The Lord Is My Strength and My Shield: The Ecclesiastical Abstention Doctrine in In re Diocese of Lubbock

This Case Note will address the ecclesiastical abstention doctrine in In re Diocese of Lubbock. In In re Diocese of Lubbock, the Supreme Court of Texas held that the ecclesiastical abstention doctrine applied and barred the 237th District Court from hearing and ruling upon a defamation suit that involved Deacon Jesus Guerrero and the Diocese of Lubbock: “[T]he substance and nature of [Deacon Jesus Guerrero’s] claims against [the Diocese of Lubbock] will necessarily require the trial court to evaluate whether the Diocese properly applied Canon Law and are inextricably intertwined with the Diocese’s internal directive to investigate its clergy.” In effect, the Supreme Court of Texas showed deference to the Diocese of Lubbock and the Roman Catholic Church in the suit. Part I of this Case Note provides some background information on the application of the ecclesiastical abstention doctrine and neutral principles in prior case law. Parts II and III review the factual background, procedural history, and holding of In re Diocese of Lubbock and emphasize the dissent from Justice Boyd. Part IV discusses why the Supreme Court of Texas should have permitted the application of neutral principles to the defamation suit; not only could the civil courts have made a judgment secular in nature, but they also could have done so without any entanglement in religious doctrine, faith, or the internal affairs of the Diocese of Lubbock. Finally, the Conclusion reiterates the consequences of civil courts failing to apply secular, objective, well‑established legal concepts to disputes involving religious organizations and appeals to such courts to say “what the law is.”

Takings Property and Appropriative Water Rights

The Takings Clause of the Fifth Amendment to the United States Constitution provides that “private property [shall not] be taken for public use, without just compensation.” While courts and academics have put considerable amounts of effort into discussing the meaning of “taken” or “public use,” they have given far less attention to the phrase “private property.” Notable scholars have provided a set of definitions and frameworks to determine when a particular right qualifies as takings property. However, courts and commentators have yet to define the types of rights that are entitled to constitutional protection with sufficient precision to avoid an inconsistent and inefficient application of the Takings Clause.
This Article argues that, while these definitions of takings property lead to sound and consistent outcomes when applied to traditional rights such as a fee simple absolute or an easement, they produce underwhelming results when tested against less conventional interests. The Article assesses how these frameworks perform with a property interest as elusive as appropriative water rights and provides broader lessons about both takings property and water law. First, it becomes apparent that the existing literature and court opinions have unreasonably sanctified rights in land while decrying other types of interests as non-property by applying inconsistent standards. Second, the analysis of these existing frameworks reveals some critical shortcomings in their design that had not yet been described. To address these issues, this Article proposes a solution that harmonizes some of the central components of existing takings property definitions.

Thaler v. Vidal: Artificial Intelligence—Can the Invented Become the Inventor?

For the first time in the history of American patent law, an artificial intelligence (AI) machine has forced the United States Court of Appeals for the Federal Circuit to determine the validity of AI inventorship on a U.S. patent application. Although the Federal Circuit has consistently held that inventors must be natural persons, Dr. Stephen Thaler, the creator of DABUS, a “Creativity Machine” that has generated two inventions without the aid of a human, has set out to challenge the way the world sees inventorship and innovation today. Presented with this case of first impression, the United States District Court for the Eastern District of Virginia and the Court of Appeals for the Federal Circuit, as well as courts and patent offices of South Africa, Australia, the United Kingdom, and Europe, have been asked to answer the question: “can an artificial intelligence machine be an ‘inventor’” under the law?

The Implications of New York’s Gender Expression Non-Discrimination Act for Transgender Housing in Prisons

Introduction The following paragraphs contain descriptions of assault and sexual violence and may be triggering to those who are survivors of such violence. To avoid reading these descriptions, please skip to paragraph four of this Part, which can be found in the middle of page 104. In 2012, Ashley Diamond (Ashley), a forty-two-year-old transgender woman, was taken into custody by the Georgia Department of Corrections (GDOC). She was diagnosed with gender dysphoria at age fifteen and had been taking hormones… Read More

Corrupt or Charitable? Patient Assistance Programs and the Case for Narrowing the Breadth of the Federal Anti-Kickback Statute

Consider the following hypothetical involving two fictional pharmaceutical companies: LifeSaving Devices Inc. and FormulaOne Services, Inc. LifeSaving Devices specializes in medical devices that treat a rare spinal disorder. Physicians have been reluctant to recommend these devices due to the availability of more effective alternatives on the market. In addition, physicians have expressed concerns about the safety of these devices in treating patients. In hopes of increasing its profits, LifeSaving Devices decides to reach out directly to certain physicians and present them with a lucrative offer. The company will offer these physicians consideration, such as paid travel expenses, fees, and other items of value, under the condition that the physicians purchase and recommend the devices to their patients. Several physicians who have previously declined to recommend the devices to patients are now inclined to accept the offer. These physicians recommend the devices to their patients despite the potential risks and the physicians’ beliefs that there are safer treatment options available.

“That Little Girl Was Me”: Kamala Harris and the Civil Whites of 1964 and Beyond

“[T]hat little girl was me.” With five words, then-Senator Kamala Harris sent shockwaves across the stage at the first round of the 2020 Democratic Presidential Debates. Harris told the story of a five-year-old Black girl bussed into a white school in Berkeley, California. Harris put a name to the face: her own.No doubt, this was a watershed moment in America’s struggle with racism. Harris called out a fellow candidate, former Vice President Joseph Biden, for aligning with two well-known segregationists in the 1970s to oppose nationwide mandated bussing. Biden had a chance to disavow his past conduct but had not quite done so. In an instant, Harris became a formidable candidate. One year later, Biden and Harris were sworn in as President and Vice President of the United States.

Why a New Deal Must Address the Readability of U.S. Consumer Contracts

U.S. companies are increasingly drafting consumer contracts that are complex and unreadable, thus making it difficult for many Americans to comprehend terms of use that apply to goods and services. Many U.S. companies are creating terms of use that are, in effect, rights-foreclosure schemes. Many consumer agreements cap damages at a nominal amount, disclaim all warranties, limit remedies, and impose mandatory arbitration clauses and class action waivers. U.S. courts enforce these unfair mass-market contracts with few exceptions. My proposal for a New Deal for Consumer Contracts, as described in this Article, would impose a more exacting readability standard, enforcing agreements only if they were drafted at a reading level of the eighth grade or below in order to protect consumers against inadvertently agreeing to unfair standard contract terms such as unfair choice of law and forum clauses, limits on recovery, predispute arbitration, and disclaimers of all significant remedies. The New Deal for Consumer Contracts would invalidate unfair and deceptive consumer clauses—a reform that would synchronize U.S. consumer law with the mandatory consumer laws of the twenty-seven countries of the European Union.

Taming Immigration Trauma

This Article documents the United States’ century-long efforts to humanize our borders. In the end, law has been insufficient to tame immigration law’s enforcement. How the United States enforces borders, however, can and should be more humane. Two important principles should guide this process. First, the United States should recognize that borders’ impacts are as severe as other forms of punishment, especially when the means to enforce the immigration power have become indistinguishable from criminal enforcement. Second, human trauma should guide immigration policy toward meaningful inclusion. After significant reckoning over the travesty of shutting our borders, the United States has embraced certain experiences of trauma as grounds for welcoming immigrants or has shown mercy to permit immigrants to stay when family and communal bonds in the United States are strong. Yet, the discretionary nature of these central efforts to humanize borders has not translated to sustaining gains. Borders are still open and shut at the whims of xenophobia and nationalistic tendencies to blame the “other” during difficult socio-political and economic crises. Moreover, the lack of basic due process protections in immigration law and punitive enforcement practices functions as a significant barrier that substantially undermines the very efforts to expand immigration’s inclusion.

Damn the Torpedoes! An Unprincipled, Incorrect, and Lonely Approach to Compassionate Release

When Congress passed the First Step Act in 2018, it extended to federal prisoners the right to file their own motions for compassionate release under 18 U.S.C. § 3582(c)(1)(A). As COVID-19 ravaged prisons, sentencing courts received a massive influx of prisoner-filed compassionate-release motions. But because the United States Sentencing Guidelines and the relevant Application Note predated the First Step Act, and therefore made no mention of prisoner-filed compassionate-release motions, sentencing courts were unsure whether they had discretion to determine whether a prisoner presented “extraordinary and compelling circumstances” warranting compassionate release.
Every United States Court of Appeals to consider whether sentencing courts had discretion in evaluating prisoner-filed compassionate-release motions agreed they did. All but one. In United States v. Bryant, the Eleventh Circuit incorrectly interpreted the First Step Act, the Sentencing Guidelines, and the Application Note. Today, two Americas exist. Federal prisoners in forty-seven states may request compassionate release, and sentencing courts have the discretion to determine whether extraordinary and compelling circumstances warrant relief. Federal prisoners in Alabama, Florida, and Georgia may also request compassionate release, but the Bureau of Prisons, not sentencing courts, determines which reasons outside those enumerated in the Application Note are extraordinary and compelling.
This Article examines compassionate release’s history, critiques the Eleventh Circuit’s Bryant opinion, and proposes three avenues to return discretion to sentencing judges: the Sentencing Commission could amend the Application Note, Congress could legislate, and a prisoner could seek en banc review in the Eleventh Circuit challenging Bryant as wrongly decided.