference-style setting