Deference and Discretion in Bank Regulation

The U.S. Supreme Court’s decision in Loper Bright Enterprises v. Raimondo, which overturned the Chevron doctrine of judicial deference to administrative agencies’ interpretations of federal statutes, will impact future regulatory policy. The shape of that impact is less certain. Using bank regulation as a vantage point, this Article explores how the end of Chevron may influence legislative and regulatory outcomes. Through case studies, the Article contextualizes the impact of Chevron within the bank regulatory regime’s complex ecosystem of technical expertise, political influence, and industry capture. The dismantling of New Deal restrictions on banks’ activities illustrates how Chevron may have enabled deference to regulators captured by industry interests rather than motivated by the public interest. This history provides some reason to celebrate, rather than dread, the end of Chevron. Moreover, federalism interests and explicit statutory delegations of discretion have historically muted the impact of Chevron. For these reasons, the policy impact of Loper Bright will likely be mixed and not necessarily profound

The Assault on American Labor Law

The National Labor Relations Act (NLRA), signed into law by Franklin Delano Roosevelt in 1935, guarantees the right of private sector employees to organize into trade unions, engage in collective bargaining, and take collective action such as strikes. Since its passage, the NLRA has functioned as the foundational statute of United States labor law. Opposed by conservatives and members of the Republican Party from the beginning, its provisions were largely upheld by the Supreme Court until the 1960s. In the latter part of the twentieth century and into the twenty-first, however, the Court began to erode the protections of the NLRA. While some cases have received widespread attention from commentators and scholars, such as Starbucks Corp. v. McKinney (2024), there have been numerous detrimental rulings that are little discussed. Taken as a whole, the Supreme Court’s efforts to undermine the NLRA appear sustained and systematic. By examining approximately 100 cases, Hartley demonstrates that the Court has often operated more like a legislature than a judicial body, effectively amending the NLRA’s collectivist policy underpinnings in favor of the interests of individuals and businesses. These judicial decisions create staggering obstacles for American workers to collectively organize and force them to face globalization, deindustrialization, and technological change individually, without the negotiating leverage provided by union representation. While scholars have suggested individual reforms to re-establish the efficacy of the NLRA, Hartley’s thorough study illuminates how the current crisis in US labor law evolved—a comprehensive view that is necessary to help restore the rights of workers to unionize.https://scholarship.law.edu/fac_books/1153/thumbnail.jp

The Challenges Facing Academic Freedom and Free Speech

There are growing challenges to free speech and academic freedom on American college campuses. There is pressure from both the political left and the political right to suppress controversial speech on campus, and there are calls to restrict speech that come both from members of the campus community and from those beyond the campus gates. In this difficult environment, it is essential that academics both understand the principles of academic freedom and campus free speech and work to advocate for them

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

Delivery Drivers Deserve the Whole Package: Package Delivery Drivers and the Transportation Worker Exemption of the Federal Arbitration Act

Package delivery is a ubiquitous part of modern American life, and package delivery driving is a fast-growing occupation in the United States. These drivers work long hours in a fast-paced, highly regimented environment, and because of arbitration agreements they are made to sign, they often cannot go to court to settle disputes with their employers. Under the Federal Arbitration Act (FAA), these arbitration agreements are generally “valid, irrevocable, and enforceable.” However, the FAA includes an exemption (known as the “Transportation Worker exemption”) that excludes arbitration agreements in “contracts of employment for seamen, railroad employees, or any other class of worker engaged in interstate commerce.” The Supreme Court has previously held that this exemption is “limited,” and only applies to transportation workers with a direct link to interstate movement. There is a circuit split around whether package delivery drivers fit into the exemption. The First and Ninth Circuits decided that package delivery drivers fit into the exemption based on a historical understanding of the FAA that embraces Supreme Court precedents from related statutes that more broadly define the boundaries of “engag[ing] with interstate commerce.” In contrast, the Fifth Circuit adopted a strict interpretation of the FAA and held that these drivers do not fit into the Transportation Worker Exemption. This Comment will argue that a broader historical understanding of the FAA is consistent with the scope and purpose of the statute and that package delivery drivers qualify for the exemption

“Tap” into Clean and Safe Water: A Look into the Future of Underinvested Water Infrastructure in Region 4

Mixon notes that under the Biden Administration, federal funding for environmental justice communities burdened by underfunded water infrastructure became a key priority in national policy. However, accessing these resources remains a challenge in EPA Region 4. The historical and contextual foundations of environmental justice and water infrastructure issues in the United States. It examines how, and whether, funding from the Inflation Reduction Act and the Bipartisan Infrastructure Law address these barriers. Two case studies in Jackson, Mississippi, and Lowndes County, Alabama are used to illustrate the real-world impact of systemic underinvestment. The Comment concludes cautiously optimistic, noting that while challenges remain, new programs offer hope for meaningful reform

Kickbacks in the Healthcare Space: Resolving the Causation Split

A three circuit split has left federal courts around the country struggling to find and apply the correct causation standard when faced with a False Claims Act suit which has been brought by way of the Anti-Kickback Statute. Uncertainty was created after one court found a lesser standard of causation was acceptable between the kickback and the false claim, while other courts found “but for” causation was required for these cases to survive. This comment analyzes the decisions of the relevant courts, as well as the common law origins of the False Claims Act, canons of construction, as well as relevant prior cases. This comment also analyze this current controversy being played out within a separate circuit, which has been faced with both methods and will soon resolve the issue. These analyses will culminate in the decision that, due to principles of statutory interpretation, previous holdings by numerous courts, as well as the plain meaning of the law, “but for” causation is required in these actions. Requiring “but for” causation does not open the floodgates for healthcare fraud, rather provides clarity when patient’s lives are on the line

What Mother Teresa Taught Me About Life and Being a Lawyer

On September 17, Catholic Law welcomed Jim Towey, Founder and CEO of Aging with Dignity, for an insightful Faith-in-Action discussion. The Faith-in-Action lecture series is an initiative of Catholic Law’s Center for Law and the Human Person. It is designed to offer students living examples of lawyers who witness to their faith through their vocation to law. In his lecture, What Mother Teresa Taught Me About Life and Being a Lawyer, Towey shared lessons from his time as a trusted legal advisor to St. Teresa of Calcutta. Jim Towey was legal counsel and close advisor to Mother Teresa of Calcutta for 12 years and did the first reading at her Mass of Canonization in St. Peter’s Square. He has been pro bono legal counsel to the Missionaries of Charity for 40 years. He previously headed the White House Office of Faith-Based and Community Initiatives under George W. Bush for four years and served on his senior staff

Family Law in Perspective, 6th Edition

The Sixth Edition of the Perspectives book continues the focus of providing students, practitioners, and observers with insight into the ever-changing parameters of laws pertaining to family structure and responsibilities. Specifically, this book addresses, among other topics, nonmarital cohabitation, establishment of paternity, premarital and marital contracting, assisted reproductive technology, marriage, and divorce. Recent cases and federal and state statutes address specific topics such as surrogacy agreements, division of marital and nonmarital property upon dissolution of cohabitation or divorce, child support guidelines, and establishing custody rights through parenting agreements or what is considered in the best interest of the child. And there is a continuation of discussion illustrating equal protection, liberty interest, and free exercise in the context of same-sex relationships, the safety of partners and children, and termination of parental rights and possible adoption of minors. The Sixth Edition also explores the impact on abortion of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’ Health Organization, overturning Roe v. Wade. The Perspectives book seeks to provide the reader with a grasp of what is currently the law and a glimpse into where the law may be going

The Failed Experiment of §230 of the Communications Decency Act: How It Facilitates Exploitation and How It Must Be Reformed

Two truths coexist: The Internet has brought with it tremendous changes for learning, connection, and business; and the Internet and other digital platforms have led to an unprecedented exploitation of children on a scale never before imagined. This is due in large part to §230 of the Communications Decency Act – the law which tech platforms have perverted to immunize them from liability for their activity which causes extreme harm. This duality has led to a current vigorous debate about whether this 1996 law has any value in the 21st Century. This article answers that question with a resounding no, by focusing on the issues surrounding child exploitation. It corrects the false argument made by tech in their attempt to redefine §230’s origin as one singularly focused on Internet freedom. This is a false narrative, ignoring the actual context in which §230 became law: child protection. It then makes the case to reform §230 and return it to its original intent, updating it for the 21st Century. Its in depth review of legislative history, historically contemporaneous media coverage from 1996, and tech litigation strategy reveals two facts: (1) §230 was intended in large part for limited immunity to encourage the protection from child exploitation and (2) tech platforms have systematically litigated throughout the country to expand that immunity to de facto near absolute immunity causing massive harm to children. The article then compares the intentions and promises of the law to the present day climate regarding child exploitation on the Internet, specifically focusing on the problem of Child Sexual Abuse Material (CSAM) – also known as child pornography. Observing the cavernous fissure between one of the main purposes of §230 and the reality of online child exploitation it argues that the need to reform §230 and return it to one of its original purposes is now. This article argues that need is prescient not only because of the grave reality of CSAM online, but also because of one of the very intentions behind §230 – to protect children. The article examines recent legislative proposals to address the problem of CSAM, and proposes a new solution that returns Section 230 to its origins, reverses tech platforms’ false narrative, updates §230 for the current world, and offers a path forward toward the protection of children