A Bibliography of Faculty Scholarship

The purpose of this bibliography is to record in one place the substantial body of scholarship produced by the current faculty at the Catholic University, Columbus School of Law. From its humble beginnings under the tutelage of founding Dean William Callyhan Robinson, through its adolescent period when, like so many other American law schools, it was trying to define its pedagogical niche, to its eventual merger with the Columbus University Law School in 1954, the law school at Catholic University has always retained a scholarly and remarkably productive faculty. The sheer quantity of writing, the breadth of research and the impressive list of law journals that include our faculty among their authors are exemplary. The publishing houses which regularly engage our faculty as authors are likewise impressive. One can certainly appreciate why the Columbus School of Law has been, and continues to be, a leader among law schools in scholarly research and writing

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))

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

Panel 1: Rights, Remedies, and Rules of Decision

Panel 1: Rights, Remedies, and Rules of Decision Moderator: Dean Megan La Belle, Senior Associate Dean for Academic Affairs, Catholic Law Panelists: Professor John Harrison (University of Virginia School of Law) and Professor Natalie Schmidt (Catholic Law

Introduction

The Catholic University Law Review proudly held its Spring 2025 Symposium, titled Traditional Judicial Power & Doctrinal Development, bringing together distinguished legal scholars, practitioners, and students to explore the relationship between judicial power and the evolution of legal doctrine. The event took place on March 28, 2025, at The Catholic University of America Columbus School of Law. This thought-provoking Symposium examined how traditional notions of judicial authority shape the capacity of courts to influence, moderate, or even prevent changes in legal doctrine. Panelists and speakers presented cutting-edge research, offering scholarly insights into this critical area of the law. The presentations will be published in an upcoming issue of the Catholic University Law Review

A Conversation with Judge Stephanos Bibas

The editors of the Catholic University Law Review are pleased to present as our final event of this symposium a conversation with the Honorable Judge Stephanos Bibas. Judge Bibas has served on the United States Court of Appeals for the Third Circuit since 2017. Before joining the federal bench, he served as a professor of law and criminology at the University of Pennsylvania, Law School, and as the director of the Penn Law Supreme Court Clinic. Judge Bibas previously clerked for Justice Anthony Kennedy on the Supreme Court and Judge Higginbotham of the U.S. Court of Appeals for the Fifth Circuit. He’s been described as one of the best writers on the federal bench, and as law students, I know we are all very appreciative of that. But perhaps most impressively, after having seen what it takes to pull off a day like this, he was the symposium editor for the Yale Law Journal

Disregarding Severability

The infirmities of severability doctrine have elicited increased attention at the Supreme Court. In his application of severability doctrine for a five-Justice majority in United States v. Arthrex, Inc., Chief Justice Roberts began to reformulate the doctrine in a way that can free the Court from the misleading mental imagery conjured by the conception of courts as “severing” provisions from a statute. Roberts\u27s reformulation more properly depicts the relevant judicial activity to be judicial disregard of statutory rules to avoid unconstitutional applications of law rather than judicial severance of textual provisions to fix a problem that inheres in the statute itself. The cleanest way to complete the task begun in Arthrex is for a Court majority to explicitly adopt disregard as a replacement for severance. One promising path toward completing the shift from severance to disregard would be through the Court\u27s explicit repudiation of the litigation-expanding technique that William Baude has described as “bank-shot” standing. This technique should instead be recognized and rejected as impermissible “Jenga-loser” standing. Parties should not be able to topple statutes by inviting courts to pull out provisions that do not apply to them

The Human Dimension of “Home”

All societies provide a legal framework that protects the pivotal functions of home and family. None provide a clear legal definition of “home”. Nor, this article argues, can they. “Home” is a concept rooted in the lived experience of human persons. In this article, the second in a series, the author employs the “human dimension” [HDIM] concept, initially developed by the U.S. military and later adopted by the Organization for Security and Cooperation in Europe, as the lens through which one can examine the “human element” of human rights. The framework for this analysis is the “four clusters of value-types” described by Professor Lorna Fox O’Mahoney: home as a physical structure, home as a center for self-identity, home as a social and cultural unit, and home as a territory. It concludes by observing that unpacking the concept of “home” is the logical starting point for a much broader effort to examine the “human dimension” of human rights law and policy in general

A Conversation with Judge Stephanos Bibas

On Friday, March 28th, 2025, the Catholic University Law Review hosted its annual spring symposium: Traditional Judicial Power & Doctrinal Development, which included a conversation between Judge Stephanos Bibas and Professor Kevin C. Walsh. The conversation covered topics such as standing, severability, and preliminary injunctions. This is a transcript of the conversation, and the text appears substantially as it was delivered