Ave Maria School of Law Moot Court Board Journal Spring 2015 Volume 6, Issue 2 Overregulation FEATURING: Professor Mark H. Bonner avemarialaw.edu A Ave Maria School of Law Moot Court Board Journal Spring 2015 Volume 6, Issue 2 Volunteer Opportunity to Serve as Judge for the Ave Maria School of Law Moot Court Board The Saint Thomas More Trial Competition in March 2015 Judges and lawyers interested in serving as a judge for the competition may contact: Joshua Schueneman, Vice President of Internals, at [email protected] for more information. EDITOR IN CHIEF: WRITERS: SPECIAL CONTRIBUTOR: Elizabeth Humann Christopher Antonino Elizabeth Humann Professor Mark H. Bonner Matthew Catania John Manni EDITORS: Anthony Cetrangelo Matthew McConnell Kelsey Briggs Ira Combs Andrew Riordan Anthony Cetrangelo Jovanni Fiallo Jorge Rodriguez-Sierra Mary Fowler Mary Fowler Sara Schmidt Ave Maria School of Law Elizabeth Humann Moot Court Board Journal Jorge Sierra-Rodriguez 1025 Commons Circle • Naples, Florida 34119 [email protected] www.avemarialaw.edu/AveLaw/mcb/Index.aspx Ave Maria School of Law was founded in Ann Arbor, Michigan, in 1999, and in 2009 relocated to Naples, Florida. It is licensed by the Florida Commission for Independent Education, License Number 4007, and is fully accredited by the American Bar Association. A copy of the official registration and financial information may be obtained from the Division of Consumer Services by calling toll-free within the state. Registration does not imply endorsement, approval, or recommendation by the state. http://www.freshfromflorida.com/divisions-offices/consumer-services 1-800-435-7352. MOOT COURT BOARD PRESIDENT’S MESSAGE The Ave Maria School of Law Moot Court Board attracts a special kind of student. Our board is comprised of those who have unique litigation skills and a desire to serve the law school through the application of those skills. The board’s primary goal is one of service. We serve the INSIDE law school by representing Ave Maria at local and national competitions. Our goal is to show our adversaries and judges in these competitions that Ave Maria School of Law puts forth An Ounce of Christian Virtue 2 students that exemplify oral advocacy and professionalism. Our members willingly take on is Worth a Ton of Government Regulation exciting new work in preparation for these competitions. We believe that it is through this work Common Core: Is this push for 4 and preparation that we can also instill in our own student body, a desire to work diligently and national standards in education faithfully towards a legal vocation. good or bad for Florida? The Board has been hard at work this year. Many students sacrificed their winter breaks Common Core: A Counterpoint 6 and worked straight through to the Spring semester preparing this edition of the Gavel and The FDA’s Regulation of 6 practicing for upcoming external competitions. Medical Informational Technology We had a very strong showing at the New York City Bar National Appellate competition. Emancipating College Athletes: 8 Why Overregulating the Jessica French, Monica Kelly and William Stallings represented Ave Maria School of Law. They Student-Athlete is Unjust ranked number one in oral advocacy after the preliminary rounds and their brief was ranked Over-Regulation of 9 second overall for the region. Financial Markets Joshua Schueneman and the internal competition committee hosted a very successful The Transatlantic Trade 10 appellate competition at Ave Maria School of Law. The Judge H. Bork internal competition and Investment Partnership was judged by Ave Maria professors, local judges and attorneys and provided yet another Have Societal Advances 11 Resulted in Traffic Laws Being opportunity for Ave Maria students to hone their litigation skills. Over-Regulated? Our board looks forward to the internal and external competitions coming up this Spring and Media Driven Gun Control Laws 12 we thank you for your prayer and support as we seek to further a faithful and diligent learning Do Not Stop Criminals environment at Ave Maria School of Law. I hope you enjoy this edition of the Gavel. Dr. Frankenstein’s New Monster: 14 The Fourth Branch Sincerely, Taxpayers Left with 16 Smoldering Rubble Pete Rose: The Punishment 18 Does Not Fit The Crime, Today Christopher Antonino Ave Maria School of Law Inside President, Moot Court Board, Ave Maria School of Law Moot Court Board Back [email protected] Cover THE GAVEL | SPRING 2015 1 AN OUNCE OF CHRISTIAN VIRTUE IS WORTH A TON OF GOVERNMENT REGULATION By Mark H. Bonner Professor of Law, Ave Maria School of Law The multiplication of legislation and the increasing burden George Washington thought so. In his Farewell Address of of administrative regulation are akin to a computer virus 1796 he said: (or cancer, for that matter): they keep on expanding and “[W]here is the security for property, for reputation, for life, if expanding. The Heritage Foundation deals regularly with the sense of religious obligation desert the oaths? And let us the issue of overcriminalization. Recently I presented a with caution indulge in the supposition that morality can be lecture here at Ave Maria School of Law, with Director John maintained without religion. Whatever may be conceded to the G. Malcolm of the Heritage Foundation, sponsored by the influence of refined education on minds of peculiar structure, Federalist Society. It was entitled “The Criminalization of reason and experience both forbid us to expect that national Almost Everything: Why Both Liberals and Conservatives morality can prevail in exclusion of religious principle.” Should be Alarmed.” The Heritage website devoted to this issue is http://www.heritage.org/initiatives/rule-of-law. Ambassador Michael Novak, in an address at the Gala Dinner for Ave Maria School of Law on December 5, 2014, God expelled from public schools. There are quoted the above, and added: numerous factors contributing to this: the increasing com- plexity of social life being one, and the increasing areas of “Given the horrors of the century just passed, who would control asserted by the federal government being another. wish to bet our republic’s continuance on a people who have It seems to me that a prime reason for this phenomenon in no inner policemen, no inner conscience? Where nearly all the law, at least as it applies in the antisocial behavior con- citizens live by inner policemen, official police forces can be text, is that our government-run “public” schools have been small. Among peoples without inner policemen, no number pushed, bullied, and driven to exclude discussion of God of policemen on the street will suffice.” from their teaching and discourse. Now, 90% of America’s Ambassador Novak’s analysis is also held by Professor youth attend and are formed by these schools. This has Clayton Christensen of the Harvard Business School.1 largely occurred during my lifetime, and has been aided and Refraining from murder, rape, robbery, arson, lying, cheat- abetted by decisions of the Supreme Court stifling teaching ing, stealing and the like because God commands it and and recognition of God in public life, and by a national media will surely punish its default is a powerful motivator (and too timid for, or hostile to, public recognition of God. This consistent with the Natural Law lurking in our consciences). has produced several generations of Americans many of In contrast, the raw ipse dixit of the national legislature or whom are untethered from the foundations of our coun- executive branch so commanding is a weak reed upon which try, and possessing only rudimentary notions of right and to rely. And where legislation/regulation degenerates from wrong, if any at all. While those who believe in God (here I’m requiring the at least morally-neutral to allowing and sup- talking about the Judeo-Christian God) have a discernable porting the morally-obnoxious, it becomes less compelling concept of right and wrong, and of reward and punishment of acceptance by the people. for their actions according to their deserts, those who do Ruling society by means of laws divorced from God can not, don’t. lead to more and more laws seeking to plug every possible loophole or to address every conceivable circumstance, and to harsher and harsher punishment (consider the life sentences for recidivists, and the huge minimum mandatory avemarialaw.edu 2 sentences for some offenses). This, in an effort to control • or its use of RICO laws against pro-life activists (NOW v. a citizenry less and less inclined to exercise self-control. Scheidler, 537 U.S. 393 (2003) (RICO violation not made The prisons are already full of criminals whose actions out where abortion protesters did not obtain property warranted their imprisonment, but perhaps if they had from abortion clinics, thereby not committing extortion); been brought up right, taught the difference between right • using a chemical-weapons statute [18 U.S.C. § 229] and wrong by their father and mother, supported by their against a jilted wife who sprinkled chemicals on her hus- schools and society, they would be free and happy, instead band’s mistress’s mailbox and doorknob causing skin irrita- of incarcerated. Telling a person “don’t do that because the tion - Bond v. United States, ____U.S. ____, No. 11-15643 elected officials say so” is one thing, but a person realizing decided June 2, 2014 (such not a chemical weapon under “don’t do that because God says so” is quite another. the statute); The foreseeable effect of driving God from some of our • and from another perspective, using vagrancy laws to schools and public discourse can be seen in classrooms where harry African-Americans. See, e.g., Papachristou v. City of the (hopefully extra-curricular) practice of sodomy, fornication, Jacksonville, 405 U.S.