Panel 2: Wearable Devices and Data Privacy Concerns

McKenna gave a brief overview and introduction to some of the types of wearable devices, as well as some of the data being collected by the companies that own them. She also touched on the concerns surrounding the security of the data being collected. Following her overview each panelist introduced themselves and shared their views. Bedestani again took to the podium and moderated the discussion with a series of questions. Panelists: Kevin Frazier, Clerk, Montana Supreme Court, Chief Justice Mike McGrath; Anne Toomey McKenna, Visiting Professor University of Richmond, School of Law • Penn State Institute for Computational & Data Sciences (ICDS), Affiliate Faculty • 2023 Chair, AI Policy Committee, and Chair, Privacy, Equity & Justice in AI Sub-Committee • ToomeyMcKenna Law Group, LLC, Principal Counsel & Managing Partner; and Razvan E. Miutescu, Partner, Whiteford Taylor Preston LL

Bruen and Beyond: The Future of Tiers of Scrutiny in Constitutional Analysis

The Federalist Society and The Law and Public Policy Program (LPP) at The Catholic University of America Columbus School of Law (Catholic Law) hosted Professor J. Joel Alicea, Co-Director of the Project on Constitutional Originalism and the Catholic Intellectual Tradition, the evening of Wednesday, April 12, 2023. Alicea discussed the future of the “tiers of scrutiny” method of constitutional analysis in light of the Supreme Court’s decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen. In his presentation, Alicea explained the tiers of scrutiny, arguing that, following Bruen, the Court will likely reject this method in other areas of constitutional law. He additionally provided reasons for why the Court, in his view, should continue rejecting the tiers of scrutiny

Strings Are Attached: Revealing the Hidden Subsidy for Perpetual Donor Limits on Gifts

Charitable gifts often come with strings attached. Donors limit their gifts in many ways, by restricting an asset’s use or purpose, controlling the timing of spending (as in an endowment), securing naming rights, or by retaining effective control over the distribution or investment of the asset by giving to a charitable intermediary such as a donor advised fund or private foundation. Most donor limits are perpetual in nature and a form of dead hand control. The Article explains that default rules strongly favor donor limits. Property law allows donors wide latitude to place limits on gifts, and they are easy for donors to impose. Once imposed, donor limits typically are extremely hard for charities to eliminate, as obedience to the donor’s intent is a priority in the law. Federal tax rules also favor donor limits by treating most donor-limited gifts the same as unrestricted gifts for purposes of the income and estate tax charitable deductions. As a result, donor limits are common, and burden a substantial portion of charitable assets. The Article finds based on a review of Form 990 data that, for 96 of the leading charities in the U.S., 69% of their $474 billion in net assets are subject to donor limits. For the 17 private universities in this group, 68% of the total endowment is donor limited. There is thus a substantial, hidden tax law subsidy for donor limits on gifts, yet one that entails many harms, including to the public interest, charitable autonomy, pluralism, constraining access to resources, compliance costs, and subsidizing gains to donors. Given these harms, the Article considers tax reform options for donor limited gifts. These include treating donor limits as retained rights or as return benefits (thus reducing the charitable deduction to account for limits), estate tax reform to discourage giving to intermediaries, encouraging unrestricted gifts from intermediaries, and not subsidizing donor limits in connection with any new giving incentive, such as a nonitemizer deduction or charitable giving credit. Under any of the reform approaches, the power of donors to impose limits would not change. But charity, and society, would be relieved from some of the costs of the dead hand

Mysterizing Religion

In this short essay, I suggest that mysterizing religion may change the stakes in some of the most controversial contemporary conflicts in law and religion. To mysterize (not a neologism, but an archaism) is to cultivate mystery about a subject, in the sense described above-to develop and press the view that a certain subject or phenom-enon is not merely unknown, but unknowable by human beings. At the very least, such mysteries are unknowable by those human beings who have charge of the secular legal order of earthly human affairs, Paul\u27s princes of this world. That is what I propose to do for religion in American law, and what may well alter the landscape of the conflicts between advocates of religious liberty and the forces opposing them. Fortunately, I have had some help. The mysterization of religion seems already to be well under way in American constitutional law. It is a central feature of the Supreme Court\u27s current conception of religion. Religion\u27s mysterization, therefore, may be as much an exercise in the description of portions of the law as it now is, as a prescriptive project about what that law should become

Toothless Trade? Implications of the Federal Circuit’s ClearCorrect Decision for the Enforceability of Intellectual Property Protections in Digital Trade under USMCA

Digital trade is growing faster than trade in goods and services and comprises a key area for innovation and intellectual property concerns. The United States-Mexico-Canada Agreement (“USMCA”) acknowledged this development by including chapters devoted to both digital trade and intellectual property. In 2015, the Federal Circuit held that the International Trade Commission (“ITC”) does not have jurisdiction over unfairly traded digital goods. Without exclusion orders issued by the ITC, the United States lacks a powerful tool to enforce the USMCA provisions protecting intellectual property in unfairly traded digital goods. This comment explores the implications of the Federal Circuit’s 2015 ClearCorrect decision for the United States’s enforcement obligations under USMCA and provides options to intellectual property rights holders and practitioners interested in protecting the domestic industry’s digital goods from intellectual property rights infringement

Property and Moral Responsibilities: Some Reflections on Modern Catholic Social Theory

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

Growing in Faith: Embracing Christ\u27s Cross in the Middle of the World

The Catholic University Columbus School of Law (Catholic Law) held on Thursday, October 12, its first Faith in Action lecture of 2023-24 academic year. Visiting Catholic Law by invitation of Elizabeth Kirk, Director of the Center for Law and the Human Person, Luis E. Perez, first Deputy Director of Enforcement at the Office for Civil Rights at the United States Department of Health & Human Services, engaged students with discussion about how his faith impacts his vocation in law. Mr. Perez’s remarks were given in his personal capacity and do not necessarily represent the views of any agency of the United States