Digital Commons Network^™

Fifty Years Of Clinical Legal Education At American University Washington College Of Law: The Evolution Of A Movement In Theory, Practice, And People, Robert D. Dinerstein, Elliott S. Milstein, Ann C. Shalleck

American University Journal of Gender, Social Policy & the Law

Clinical legal education has evolved substantially in the fifty years since Elliott Milstein initiated the clinical model at American University Washington College of Law (“WCL”) that, notwithstanding numerous changes in program and personnel since that time, remains essentially in effect today. In this Article, we explore the theoretical, pedagogical, structural, programmatic, and personnel developments that have occurred during this period. We link these developments to broader developments within the national and international clinical legal education spheres. WCL’s Clinical Program, and its clinical faculty, have been leaders in shaping these developments, but, in the best clinical tradition, we have not done …

Anti-Abortion Statutes As Religious Beliefs, Scott Devito

American University Journal of Gender, Social Policy & the Law

In Dobbs v. Jackson Women’s Health Organization, Justice Alito ruled there is no right, under the U.S. Constitution, for a woman to have an abortion. Since then, eleven states have either enacted or activated statutes that forbid the performance of an abortion. Others may soon follow suit. This Article does not attempt to dispute the reasoning of the Dobbs decision. Instead, it asks whether the eleven state statutes, now construed as constitutionally permitted, are, in fact impermissible intrusions into the constitutionally required separation of church and state. This Article approaches this problem from both a historical and philosophical perspective. First, …

Lessons Learned In Prison, Daniel Keating

Scholarship@WashULaw

One way that I have tried to stay fresh as a teacher through the decades is to periodically force myself outside of my teaching comfort zone by trying something completely different. Sometimes these initiatives will end up being a one-time experiment. That was the case a little over ten years ago when I decided to teach a new course (Contracts) in a new format (online, but well before Zoom had become commonplace). Other times, my teaching experiment will prove to be more than just a frolic and detour, as was true eight years ago when I began offering a free …

After The Criminal Justice System, Benjamin Levin

Scholarship@WashULaw

Since the 1960s, the “criminal justice system” has operated as the common label for a vast web of actors and institutions. But, as critiques of mass incarceration have entered the mainstream, academics, activists, and advocates increasingly have stopped referring to the “criminal justice system.” Instead, they have opted for critical labels—the criminal legal system, the criminal punishment system, the prison industrial complex, etc. What does this re-labeling accomplish? Does this change in language matter to broader efforts at criminal justice reform or abolition? Or, does an emphasis on labels and language distract from substantive engagement with the injustices of contemporary …

Uncircle The Wagons: Reconciling Wyoming’S Regulatory Tradition With The Eastern Shoshone’S Treaty-Based Off-Reservation Hunting Rights, Erick J. Franz Hughes

Wyoming Law Review

No abstract provided.

Corporations And Abortion Rights In A Post-Dobbs World, Jennifer S. Fan

Law Faculty Research and Publications

When the U.S. Supreme Court issued its decision on Dobbs v. Jackson Women’s Health Organization, it eliminated the constitutional right to abortion, overturning nearly fifty years of precedent. Although there were those who celebrated the decision, there were also those who were dismayed and angry about its consequences. As a result, many groups mobilized into action, but the vast majority of corporations were not among them. Unlike other social issues, companies were largely silent on the issue of abortion. Using shareholder proposal data from a ten-year period and reproductive health benefits offered by companies, this Article examines how corporations addressed …

Osgoode Syllabus Of Courses And Seminars: 2023 - 2024, Office Of Student Services

Syllabi

No abstract provided.

Regulation As Respect, Cristie Ford

All Faculty Publications

The so-called “meme stock” phenomenon of early 2021 was an unexpected, riveting, short-lived, and ultimately tragicomic (or maybe just tragic) event. It was the product of many things but, on some level and for some investors, it was political protest: grassroots “voice” in the form of online stock purchases.

The modern regulatory state does not have effective mechanisms for absorbing public perspectives in all their variety and nuance. Public input mechanisms (including but not limited to notice and comment rulemaking) are embedded within what Julie Cohen and Ari Waldman have called the “regulatory managerialist” model. Within this paradigm, non-expert knowledges …

Regulating Organic, Sarah J. Morath

American University Law Review

Even highly regulated labels, such as the organic label, have the potential for greenwashing. As recently as January 2023, a grain seller was indicted in federal court for a $43 million scheme that involved the sale of non-organic grain as USDA-certified organic. But today’s organic market is also full of sellers who follow the current federal organic regulations but fail to demonstrate the spirit of the organic movement—forgoing soil, animal welfare, and community for profit. I call this nuanced form of greenwashing quasi-greenwashing. It arises when a business complies with a rule or standard but takes advantage of consumer misunderstanding …

A Contractual Relationship With Environmental Justice, Seema Kakade

American University Law Review

While corporations have long grappled with environmental issues, environmental justice is different. Corporations regularly manage compliance with environmental permits over a polluting facility’s long lifespan. Justice issues, however, are a fast-growing space for corporations as they wrestle with employee, government, customer, and public demands to step up for the communities that are directly impacted by the pollution their facilities produce. This Article explores the relationship between corporate polluters and impacted communities, with a focus on private-ordering tools like contracts. Such a focus enriches environmental justice law’s traditional focus on government decisionmakers, moving instead to corporate decision-making about where, how, and …

Wireless Investors & Apathy Obsolescence, Sergio Alberto Gramitto Ricci, Christina M. Sautter

Hofstra Law Faculty Scholarship

This Article discusses how a subgenre of retail investors makes investors' apathy obsolete. In prior work, we dub retail investors who rely on technology and online communications in their investing and corporate governance endeavors "wireless investors." By applying game theory, this Article discusses how wireless investors' global-scale online interactions allow them to circulate information and coordinate, obliterating collective action problems.

Judging Better Together: Understanding The Psychology Of Group Decision-Making On Panel Courts And Tribunals, Brian M. Barry Dr

Articles

While the psychological phenomena that affect group decisionmaking have been thoroughly investigated for decades, how these phenomena apply to decision-making by judges on panel courts is under-examined. This article examines the main psychological phenomena of group decision-making, both positive and negative, and considers their implications for panel courts and other groups of professional legal decision-makers such as adjudicators serving on tribunals. This article argues that experimental studies on judges and adjudicators testing the effects of these phenomena would improve understanding of legal decision-making by these groups and could help to devise ways to improve their decision-making processes to reach higher …

The Application Of Law As A Key To Understanding Judicial Independence, Tahirih V. Lee

FIU Law Review

Judges across China recently declined to apply a law that the National People’s Congress had newly brought into effect. In this article, I describe this startling finding and explore the significance of it. I conclude that it represents an exercise of judicial independence. Using a thickly descriptive approach that focuses on textual analysis and institutional context, I demonstrate that judges in China have no legal duty to apply law and that it is professionally risky for them to apply law; that judges there operate within a professional culture that encourages restraint; and that the court system has developed a strong …

On The Why Of Same-Sex Marriage In Cuba, Libby Adler

FIU Law Review

Cuba is expected to revise its family code soon and the legal availability of marriage to a person of the same sex will be among the anticipated revisions. This essay pushes past the assumption that same-sex marriage operates as an obvious item along any nation’s progressive path, or a universally desirable and sensible legal advance, and inquires as to the why. In a country that is markedly less religious than its neighbors, has a low marriage rate accompanied by a comparatively high divorce rate, and socializes resources such as health care such that they do not depend on marital ties, …

Present And Future Of Environmental Law In Cuba, Daimar Cánovas González

FIU Law Review

The environmental legal framework in Cuba is based on constitutional article 75 and Law 81, of July 11, 1997, on the environment, a framework law on the matter, with a series of complementary provisions with the rank of Decree Law or Ministerial Resolution. The adoption of the new constitutional text in 2019 is followed by the updating of all environmental legislation that requires a new framework law, which fills the gaps in the current one and leads to more effective environmental management. The paper addresses some of the areas in which significant changes have occurred or should occur. In particular, …

The Paradoxes Of A Unified Judicial Philosophy: An Empirical Study Of The New Supreme Court, 2020-2022, Victoria Frances Nourse

Georgetown Law Faculty Publications and Other Works

The 2021 Supreme Court Term ended with a bang, yielding blockbuster cases making headlines. But what of the rest of the cases? This is the first major paper to examine the “Trump effect,” meaning the influence of three Justices appointed by President Trump who all share a “unified” judicial philosophy. In a two-year project, starting from 2020, when Justice Barrett ascended to the Court, to the end of June 2022, this article reviews 124 cases and over 300 opinions. There is both good and bad news for the court’s new “unified” judicial philosophy. History and text are both upwardly mobile …

Infrastructuring The Digital Public Sphere, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

The idea of a "public sphere"--a shared, ideologically neutral domain where ideas and arguments may be shared, encountered, and contested--serves as a powerful imaginary in legal and policy discourse, informing both assumptions about how public communication works and ideals to which inevitably imperfect realities are compared. In debates about feasible and legally permissible content governance mechanisms for digital platforms, the public sphere ideal has counseled attention to questions of ownership and control rather than to other, arguably more pressing questions about systemic configuration. This essay interrogates such debates through the lens of infrastructure, with particular reference to the ways that …

Noticing Patents, John R. Thomas

Georgetown Law Faculty Publications and Other Works

Patents take the form of public letters that the U.S. Patent and Trademark Office (USPTO) actively disseminates. Whether these documents sufficiently provide the public with notice of the technologies they describe, as well as the proprietary rights that they assert, has been subject to long-standing debate. Many commentators conclude that patents are often filed too early in the research and development cycle, are deliberately drafted in a vague or obtuse manner, or are simply too numerous. As a result, identifying the relevant patent landscape is not just difficult for technology implementers, but possibly undesirable as a matter of innovation policy. …

Crying Wolf: Neo-Patriots, Critical Race Theory, And The Constitutional Protection Of "Dangerous" Ideas, Bryan K. Fair

Articles

Most Americans do not realize that, notwithstanding the First Amendment's free speech guarantee, for most of our nation's history, judges sent men and women to prison for expressing ideas considered too "dangerous." It was not until the late 1960s that the Supreme Court rejected the clear and present danger doctrine, insisting that statutes banning speech must draw a distinction between advocacy of ideas and advocacy of imminent lawless action. The Court held that under that constitutional norm, the government could not send a Klansman to prison for expressing racist, anti-Semitic, or otherwise dangerous or offensive ideas. Since then, banning the …

Opening A Federal Reserve Account, Julie Andersen Hill

Articles

To open bank accounts, new customers provide personal information and make a deposit. Within a few minutes (or perhaps a few days), new customers get access to payment services. For many years, the process financial institutions used to open accounts at FederalReserve Banks was similar. Eligible banks filled out a one-page form and within a week received an account allowing them access to the FederalReserve's payment systems. Recently, however, Federal Reserve Banks have spent years considering account requests from novel banks.

This Article examines the Federal Reserve's process for evaluating requests for accounts. Using interviews, court documents, and other sources, …

The Credibility Effect: Defamation Law And Audiences, Yonathan A. Arbel

Articles

What should be the legal response to false statements? In the context of defamation law, courts try to set a standard that balances the interests of speakers and their potential targets. This article empirically demonstrates an unappreciated effect of such decisions on third parties: a credibility effect. Using a series of lab experiments, I find that defamation law makes individuals more trusting of reports from various media. This credibility effect is desirable when the report is true but can lead to unintended consequences in the case of misinformation. In particular, the credibility effect is shown to cast a stigma on …

Judging China: The Chinese Legal System In U.S. Courts, Donald C. Clarke

GW Law Faculty Publications & Other Works

How should American courts understand China’s legal system? How do they understand it, and are they doing a good job? These questions have become important as economic and social ties between China and the United States have mushroomed since China’s days of Maoist isolation. The answers have implications not just for China-related cases, but for the way U.S. courts treat authoritarian and illiberal legal systems more generally.

This Article presents the first attempt to answer these questions empirically through an intensive study of all cases in which parties either sought dismissal to China on forum non conveniens grounds or sought …

How Did Qing Magistrates Decide Cases? Philip Huang Vs. Shiga Shūzō, Donald C. Clarke

GW Law Faculty Publications & Other Works

Shiga Shūzō argued in 1981 that in cases where serious criminal punishment was not contemplated, Qing magistrates adjudicated not according to the Qing code or other legal sources, but instead according to their own sense of what was right and appropriate. Against this, Philip Huang argued in 1996 that the vast majority of cases were adjudicated unequivocally according to the Qing code. But Huang fails to disprove Shiga’s claim. First, by his own admission, he is constructing through his own inferences the rules of the Qing code that he says the magistrates were applying; they do not in fact appear …

Litigation To Protect The Marine Environment: Parallels And Synergies With Climate Litigation, Randall S. Abate, Nadine O. Nadow, Hayley-Bo Dorrian-Bak

GW Law Faculty Publications & Other Works

This paper reviews recent successes and obstacles in using litigation as a tool to address issues in several contexts in the marine environment. It surveys developments at the international, national, and sub-national levels and offers lessons from creative climate litigation strategies as a way to enhance litigation to protect the marine environment. It also recommends ways in which the ocean-climate nexus can provide mutual benefits in advancing the agendas of climate change regulation and ocean stewardship.

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 …

Deploying The Wto Agreement On Government Procurement (Gpa) To Enhance Sustainability And Accelerate Climate Change Mitigation, Robert D. Anderson, Antonella Salgueiro, Steven L. Schooner, Marc Steiner

GW Law Faculty Publications & Other Works

Mitigating climate change and promoting sustainability are defining challenges of our time. Public procurement has a vital role to play in responding to the current crises. This article makes the case that the World Trade Organization’s (WTO) Agreement on Government Procurement (GPA), and specifically the Work Programme on Sustainable Procurement that has been initiated pursuant to the Agreement, can serve as important instruments to promote sustainable approaches to public procurement internationally, consistent with the goals of climate change mitigation.

The Work Programme, which was established at the time of the GPA’s modernization in 2012 and on which important work has …

Delegated Agency Authority To Address Chemicals Of Emerging Concern: Epa’S Strategic Use Of Emergency Powers To Address Pfas Air Pollution, Robert L. Glicksman, Johanna Adashek

GW Law Faculty Publications & Other Works

PFAS are a class of chemicals that pose some of the most serious and multifaceted health and environmental threats of the past century. Manufactured since the 1940s, used in everyday products from non-stick cookware, to fire-fighting foams, to makeup and shaving cream, and found in even the most remote parts of the world, PFAS are ubiquitous. The most thoroughly-studied PFAS have demonstrable serious health effects that include reproductive and developmental dysfunctions, interference with the body’s hormonal and immune systems, suppression of vaccine responsiveness, and links to various types of cancers. In response to scientists’ identification of the multitude of health …

The Prediction Society: Algorithms And The Problems Of Forecasting The Future, Hideyuki Matsumi, Daniel J. Solove

GW Law Faculty Publications & Other Works

Predictions about the future have been made since the earliest days of humankind, but today, we are living in a brave new world of prediction. Today’s predictions are produced by machine learning algorithms that analyze massive quantities of personal data. Increasingly, important decisions about people are being made based on these predictions.

Algorithmic predictions are a type of inference. Many laws struggle to account for inferences, and even when they do, the laws lump all inferences together. But as we argue in this Article, predictions are different from other inferences. Predictions raise several unique problems that current law is ill-suited …

Book Review L Boats In A Storm: Law, Migration, And Decolonization In South And Southeast Asia, 1942–1962 By Kalyani Ramnath (Stanford University Press 2023), Anwesha Ghosh

Articles

Kalyani Ramnath’s Boats in a Storm undertakes the formidable task of retelling the histories of decolonisation in India, Burma, Malaya, and Ceylon using characters who would rarely fit the description of conventional historical actors. Ramnath departs from the rich political and diplomatic histories that celebrate the independence of nation states from the yoke of imperial rule. Instead, she focuses on the ways in which these states, with their newly re-instituted legislative, juridical, and bureaucratic regimes, wreaked havoc on the lives of itinerant migrants who straddled between ‘homes’ and places of work across the Bay of Bengal and eastern Indian Ocean …

Public Law Litigation And Electoral Time, Zachary D. Clopton, Katherine Shaw

Articles

Public law litigation is often politics by other means. Yet scholars and practitioners have failed to appreciate how public law litigation intersects with an important aspect of politics-electoral time. This Essay identifies three temporal dimensions of public law litigation. First, the electoral time of government litigants-measured by the fixed terms of state and federal executive officials-may affect their conduct in litigation, such as when they engage in midnight litigation in the run-up to and aftermath of their election. Second, the electoral time of state courts-measured by the fixed terms of state judges-creates openings for strategic behavior among litigants (both public …