Law Commons^™

Review Essay: Marta Cartabia And Nicola Lupo, “The Constitution Of Italy: A Contextual Analysis” (2023), Francesca Bignami

GW Law Faculty Publications & Other Works

In this review essay, I showcase aspects of Marta Cartabia’s and Nicola Lupo’s The Constitution of Italy that set it apart from standard texts and that make it an excellent resource on Italian government and public law. Then, I focus on two elements of the Italian constitutional order that are discussed in the book and that are unique when seen in comparative context—the non-hierarchical organization of the Italian judiciary and the salience of social rights. I argue that future research on these aspects of the Italian case could make an important contribution to cutting-edge debates in the field of comparative …

Why Sustainable Procurement? Read All About It, Steven L. Schooner

GW Law Faculty Publications & Other Works

As procurement professionals (knowingly or unknowingly) await regulations promulgated in an effort to adapt to and mitigate climate change, significant opportunities exist within current federal regulations and policy to affect change. For now, the burden to stimulate innovation falls upon procurement professionals, individually, and collectively. In that context, information is power. What better place to start than with a good book?

With an eye towards informing productive conversations across the federal acquisition community about evolving expectations, practices, and policies in sustainable procurement, this article suggests some reading from the massive and diverse body of work related to climate change.

This …

Durability, Flexibility And Plasticity In The U.N. Convention On The Law Of The Sea, Sean Murphy

GW Law Faculty Publications & Other Works

The overall resilience of the U.N. Convention on the Law of the Sea during the forty years since its adoption in 1982—its durability, its flexibility and its plasticity in the face of myriad challenges that have unfolded over time—is largely attributable to certain design features within the Convention, to a willingness to ‘bend’ the Convention toward practical outcomes when necessary, and to the foresight of the drafters in closely tying the Convention to other agreements and standards, as well as to the general field of international law, so that the Convention might evolve as the world evolves. There are risks …

Firearms And The Homeowner: Defending The Castle, The Curtilage, And Beyond, Cynthia Lee

GW Law Faculty Publications & Other Works

In the spring of 2023, a series of back-to-back shootings shook the nation. A Black teenager in Missouri trying to pick up his two younger siblings went to the wrong door and rang the doorbell. The homeowner came to the door with a gun and, without saying a word, fired two shots at the Black teenager, hitting him in the face and the arm. A few days later, a Caucasian woman and her friends in upstate New York, looking for a party, drove up the wrong driveway. The homeowner came out of his house with a shotgun and fired two …

A Transatlantic Analysis Of Eu And U.S. Strategies In “Green Procurement", Marta Andhov, Christopher R. Yukins

GW Law Faculty Publications & Other Works

As governments the world over move to reduce global warming, public procurement has become an increasingly important means of leveraging governments’ vast purchasing power to reduce greenhouse gas (GHG) emissions through “green” or environmentally sustainable procurement. This article reviews emerging strategies in green procurement in the European Union and the United States. The article notes that those green procurement strategies are remarkably consistent on both sides of the Atlantic, from sector-specific preferences for low-carbon products to eco-labels to life-cycle cost analyses which take into account broader environmental impacts. On both sides of the Atlantic, however, parallel problems have emerged as …

Extraterritoriality, Francesca Bignami, Giorgio Resta

GW Law Faculty Publications & Other Works

This chapter argues that the competing American ballot-box and European fundamental rights paradigms of regulatory law have marked the specific domain of digital regulation. These regulatory paradigms and their associated state interests are projected extraterritorially through the market power of Silicon Valley, on the one hand, and the privacy rights of European Union (EU) regulators, on the other hand. This chapter also analyzes recent developments in the EU, where there is now a state effort to make digital markets and, relatedly, an emerging preference for some data localization to promote both fundamental rights and economic and security interests. In China, …

The Centennial Of Meyer And Pierce: Parents’ Rights, Gender-Affirming Care, And Issues In Education, Ira C. Lupu

GW Law Faculty Publications & Other Works

This paper was prepared for a Symposium marking the centennial of the Supreme Court’s decisions in Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925). At their inception, Meyer and Pierce reflected constitutional principles of economic freedom and parental control of their children’s education. Part I traces the path of ideas put in motion by Meyer and Pierce. These include the decline of their economic freedom component and the broader grounding of their doctrines of parental authority. Eventually, the legacy of Meyer and Pierce expanded to include First Amendment concerns of religious exercise and knowledge acquisition; Fourteenth Amendment …

Congressional Testimony: Problems With The Sec's Climate Disclosure Proposal, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

This Congressional testimony, requested by the House Financial Services Committee, identifies the fatal flaws embedded in the SEC's controversial climate disclosure rule, To summarize some primary problems, the Proposal:

• disregards evidence that most individual investors buy stocks primarily to save, not to influence climate policy;
• does not address the millions of individual American investors who need the SEC’s protection as they save for education, homes, retirement, and philanthropy; and
• ignores conflicts of interest between large asset managers and their beneficiaries—ordinary Americans—who have different preferences and goals.

In addition, the Proposal mandates irrelevant and burdensome disclosures that would harm investors by: …

Conflicts Of Law And The Abortion War Between The States, Paul S. Berman, Roey Goldstein, Sophie Leff

GW Law Faculty Publications & Other Works

On the subject of abortion, the so-called “United” States of America are becoming more disunited than ever. The U.S. Supreme Court’s precipitous decision in Dobbs v. Jackson Women’s Health Organization overturned the nationwide framework for abortion rights that had uneasily governed the country for fifty years. In the immediate aftermath of that decision, it is becoming increasingly clear that states governed by Republicans and those governed by Democrats are moving quickly and decisively in opposite directions. Since the U.S. Supreme Court agreed to hear the Dobbs case, at least twenty-four states have enacted statutes or state constitutional provisions restricting abortion …

The Intentional Pursuit Of Purpose: Nurturing Students’ Authentic Motivation For Practicing Law, Katya S. Cronin

GW Law Faculty Publications & Other Works

“Why do you want to pursue a career in the law?” Nearly every aspiring attorney answers this question as part of their law school application personal statement. They pour their hopes, dreams, and challenges into the answer to this question—their formative struggles, deeply held values, and resolve to make the world a better place as legal practitioners. Soon after starting law school, however, law students turn their attention from core aspirations to immediate concerns. Forgotten and slowly choked by the thorns of competition, prestige, and external validation, law students’ internal sense of self and purpose begin to wither away until, …

Food Procurement: An Essential Ingredient To Mitigating Climate Change And Enhancing Public Health, Chloë Waterman, Rachel Clark, Steven L. Schooner

GW Law Faculty Publications & Other Works

This short article addresses a critical, but often underappreciated, aspect of the evolving suite of efforts to reduce greenhouse gas (GHG) emissions: food and agriculture systems, which account for at least a quarter of GHG emissions and more methane emissions than any other sector. The article invites government leadership to become more intentional in focusing on sustainable food procurement as a key strategy to mitigate climate change. The authors argue that public food procurement can – and should – be leveraged to generate a wide range of cascading social benefits beyond mitigating climate change and improving public health, including worker …

Bystanders To A Public Health Crisis: The Failures Of The U.S. Multi-Agency Regulatory Approach To Food Safety In The Face Of Persistent Organic Pollutants, Katya S. Cronin

GW Law Faculty Publications & Other Works

Per- and polyfluoroalkyl substances (“PFAS”) are devastating our food systems and our health. Recent studies link even small exposure to PFAS to a host of adverse health outcomes, including cancer, autoimmune diseases, thyroid disease, liver damage, childhood obesity, infertility, and birth defects.

Food consumption is a primary route of PFAS exposure. PFAS are omnipresent at dangerous levels in our marine and agricultural environments, including in water, soil, fertilizers, compost, and air. From there, they can find their way into virtually every plant, fish, animal, and animal product, and ultimately (in the greatest concentration) into the consumer. In addition, PFAS-laden food …

The Future Of Jurisdiction, Paul S. Berman

GW Law Faculty Publications & Other Works

A new paradigm for conceptualizing the doctrine of personal jurisdiction is long overdue. In the 19th century the U.S. Supreme Court established a firm territorialist approach to jurisdiction befitting a geographically spread-out country with many local micro-economies. The more flexible “minimum contacts” test articulated in 1945 by International Shoe v. Washington ushered in a 20th century vision responding to increased automotive transportation and national industrial production. But now, at least three decades into the Internet and information economy era, the U.S. Supreme Court has yet to land on a coherent jurisdictional framework for the new century.

It’s not for want …

Feature Comment: Don’T Let Post-Employment Conflicts Derail Your Contract Award, Jessica Tillipman, Bryan Dewan

GW Law Faculty Publications & Other Works

Often referred to as “revolving door” restrictions, the U.S. Government has devised numerous laws, policies and procedures designed to combat unethical or anti-competitive conduct that may stem from a Government employee’s decision to leave federal service. The laws range from ethics restrictions designed to minimize the appearance of impropriety while a federal employee endeavors to leave the Government, to criminal laws, which seek to punish conflicts of interest and improper conduct that may occur after Government service concludes.

In addition to the ethical and criminal considerations that must be taken into account when navigating the Government’s myriad post-Government employment restrictions, …

Overcoming Racial Harms To Democracy From Artificial Intelligence, Spencer A. Overton

GW Law Faculty Publications & Other Works

While the United States is becoming more racially diverse, generative artificial intelligence and related technologies threaten to undermine truly representative democracy. Left unchecked, AI will exacerbate already substantial existing challenges, such as racial polarization, cultural anxiety, antidemocratic attitudes, racial vote dilution, and voter suppression. Synthetic video and audio (“deepfakes”) receive the bulk of popular attention—but are just the tip of the iceberg. Microtargeting of racially tailored disinformation, racial bias in automated election administration, discriminatory voting restrictions, racially targeted cyberattacks, and AI-powered surveillance that chills racial justice claims are just a few examples of how AI is threatening democracy. Unfortunately, existing …

We Need A New Glass-Steagall Act To End The Toxic Symbiosis Between Universal Banks And Shadow Banks, Which Professor Corrigan Has More Fully Revealed, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

Patrick Corrigan’s recent article highlights the abuses of securitization by universal banks during the subprime lending boom that led to the Global Financial Crisis of 2007–09 (GFC). Professor Corrigan’s article focuses on what Zoltan Pozsar and other researchers have called “internal” shadow banking—namely, the origination and securitization of hazardous loans by universal banks through nonbank affiliates, including broker-dealer subsidiaries and off-balance- sheet securitization vehicles. I agree with Professor Corrigan that the enormous credit risks generated by universal banks and their “internal” shadow banking affiliates played a major role in precipitating the GFC.

Professor Corrigan’s article gives less attention to what …

The Basketball Court, David Fontana, David Schleicher

GW Law Faculty Publications & Other Works

Public law scholars often consider how to separate power among and within governmental entities in order to encourage that power to be used effectively. However, public law scholars only rarely bring the insights they have developed about the separation of powers to bear on questions of how to design private business firms. But these firms often need their own private separation of powers to diffuse power among their officials and ensure compliance with foundational firm objectives.

This Article considers an emerging form of the private separation of powers: a private supreme court-like institution internal to a single firm. The consistent …

Fool Me Once, Shame On You: Promoting Corporate Accountability For The Human Rights Impacts Of Climate Washing, Randall S. Abate

GW Law Faculty Publications & Other Works

Effective climate change governance faces two overarching challenges. The first is mobilizing the political will to regulate climate change with sufficient ambition. Second, when regulatory measures are in place to address climate change, the next challenge is ensuring that governmental and private sector entities are on track to comply with these time-sensitive climate governance commitments. This article addresses the second challenge. It reviews “climate washing” litigation that seeks to hold fossil fuel companies and other private sector entities accountable for misleading the public about their compliance with climate change mandates or goals. The article argues that climate washing tactics threaten …

An Intersectional Examination Of U.S. Civil Justice Problems, Kathryne M. Young, Katie Billings

GW Law Faculty Publications & Other Works

Millions of Americans face civil justice problems each year, and most of these problems never make it to court, let alone to a legal expert. Although research has established that race and class are associated with a person’s chance of experiencing a civil justice problem, detailed intersectional examinations of everyday people’s justice experiences are largely absent. A more in-depth empirical understanding of the access to justice crisis can equip lawyers, policymakers, and other designers of justice interventions to create higher-impact, more efficient, and better- targeted programs to meet the justice needs of everyday people.

This Article fills a critical gap …

Eu Foreign Subsidies Regulation Update: Risks And Responsibilities For Foreign Firms In Eu Public Procurement Markets, Pascal Friton, Ramona Ader, Christopher R. Yukins

GW Law Faculty Publications & Other Works

The European Union’s Foreign Subsidies Regulation (FSR) (Regulation (EU) 2022/2560 of the European Parliament and of the Council of 14 December 2022 on foreign subsidies distorting the internal market) has now entered into force, along with an implementing regulation (Regulation (EU) 2023/1441 of 10 July 2023), which provide important clarifications for foreign firms competing for major awards in EU procurement markets. The FSR is the EU’s effort to address distortive foreign government subsidies in the EU internal market, including in public procurement. The EU restricts Member States’ power to subsidize domestic firms under the EU’s “State aid” doctrine; the FSR …

The Eu Foreign Subsidies Regulation: Implications For Public Procurement And Some Collateral Damage, Pascal Friton, Max Klasse, Christopher R. Yukins

GW Law Faculty Publications & Other Works

The European Union has erected a significant new barrier to foreign competitors that seek to compete in EU Member State public procurements. In the European Union there are uniform rules (known as “State aid” rules) on subsidies for all Member States, which are intended to ensure that competition in the internal market is not distorted by government subsidies. To counter (perceived) disadvantages of EU firms when competing with competitors from non-EU countries not subject to the EU “State aid” regime, the EU has adopted the Foreign Subsidies Regulation (FSR), which entered into force in January 2023 and will go into …

Congressional Testimony: Shareholder Proposals, Index Fund Voting And The Need For Proxy Advisor Reform, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

This Congressional testimony, requested by the House Financial Services Committee, reviews the history and current state of the federal shareholder proposal rule and how it has been seized by special interests to push agendas at odds with shareholder interests; ponders the conundrum that passive investment funds deign to actively vote shares without either knowledge or authority; and laments how proxy advisors, intended to support such passive funds, make matters worse through a lack of both accountability and incentives to promote accuracy rather than expediency. Congress should restore the legitimacy of the shareholder proposal process, revisit and/or eliminate voting by index …

Now You See Them, Now You Don’T: International Court-Appointed Experts, Wartime Reparations, And The Drc V. Uganda Case, Sean D. Murphy, Yuri Parkhomenko

GW Law Faculty Publications & Other Works

One intersection between scholarship and practice in international humanitarian law (IHL) is observable in international litigation concerning violations of the law of war. An interesting example in this regard recently arose in the case before the International Court of Justice (ICJ) by the Democratic Republic of the Congo against Uganda for war-related claims. At the reparations phase, the Court decided not to rely solely on the submissions of the Parties, but to task certain scholars and other experts to answer evidentiary questions. Yet, when the Court’s judgment was issued in February 2022, the role of these experts turned out to …

First Amendment Protections For “Good Trouble”, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

In the classical era of the Civil Rights Movement in the 1950s, 1960s, and 1970s, activists and protestors sought to march, demonstrate, stage sit-ins, speak up, and denounce the system of racial oppression in our country. This was met not just by counterspeech—the preferred response within our constitutional framework—but also by efforts by the dominant power structure to censor and shut down those forms of public rebuke of our nation’s racist practices. Fast forward seventy years, and the tactics of the dominant power structure have essentially remained the same in response to today’s civil rights activists who seek to protest …

Who Are Quality Shareholders And Why You Should Care, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

Delaware may be the country's last best hope for maintaining balance and rationality in the country's system of corporate governance, as its policies advance the interests of quality shareholders, those with a deep and abiding interest in a particular corporation, rather than the agendas of assorted interest groups seeking to use the corporate form for parochial purposes. The text is based upon the 37th Annual Francis X. Pileggi Distinguished Lecture in Law which Professor Cunningham presented in February 2023 to the Delaware bench and bar and to the faculty and students of Delaware Law School.

In Memoriam Thomas Buergenthal (1934-2023), Sean Murphy

GW Law Faculty Publications & Other Works

Thomas Buergenthal—a Holocaust survivor; a ground-breaking scholar, teacher, and mentor; and a practitioner who scaled the heights of his profession—died at his home in Miami on May 29, 2023. This In Memoriam briefly notes his remarkable life and professional accomplishments, including his youth spent in Nazi concentration camps and his service as a Judge of the International Court of Justice.

When reflecting on his life-long pursuit of robust and effective human rights, Judge Buergenthal understood that, despite great progress in the field of human rights, much remained to be done, and that sadly many atrocities continued across the globe. Yet …

Common Law Statutes, Charles Tyler

GW Law Faculty Publications & Other Works

A “common law statute” is an important type of federal statute, the defining feature of which is that it resists standard methods of statutory interpretation. The category in-cludes such important statutes as the Sherman Act, § 1983, and the Labor Management Relations Act, among others. Despite the manifest significance of this category, existing caselaw and legal scholarship lack a minimally defensible account of how courts should decide cases arising under common law statutes. This Article supplies such an account. It argues that judges should decide cases arising under common law statutes by applying rules representing a consensus among American courts …

A New Acquisition Model For The Next Disaster: Overcoming Disaster Federalism Issues Through Effective Utilization Of The Strategic National Stockpile, Robert B. Handfield, Andrea S. Potrucco, Zhaohui Wu, Christopher R. Yukins, Tanner Slaughter

GW Law Faculty Publications & Other Works

Using primary data collected from interviews with federal and state government officials and secondary data related to PPE distribution and state healthcare statistics, we discovered evidence that the use of the Strategic National Stockpile (SNS) to distribute personal protective equipment to state and local agencies in need during the height of COVID-19 was indeed poorly designed to cope with the COVID-19 emergency, leaving many states with shortages of badly needed medical supplies. As a result, many states struggled to organize an uncoordinated procurement response – which we suggest is due to federalism issues. To overcome federalism challenges and increase future …

U.S. Department Of Justice Executive Branch Engagement On Litigating The Administrative Procedure Act, Aram Gavoor, Steven A. Pratt

GW Law Faculty Publications & Other Works

The Administrative Procedure Act is a broadly worded statute that has benefitted from caselaw to fill many of its gaps, ambiguities, and inconsistencies. But the case method directs judicial attention to slivers of APA inquiry that are required to resolve cases in as-applied challenges to rules and adjudications. There is another method of APA interpretation that has never been deployed in the statute’s 77-year life—that of intentional collaboration between the executive branch and the judiciary. Acting on their litigation and case management authorities as well as their unique power to persuade the judiciary on questions of administrative procedure, the Attorney …

Brief Of Amici Curiae Administrative Law Scholars In Support Of Petitioner In Sec V. Jarkesy, Ronald M. Levin, Alan B. Morrison, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

This is an amicus brief that several scholars have filed in the Supreme Court in SEC v. Jarkesy. The brief argues that (1) the double-for-cause removal requirement of Free Enterprise Fund v. PCAOB should not apply to ALJs at the SEC; and (2) the Seventh Amendment does not apply to administrative adjudication at the SEC.