Law Commons^™

Follow The Leader? A Comparative Law Study Of The Eu’S General Data Protection Regulation’S Impact In Latin America, Arturo J. Carrillo, Matias Jackson

GW Law Faculty Publications & Other Works

In May 2018, the General Data Protection Regulation (GDPR) entered into force in the European Union. As is widely recognized, its impact goes beyond the borders of the old continent, permeating through the regulatory processes of countries all over the world. Nowhere is this more evident than in Latin America, where governments have long emulated European data protection standards. Professor Anu Bradford has famously characterized this phenomenon as a prominent example of ‘the Brussels Effect,’ defined as Europe’s unilateral power to regulate global markets. Other scholars see a more complex dynamic at play. This is especially true in the data …

An Overview Of Privacy Law In 2022, Daniel J. Solove, Paul M. Schwartz

GW Law Faculty Publications & Other Works

Chapter 1 of PRIVACY LAW FUNDAMENTALS (6th edition, IAPP 2022) provides an overview of information privacy law circa 2022. The chapter summarizes the common themes in privacy laws and discusses the various types of laws (federal, constitutional, state, international). It contains a list and brief summary of the most significant U.S. federal privacy laws. The heart of the chapter is an historical timeline of major developments in the law of privacy and data security, including key cases, enactments of laws, major regulatory developments, influential publications, and other significant events. The chapter also contains a curated list of important treatises and …

The Common Sense Of A Wealth Tax: Thomas Paine & Taxation As Freedom From Aristocracy, Jeremy Bearer-Friend, Vanessa Williamson

GW Law Faculty Publications & Other Works

Thomas Paine’s writing helped spur the American colonies to independence and ensure that the new nation would be a republic, not a monarchy. In light of the renewed interest in wealth taxes, this article provides a close examination of Thomas Paine’s wealth tax proposal in the second volume of The Rights of Man. Unlike Paine’s proposal to tax inheritances, his 1792 proposal to tax wealth on an annual basis is often overlooked. The article identifies Paine’s various design specifications, provides original estimates of the impact of Paine’s wealth tax proposal within his own time period and as applied to billionaires …

The Limitations Of Privacy Rights, Daniel J. Solove

GW Law Faculty Publications & Other Works

Individual privacy rights are often at the heart of information privacy and data protection laws. The most comprehensive set of rights, from the European Union’s General Data Protection Regulation (GDPR), includes the right to access, right to rectification (correction), right to erasure, right to restriction, right to data portability, right to object, and right to not be subject to automated decisions. Privacy laws around the world include many of these rights in various forms.

In this article, I contend that although rights are an important component of privacy regulation, rights are often asked to do far more work than they …

Appointing Arbitrators: Tenure, Public Confidence, And A Middle Road For Isds Reform, Thomas D. Grant, F. Scott Kieff

GW Law Faculty Publications & Other Works

When parties bring claims under investor-state dispute settlement (“ISDS”) procedures, who should serve as decision-maker? Relevant par- ties ask the question in different settings and with different criteria in mind. A party in a dispute, contemplating ISDS proceedings, whether by it or against it, likely will focus on the qualities of particular individuals available to serve as arbitrators. Party-appointed panelists charged under the applicable instrument with choosing a neutral or chair, and institutional appointing authorities charged with that task or with choosing arbitrators in default of party choice, will also turn their minds to candidate assessment. Different individuals or institutions …

Transformational Procurement—The Past And Future Of Global And Local Public Purchasing—Views From The Expert Community On What Public Money Did And Will Still Need To Buy, Steven L. Schooner, Gustavo Piga

GW Law Faculty Publications & Other Works

This short piece discusses a (rather informal) survey of approximately two dozen public procurement experts (including University professors, consultants, national regulators, multilateral development bank members, and lawyers; all chosen primarily based upon their prior dealings with Professor Piga). The survey looks back (or, in other words, at where we've been) and forward (or, in other words, where we're going.) The results of the survey were originally presented at the Global Revolution XI Conference at the University of Nottingham in June of 2022.

No Man Is An Island In Defense Procurement: Developments In Eu Defense Procurement Regulation And Its Implications For The U.S., Luke R.A. Butler, Michael Bowsher, Christopher R. Yukins

GW Law Faculty Publications & Other Works

The Russian invasion of Ukraine and the United Kingdom’s exit from the European Union have focused minds on the EU’s role as a defense actor. In the context of defense procurement, this includes whether the EU should itself co-fund cooperative programmes with Member States (through the European Defense Fund, for example, and Permanent Structured Cooperation (PESCO) initiatives among Member States), what can be commonly procured (and what cannot, e.g., due to prohibitions against offsets), and how (for example, under the competing constraints of Article 346 of the Treaty on Functioning of the European Union (TFEU) and the 2009 European Defense …

Harman And Lorandos’ False Critique Of Meier Et Al.’S Family Court Study, Joan S. Meier, Sean Dickson, Chris S. O'Sullivan, Leora N. Rosen

GW Law Faculty Publications & Other Works

Jennifer Harman and Demosthenes Lorandos purport to have identified numerous methodological flaws in our 2019 study of family court outcomes in cases involving abuse and alienation allegations (“FCO study”; Meier et al., 2019). At least half of the supposed flaws they itemized relate to one claim - that they were unable to access our methods and data. They treat the claimed lack of public access as evidence that our study is unreliable, while speculating about other potential flaws. Yet we note - and they acknowledge - that most of the methodological information they sought was in fact available before publication …

Mckinsey & Company’S Conduct And Conflicts At The Heart Of The Opioid Epidemic, Hearing Before The House Committee On Oversight And Reform, Jessica Tillipman

GW Law Faculty Publications & Other Works

On April 27, 2022, Jessica Tillipman, Assistant Dean for Government Procurement Law Studies at The George Washington University Law School testified before the House Committee on Oversight and Reform regarding McKinsey & Company's potential Organizational Conflict of Interest between its contracts with the Food & Drug Administration (FDA) and its commercial, opioid manufacturer clients. Her testimony addressed the longstanding need to update and clarify the current legal framework governing Organizational Conflicts of Interest (OCIs) in the Federal Acquisition Regulation (FAR) and the importance of government contractors maintaining strong internal ethics and compliance programs.

Overcoming Corruption And War -- Lessons From Ukraine's Prozorro Procurement System, Christopher R. Yukins, Steven Kelman

GW Law Faculty Publications & Other Works

After the 2014 uprising against widespread corruption under former Ukrainian President Victor Yanukovych, a group of civic activists and data experts decided to overhaul government procurement. Their efforts produced an open-source e-procurement system, ProZorro (“transparency” in Ukrainian), and a community of citizens and government buyers, Dozorro (“watchdog” in Ukrainian), that analyzes contracting data, flags high-risk deals and irregularities, and reports them to government authorities. Created with the help of the European Bank for Reconstruction and Development and the U.S. Agency for International Development, ProZorro has helped Ukraine save almost $6 billion in public funds since October 2017, according to the …

Review Of Shucheng Wang, Law As An Instrument: Sources Of Chinese Law For Authoritarian Legality (Cambridge University Press 2022), Donald C. Clarke

GW Law Faculty Publications & Other Works

This brief note reviews Shucheng Wang’s Law as an Instrument: Sources of Chinese Law for Authoritarian Legality. It finds that the author provides a well-informed, in-depth exploration of the sources of Chinese law and offers rich food for thought on these and other questions in the world of Chinese legal studies. The author brings a good sense of the political realities of the Chinese legal system to his study.

Fda-Approved: How Pfas-Laden Food Contact Materials Are Poisoning Consumers And What To Do About It, Katya S. Cronin

GW Law Faculty Publications & Other Works

Nearly every person in the United States currently has in their body dangerous amounts of chemicals proven to cause cancer, endocrine disruptions, liver and kidney failures, infertility, developmental difficulties, learning disorders, and immunodeficiencies. These chemicals are known collectively as “PFAS”—per- and poly-fluoroalkyl substances—and they were designed for heavily industrial applications. However, over the last two decades, they have surreptitiously and successfully migrated from heavy machinery and building sites onto the many items that consumers use to cook, serve, or store their food. With the FDA’s blessing, PFAS are now ubiquitous in food contact materials, from where they leach directly into …

Race And The Criminal Law Curriculum, Cynthia Lee

GW Law Faculty Publications & Other Works

This chapter briefly sketches a few places in the substantive criminal law curriculum where law professors can include discussion of race to enrich students’ understanding of the law. These include racially based jury nullification, the void-for-vagueness doctrine, hate crimes and the actus reus requirement, voluntary manslaughter and the defense of provocation, involuntary manslaughter, rape, the doctrine of self-defense, the “Black rage” defense, and the “cultural defense.” The chapter also discusses the Guerilla Guides to Law Teaching project, which suggests that criminal law professors introduce the concept of abolition of the carceral state as a framework through which students can “question …

Judicial Review Of Scientific Uncertainty In Climate Change Lawsuits: Deferential And Nondeferential Evaluation Of Agency Factual And Policy Determinations, Robert L. Glicksman, Daniel Kim, Keziah Groth-Tuft

GW Law Faculty Publications & Other Works

Scientific determinations are often at the heart of environmental disputes. When those disputes take the form of litigation, the courts may be called on to determine whether an administrative agency’s treatment of the science warrants deference. For several reasons, judges are inclined to apply deferential review to agency factual and policy science-based determinations. Most judges are not trained in the language and methods of science. They may be reluctant to intervene on matters on which their lack of expertise risks producing uninformed judgments. If a statute delegates to an agency the responsibility of making those determinations, courts may be loath …

Strange Bedfellows? Representative Democracy And Academic Engagement With The Defense Industry, Steven L. Schooner, Evan Matsuda

GW Law Faculty Publications & Other Works

This chapter concludes a book that grew out of 2015 a conference hosted by the University of Pennsylvania's Center for Ethics and the Rule of Law, which brought together defense industry leaders, academics, and lawyers to discuss ethical challenges to the defense industry. Authors from the academy, practitioners, and policy-makers offer perspectives and insights such that the collection spans a broad range of disciplines, from philosophy, economics, law, and political science, to the management of corporate compliance.

In addition to attempting (no doubt unsuccessfully) to tie many of the book's themes together, the chapter itself asserts that the academic community …

Emerging Policy And Practice Issues (2021), Steven L. Schooner, David Berteau

GW Law Faculty Publications & Other Works

This paper/chapter, presented at the Thomson Reuters Government Contracts Year in Review Conference (covering 2021), attempts to identify some the leading, evolving trends and issues in U.S. federal procurement. Consistent with prior practice, this chapter offers extensive coverage of the federal procurement (and grant) and defense spending trends and attempts to predict what lies ahead, particularly with regard to legislative and executive activity. This year's paper discusses, among other things, the flurry of activity in the public procurement sphere as the Biden administration accelerates efforts to restore and reshape the government, special emergency procurement authorities deployed during the coronavirus pandemic, …

The Trouble With Harman And Lorandos’S Attempted Refutation Of The Meier Et Al. Family Court Study, Joan S. Meier, Sean Dickson, Chris S. O'Sullivan, Leora N. Rosen

GW Law Faculty Publications & Other Works

Harman and Lorandos assert that they have produced a study analyzing custody cases involving alienation allegations, which “disconfirms” the findings from our study of family court out- comes in cases involving abuse and alienation. In addition to pointing out the authors’ misrepresentation and mis-reporting of some of their findings, this Response details a series of profound flaws in their study’s design, dataset construction and variable coding, interpretations and analytic approach, as well as a series of statistical errors. The statistical analyses demonstrate that Harman and Lorandos’s five findings of a gender bias in favor of fathers are not supported by …

Code Free Or Die: Regulations Of Computer Code And The First Amendment, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

After the San Bernardino terrorist attack in 2015, the FBI sought to enlist Apple in its efforts to acquire potential evidence about the attack by accessing the contents of the cell phone used by the shooter Syed Rizwan Farook. The FBI claimed that the messages, contacts, and other information stored on Farook’s cell phone could lead them to potential co-conspirators who assisted in the attack or who were involved in planning other terrorist activities, or other relevant evidence. The FBI claimed that it needed Apple’s help because the cell phone in question embodied a number of security features familiar to …

Afterword: Why 'Taming The Megabanks' Should Remain A Top Priority For Financial Regulators And Policymakers, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

This essay was published as part of a law review symposium that evaluated my work on the regulation of large, complex financial institutions. Part I of my essay discusses the other articles published in the symposium issue and describes their relationship to my own work. Part II analyzes the global financial crisis that began in March 2020, following the outbreak and rapid spread of the COVID-19 virus. Part II also reviews the extraordinary actions taken by governments and central banks in response to that crisis. Part II argues that the pandemic- induced financial crisis and its aftermath confirm two lessons …

Firearms And Initial Aggressors, Cynthia Lee

GW Law Faculty Publications & Other Works

Under the initial aggressor doctrine, an “initial aggressor” loses the right to claim self-defense. Until recently, judges, legal scholars, and others have paid relatively little attention to this doctrinal limitation on the defense of self-defense. Two high-profile criminal trials in 2021 put the initial aggressor doctrine front and center of the national conversation on issues concerning self-defense and racial justice. One involved Kyle Rittenhouse, the 17-year-old teenager who brought an AR-15 style rifle to Kenosha, Wisconsin during the third night of racial protests in August 2020, and ended up shooting three men, killing two and injuring the third. The other …

The New Separation Of Powers Formalism And Administrative Adjudication, Robert L. Glicksman, Richard E. Levy

GW Law Faculty Publications & Other Works

The Supreme Court has entered a new era of separation of powers formalism. Others have addressed many of the potentially profound consequences of this return to formalism for administrative law. This paper focuses on an aspect of the new formalism that has received little attention—its implications for the constitutionality of administrative adjudication. The Court has not engaged in an extensive discussion or reformulation of its separation of powers jurisprudence concerning administrative adjudication since its highly functionalist decision in Commodity Futures Trading Commission v. Schor more than three decades ago, but recent opinions of individual Justices show signs that such a …

Breached! Why Data Security Law Fails And How To Improve It (Chapter 1), Daniel J. Solove, Woodrow Hartzog

GW Law Faculty Publications & Other Works

Digital connections permeate our lives—and so do data breaches. Given that we must be online for basic communication, finance, healthcare, and more, it is remarkable how difficult it is to secure our personal information. Despite the passage of many data security laws, data breaches are increasing at a record pace. In their book, BREACHED! WHY DATA SECURITY LAW FAILS AND HOW TO IMPROVE IT (Oxford University Press 2022), Professors Daniel Solove and Woodrow Hartzog argue that the law fails because, ironically, it focuses too much on the breach itself.

Drawing insights from many fascinating stories about data breaches, Solove and …

Unsexing Breastfeeding, Naomi Schoenbaum

GW Law Faculty Publications & Other Works

For half a century, constitutional sex equality doctrine has been combating harmful sex stereotypes by invalidating laws that treat women as caregivers and men as breadwinners. Yet decades after the constitutional sex equality revolution unsexed parenting roles, one area of parenting has escaped this doctrine’s exacting gaze: breastfeeding. Beginning in the 1990s in the wake of public health efforts to promote breastfeeding, a raft of laws were enacted, from insurance coverage mandates under the Affordable Care Act to workplace accommodations under the Fair Labor Standards Act, that provide substantial breastfeeding protections and benefits, but only to women. Although the sexed …

Selective Judicial Activism In The Roberts Court, Alan B. Morrison

GW Law Faculty Publications & Other Works

In Dobbs v. Jackson Women’s Health Organization, Justice Samuel Alito offers two main reasons why there is no Due Process right to an abortion in the Constitution, and hence why Roe v. Wade should be overturned: abortion is not mentioned in the text, and decisions about whether abortions should be permitted and, if so, under what conditions, are properly the province of the elected representatives and not federal judges. In this essay I show that, in many of the most significant cases decided by the Roberts Court, the Court has disregarded both of those reasons, and engaged in the kind …

Gordon College And The Future Of The Ministerial Exception, Peter J. Smith, Robert W. Tuttle

GW Law Faculty Publications & Other Works

In Gordon College v. DeWeese-Boyd, a social work professor at a religious college sued after she was denied promotion. The college asserted the “ministerial exception,” a judicially crafted and constitutionally grounded exception to the ordinary rules of liability arising out of the employment relationship between religious institutions and their ministers. Although the plaintiff had no distinctively religious duties, the college expected her (and all other faculty) to integrate the faith into her teaching and scholarship. The Massachusetts Supreme Judicial Court (SJC) held that this obligation, standing alone, was insufficient to qualify the plaintiff as a minister within the meaning of …

The Remedies For Constitutional Flaws Have Major Flaws, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

In this essay, Professor Pierce describes the many ways in which the conservative majority of the Supreme Court has attempted to use its unique approach to interpretation of the constitution to restructure the government and to reallocate power among the branches of government. He then describes the problems that the Court has encountered in its efforts to choose remedies for the constitutional flaws that it detects.

Increasingly, the Court must choose between remedies that are ineffective and remedies that make it impossible for the government to function. Pierce predicts that the problems that the Court has experienced to date will …

Creativity In Dispute Settlement Relating To The Law Of The Sea, Sean D. Murphy

GW Law Faculty Publications & Other Works

This chapter, written in honor of David Caron, focuses on creativity in dispute resolution relating to the law of the sea. When the 1982 U.N. Convention on the Law of the Sea (UNCLOS) was adopted in 1982, its dispute settlement procedures were heralded as highly creative in offering an array of possibilities for States (and even non-State actors). Now that almost three decades have passed since the Convention’s entry into force in 1994, can it be said that the promise of such creativity has been fulfilled? It appears that the answer to that question is largely yes, not just in …

Behavioural Economics And Isds Reform: A Response To Marceddu And Ortolani, Thomas D. Grant, F. Scott Kieff

GW Law Faculty Publications & Other Works

Academic investigators have used behavioural economics, a method developed originally to study consumers and their sentiments towards products, to study matters of public policy. A recent article in the European Journal of International Law – ‘What Is Wrong with Investment Arbitration? Evidence from a Set of Behavioural Experiments’ – gives a detailed summary of a series of experiments performed in order to study public sentiment towards investment arbitration. The investigators, Maria Laura Marceddu and Pietro Ortolani observe that public sentiment improves towards the outcome of a dispute settlement procedure when survey respondents are told that the procedure was a ‘court’ …

Feature Comment: The Inflation Reduction Act: A New Role For Green Procurement?, Christopher R. Yukins, Nathaniel Green

GW Law Faculty Publications & Other Works

The 2022 Inflation Reduction Act of 2022 (IRA) (H.R. 5376, now P.L. 117-169) marks one of the most significant steps forward in U.S. environmental policy in decades. The IRA provides for hundreds of billions of dollars in energy and climate spending. While federal procurement provisions do not play a central role in the IRA, the legislation does include significant provisions related to federal spending, for example regarding federal purchases of environmentally sound building products. Even more importantly, taken in context, the IRA follows a number of other steps taken to advance “green” procurement by the Biden administration. The legislation thus …

The Democratic (Il)Legitimacy Of Assembly-Line Litigation, Jessica Steinberg, Colleen F. Shanahan, Anna E. Carpenter, Alyx Mark

GW Law Faculty Publications & Other Works

In response to Daniel Wilf-Townsend’s Assembly-Line Plaintiffs we take a panoramic picture of state civil courts, and debt cases in particular, and name specific features of the courts that must be taken into account in crafting reform prescriptions. In doing so, we question both the democratic legitimacy of debt collection courts and the adequacy of incremental reform that targets the structure of litigation. Part I contributes two critical components to Wilf-Townsend’s rich description of consumer debt cases: pervasive intersectional inequality among pro se defendants and a record of fraud among top filers. We add a sharper focus on the racial, …