Digital Commons Network^™

Representing Climate Wreckers, Camila Bustos

Elisabeth Haub School of Law Faculty Publications

In recent years, lawyers have become increasingly aware of the implications of the climate crisis for legal practice. Amidst this context, United Nations Secretary General Ant6nio Guterres has urged recent graduates to decline work on behalf of "climate wreckers." This Article examines how professional responsibility rules and principles in the United States should be interpreted on a warming planet, particularly in the context of attorneys representing so-called "climate wreckers" in civil matters. I use the term "climate wrecker" to refer to fossil fuel corporations and trade associations that have engaged in public disinformation campaigns to stall climate action and sow …

From One Prison To Another: The Inordinate Criminalization Of Women Who Kill Abusive Partners And A Proposed U.N. Response, Annalie Buscarino

Case Western Reserve Journal of International Law

Paradoxically, criminal justice systems around the world punish women who kill abusive partners with inordinate sentences despite explicitly recognizing the victimization that led them to homicide. This Note examines how universally entrenched gender stereotypes lead to such overcriminalization and amount to a violation of women’s rights to equality before the law. This Note then proposes a U.N. resolution offering guidelines for criminal justice systems to craft appropriate judicial responses to women’s survival strategies.

Denile On The Nile: Balancing Ethiopia's Equitable And Reasonable Utilization Of The Nile And Egypt's Desire To Maintain The Status Quo, Tyler Tipton

Case Western Reserve Journal of International Law

For nearly one hundred years, Egypt has maintained complete control and utilization of the Nile River under the 1929 Nile Agreement signed by Egypt and the United Kingdom. This agreement was amended in 1959, making Sudan a party but alienating the remaining Nile Basin States. Ethiopia has now posed the greatest challenge to the validity of these Agreements by constructing the Grand Ethiopian Renaissance Dam. This Note argues that the longstanding bilateral 1929 and 1959 Nile Agreements can no longer maintain their enforceability against the rest of the Nile Basin because they violate customary international water law and infringe on …

Abundance And Other Food Fixations, Margot J. Pollans

Elisabeth Haub School of Law Faculty Publications

Although most people in the United States no longer devote the majority of their time to food production, processing, and distribution, food remains a daily fixation. This Article explores three driving food fixations--abundance, thinness, and health--and situates each against an inverse fear--scarcity, fatness, and illness, respectively. Mapping these threats onto U.S. food policy, this Article examines, among other policy arenas, food waste policy, nutrition and health claim labeling law, and food additive regulations. Across food policy, these fixations feed what this Article calls the “politics of abundance.” This politics helps to insulate the food industry from deeper systemic reform aimed …

A Supreme Sidestep: The Justices' Artful Dodge On Platform Immunity, Leslie Y. Garfield Tenzer

Elisabeth Haub School of Law Faculty Publications

The foiled ISIS plot to attack Taylor Swift concerts, coordinated by teens on social media platforms with a significant US presence, illustrates the dangerous consequences of unchecked online content. This incident, coupled with other tragic cases such as the sexual exploitation of a minor lured through Facebook and Tyler Clementi 's suicide following a privacy violation on Twitter highlights the urgent need to reassess 47 U.S.C. § 230 of the Communications Decency Act. Enacted in 1996, this law provides broad immunity to interactive computer services, including social media platforms, shielding them from liability for user generated content. While initially celebrated …

Politicize The Workplace, Benjamin E. Douglas

City University of New York Law Review

The United States has long been exceptional among liberal states in both its lack of workers’ rights and the undemocratic character of its electoral politics. In this Article, I argue that these two phenomena are related: the power that business managers and owners have over their employees has a depoliticizing, anti-democratic effect. It discourages people with a boss—that is, most working-age people—from speaking their mind, while also preventing them from banding together for mutual benefit and the realization of shared values.

I begin by discussing the United States’ democracy deficit, as illustrated in low voter turnout and the weakness of …

Out Of Sight, Out Of Rights: The Human Toll Of New York's Guardianship Crisis, Quinn Decicco, Sarah Michelle Smith

City University of New York Law Review

New York’s Article 81 guardianship system, intended as a last-resort protection for individuals unable to manage their personal or financial affairs, has become a default intervention that too often strips people of autonomy and dignity. Overburdened guardians, minimal training requirements, and inadequate judicial oversight leave incapacitated persons vulnerable to neglect, exploitation, and “civil death.” This Comment uses Cody’s Story to humanize the systemic failures and evaluates Resolution 561, recently adopted by the New York City Council, which calls for a statewide public guardianship system. While the Resolution represents a critical step toward reform, it lacks the structural safeguards necessary for …

Policy Brief: The Federal Banking Agencies Should Withdraw Their Deeply Misguided Proposal To Weaken Leverage Capital Requirements For The Largest U.S. Banks, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

On July 10, 2025, federal banking agencies issued a proposed regulation that would dangerously weaken capital requirements for the largest U.S. banking organizations. The proposed rule would significantly reduce the enhanced supplementary leverage ratio (eSLR) requirements for U.S. global systemically important banking organizations (G-SIBs). If adopted, the proposed rule would allow U.S. G-SIBs to become woefully undercapitalized, as their predecessors were at the outbreak of the global financial crisis of 2007-09. The proposed rule would make U.S. G-SIBs highly likely to fail during future systemic financial crises, with catastrophic consequences for our financial system, economy, and society.

As explained in …

Mahmoud V. Taylor: Cause Or Effect Of Disruptions In The Public Schools?, Richard Katskee, Ira C. Lupu

GW Law Faculty Publications & Other Works

Mahmoud v. Taylor represents an extraordinary departure from long-standing constitutional norms about the rights of parents of children in public schools. In Mahmoud, the Supreme Court upheld a Free Exercise Clause claim by parents in Montgomery County, Maryland, who sought to have their children (grades K–5) excused from readings that contain LGBTQ characters and themes. The majority opinion by Justice Alito rests on a highly controversial reading of Wisconsin v. Yoder.

Part I of the paper provides the doctrinal and historical backdrop to Mahmoud, which reflects the acute tension between a once-narrow understanding of Yoder and the post-Obergefell backlash against …

Public Procurement Law Review Special Issue: Introduction And Three Articles On Public Procurement In International Trade, Robert D. Anderson, Christopher R. Yukins, Jean Heilman Grier, Derek Mckee, Daniel Schoeni

GW Law Faculty Publications & Other Works

The Public Procurement Law Review (Sweet & Maxwell / UK) has published a special issue focused on international trade and procurement. Four of the pieces from the special issue, discussed below, are available in the attached.

In their introductory editorial, “Procurement Trade Agreements and Their Discontents,” Robert Anderson (Honorary Professor at the University of Nottingham School of Law, and Senior Fellow, Competition and Innovation Lab, The George Washington University, and former team lead at the WTO on the Government Procurement Agreement) and Christopher Yukins (GW Law) put the accompanying articles into context. They noted that the GPA, as the premier …

Police Officer Use Of Force And Officer-Created Jeopardy After Barnes V. Felix: The Supreme Court’S Important (Albeit Incomplete) Step In The Right Direction, Cynthia Lee

GW Law Faculty Publications & Other Works

On May 15, 2025, the Supreme Court issued a unanimous decision in Barnes v. Felix, rejecting the Fifth Circuit’s “moment of threat” doctrine, which limited courts assessing the reasonableness of a law enforcement officer’s use of force to considering only those facts and circumstances known to the officer at the moment of the threat. Under the Fifth Circuit’s narrow time-framing approach, any pre-seizure conduct of the officer, i.e., acts occurring before the officer seized the individual, that may have contributed to the dangerous situation could not be considered as part of the reasonableness inquiry.

Pre-seizure officer conduct that contributes to …

Ai And Doctrinal Collapse, Alicia Solow-Niederman

GW Law Faculty Publications & Other Works

Artificial intelligence runs on data. But the two legal regimes that govern data—information privacy law and copyright law—are under pressure. Formally, each regime demands different things. Functionally, the boundaries between them are blurring, and their distinct rules and logics are becoming illegible.

This Article identifies this phenomenon, which I call “inter-regime doctrinal collapse,” and exposes the individual and institutional consequences. Left unchecked, the data acquisition status quo favors established corporate players and impedes law’s ability to constrain the arbitrary exercise of private power. Through analysis of pending litigation, discovery disputes, and licensing agreements, this Article exposes two dominant exploitation tactics …

Feature Comment: Bid Protests In The U.S. Procurement System: Assessing Proposed Reforms -- Part I, Christopher R. Yukins

GW Law Faculty Publications & Other Works

Congress is considering a number of proposed changes to the U.S. bid protest system—reforms which would generally raise barriers to bid protests, without making bid protests a more effective risk-management tool. At the same time, the procurement community (both in the U.S. and internationally) is coming to understand that public procurement is, at its heart, an exercise in risk management. This article surveys the various reform proposals against that evolving understanding, to assess whether the reforms under debate would reduce risks to competition and uncover management failures in the procurement system— the two core risk-reducing purposes of bid challenges.

Feature Comment: Institutional Amnesia And The Neglect Of The Federal Acquisition Workforce, Jessica Tillipman, Steven L. Schooner

GW Law Faculty Publications & Other Works

Public procurement regimes may be constrained by rules, but people - procurement professionals - animate the process. Despite spending over $750 billion last year on federal contracts, the U.S. Government continues to deprioritize the professional capacity of its acquisition workforce. This article bemoans and critiques the persistent failure to recruit, develop, and retain procurement personnel, a failure exacerbated by politically driven downsizing, inadequate investments in workforce development, and misplaced reliance on procedural reform—most recently evidenced by the so-called “Revolutionary FAR Overhaul.” Drawing on historical data, case studies, and recent Government Accountability Office reports, the authors document how decades of underinvestment …

Feature Comment: Bid Protests In The U.S. Procurement System: Part Ii—Percipient.Ai, Debriefings And Agency-Level Protests, Christopher R. Yukins

GW Law Faculty Publications & Other Works

This is the second part of a two-part series. Part I, 67 GC ¶ 216, reviewed several reform proposals being considered by Congress. This Feature Comment (a) assesses the courts’ role in bid protest reform in light of the U.S. Court of Appeals for the Federal Circuit’s en banc decision in Percipient.ai, (b) reviews the potential benefits of expanded debriefings, and (c) explains how agency-level bid protests could be reformed, using agencies’ own best practices, to make them more effective.

When The Math Matters: Finding The “Glue” In Class Action Commonality Determinations, Robin L. Juni

GW Law Faculty Publications & Other Works

This Article is another offering in the “When the Math Matters” series, seeking to help readers understand use of mathematical and scientific concepts in legal contexts and unpack how to do things better. This Article focuses on the seminal case of Wal- Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), describing how the analytical approach to identify whether a class could be certified for purposes of that litigation continues to resonate through recent cases in the federal courts. The Article explains the statistical analysis that lawyers must present to unpack a correlative analysis in similar cases, focusing on adverse …

Zoning Report: Virginia, Matthew Harris, Scott Markley, Rama Karlapalem, Diana Drogaris, Sara C. Bronin

GW Law Faculty Publications & Other Works

Virginia is rapidly growing and transforming. Its population, now near nine million, is concentrated in Greater Richmond, Hampton Roads, and the urbanized crescent of Northern Virginia. While population growth has been strong, housing construction has struggled to keep pace. With the state facing a shortage of multi-family homes, housing costs continue to outpace incomes. That means too many Virginians are paying too much for their housing.

A significant factor in the cost of housing in Virginia is zoning: the local regulation of land uses, lots, and structures. This report analyzes National Zoning Atlas data on statewide zoning conditions. Part I …

Reconstituting Corporate Power & Accountability, Donald Braman, Theresa Gabaldon, Cindy J. Cho

GW Law Faculty Publications & Other Works

Modern society faces a growing crisis of corporate impunity. While corporations generate immense value, they increasingly inflict harm at scales that dwarf those of traditional street crime. Decades of deregulation, unchecked corporate lobbying, and a judiciary actively dismantling the administrative state have created a dangerous accountability vacuum. And just as federal oversight is collapsing, the Supreme Court's expanding preemption doctrine is handcuffing state regulators. This Article proposes a paradigm shift: the revitalization of state criminal authority, a power largely shielded from federal interference. Upon securing a conviction or deferred prosecution agreement, states should mandate that the offending corporation conduct all …

The Uptake Puzzle In Expungement Of Criminal Records, Jessica K. Steinberg, Elenore Wade

GW Law Faculty Publications & Other Works

Expungement has an uptake problem. A recent explosion of state-level rights allows people with felony convictions to expunge their criminal record, but only 1 to 6 percent of eligible people avail themselves of the remedy. Expungement is a powerful policy tool that promotes social and economic reintegration. It also serves a dignitary purpose, allowing people with criminal records to unshackle themselves from past mistakes. One might assume people would rush to court to clear their records. That the opposite is occurring—and new laws are idling on the books—suggests that rights-creation in this space has not been efficacious. This demands a …

Erisa And The Failure Of Employers To Perform Their Fiduciary Duties: Evidence From A Survey Of Health Plan Administrators, Barak D. Richman, Amy Monahan, Sara Singer, Jeffrey Pfeffer

GW Law Faculty Publications & Other Works

Employers purchase health benefits for more than 60% of the nonelderly population, making employers both important custodians of employee well-being and important actors in the healthcare ecosystem. Because employers typically have unilateral control over health and retirement benefits, the federal Employee Retirement Income Security Act (ERISA), enacted in 1974, imposes fiduciary obligations on employers when they manage or administer benefits. We provide evidence, from a novel survey of respondents who administer or oversee health benefits for their companies, that many employers appear to neglect even the most basic of their fiduciary obligations to their employees. This neglect may help explain …

Combating The Colorblind Courtroom: Using Race-Switching To Make Racial Bias Salient, Cynthia Lee

GW Law Faculty Publications & Other Works

In criminal courtrooms across the country, well-meaning judges insist on running colorblind courtrooms — courtrooms in which the attorneys are not allowed to call attention to race. Many judges, including many U.S. Supreme Court justices, believe it is best to ignore racial difference and that noticing race will encourage racial discrimination. The problem is that colorblind courtrooms are likely to exacerbate, not ameliorate, implicit racial bias. Decades of social science research have demonstrated that making race salient helps decision makers treat similarly situated individuals of different races the same and that not calling attention to race results in decisionmakers treating …

Prohibiting Threats Of Aggression, Edward T. Swaine

GW Law Faculty Publications & Other Works

Recent events, particularly Russia’s invasion of Ukraine, have revived worries about the international regime regulating the use of force. Vastly less attention has been paid to what often precedes such attacks—threats to use force—and the prohibition on them. While the UN Charter and other legal instruments integrate the threats regime with the regime on actual uses of force, the two regimes are increasingly decoupled, in part because only one considers gradations: the use-of-force regime now identifies more serious variants like aggression and crimes of aggression; threats rules, by contrast, do not. This decoupling reflects real differences in the underlying wrongs, …

The Survival Of The Jury, Renée Lettow Lerner

GW Law Faculty Publications & Other Works

This Foreword overviews the rich fund of ideas for reform of the jury that were discussed at The George Washington Law Review’s fall 2024 Symposium. The Symposium was inspired by my book The Jury: A Very Short Introduction (Oxford University Press 2023). In many countries, rates of jury trial have been declining. The decline is steepest in the United States, which ironically has one of the most robust formal rights to jury trial in the world. This Symposium brought together distinguished judges, lawyers, and academics and exposed audience members and panelists alike to new ideas and methods of reform concerning …

Procurement For Innovation: Lessons From The Us Experience, Christopher R. Yukins

GW Law Faculty Publications & Other Works

In response to interest from the European Union (EU) in using public procurement to drive innovation in Europe's single market, this article explores US procurement methods which encourage innovation, including competitive negotiations, small business innovation research initiatives, and 'other transactions'. The article also assesses broader US reforms which have facilitated innovation, including the US government's willingness to allow private firms to retain intellectual property rights in innovations created under federal procurements. The article concludes by noting that while not all these approaches may succeed in the EU, in part because of the United States' unique history, culture and economy, the …

What The "Good Moral Character" Test Reveals About Eugenics In Immigration Law, Tania N. Valdez

GW Law Faculty Publications & Other Works

This Essay explores how disability factors into immigration and citizenship law by focusing on three naturalization cases that reveal aspects of the “good moral character” element. A noncitizen’s own disability has been used as grounds for exclusion since the earliest immigration laws. Yet, as it turns out, noncitizens who participate in the eugenic mission of immigration law have been greatly rewarded.

A National Zoning Atlas To Inform Housing Research, Policy, And Public Participation, Sara C. Bronin, Wenfei Xu, Scott Markley, Diana Drogaris

GW Law Faculty Publications & Other Works

Through a unique combination of data science and legal analysis techniques, the National Zoning Atlas is creating the first public, online repository of standardized data about zoning. This article first discusses the context for and methodology behind the atlas. It then establishes three possibilities for using the atlas, including facilitating research (including fair housing research), strengthening planning, and empowering the public.

Zoning Impact Analysis: Texas Senate Bill 785, Sara C. Bronin, Matthew Harris

GW Law Faculty Publications & Other Works

Texas Senate Bill 785 (2025) aimed to increase the amount of land municipalities zone for manufactured housing. Using the comprehensive repository of data in the National Zoning Atlas (NZA), this paper finds that: • SB 785 would increase the amount of land zoned for manufactured housing. • 44% of the 579 municipalities in the NZA dataset would have to enact zoning reforms to comply with SB 785. • 56% would comply with, or be exempt from, SB 785. In addition, the paper recommends that Texas legislators refine definitions, include a "good faith" clause, and require reporting to ensure the legislation …

A "One Health" Approach To Healthy Food, Katya S. Cronin

GW Law Faculty Publications & Other Works

This Article is brought to you for free and open access by the Law Journals at BrooklynWorks. It has been accepted for inclusion in Brooklyn Law Review by an authorized editor of BrooklynWorks.

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 …

The Ten Commandments In Louisiana Public Schools: A Study In The Survival Of Establishment Clause Norms, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

In June 2024, Louisiana enacted legislation requiring the prominent posting of the Ten Commandments on the wall of every public-school classroom. In Roake v. Brumley, a federal district court decided that the requirement violated the Establishment Clause. Judge DeGravelles’s lengthy opinion followed the Supreme Court’s 1980 decision in Stone v. Graham, which invalidated a highly similar Kentucky law. In late June 2025, in an opinion by Judge Ramirez, the U.S. Court of Appeals for the Fifth Circuit affirmed the district court in every significant respect. Texas recently enacted similar legislation, now under the cloud of Roake v. Brumley.

In this …