Digital Commons Network^™

What Rights Do Ai Companies Have In Government Contracts?, Jessica Tillipman

GW Law Faculty Publications & Other Works

The Anthropic-Pentagon dispute has generated widespread commentary but fundamental confusion about whether contractors can restrict the government's use of their products. This article argues the question is not novel. The scope of permissible restrictions depends on the acquisition pathway, the contract type, and the negotiated terms. The article surveys the principal pathways through which the federal government acquires AI and examines OpenAI's published Pentagon contract language, which adopts an "any lawful use" standard conditioned on existing legal authorities. A critical tension emerges: although the contract facially permits broad use, OpenAI's retained architectural control over its cloud-only deployment and safety infrastructure …

Justice Kagan’S Presidential Administration Article Twenty-Five Years Later, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

This article is a contribution to a symposium on the durability of the famous article that Visiting Professor (now Justice) Kagan wrote in 2001 in her successful effort to obtain a tenured position on the Harvard faculty. The title of the article was “Presidential Administration.” Professor Kagan described the history of efforts to govern the administrative state and argued in support of the highly personal and overtly political approach taken by her former boss, President Clinton.

Professor Pierce begins by discussing at length agency adjudication--an important topic that Professor Kagan discussed in only a few paragraphs. He concludes that Professor …

Sex Equality After Skrmetti, Naomi Schoenbaum

GW Law Faculty Publications & Other Works

The Supreme Court’s decision in United States v. Skrmetti upholding a ban on gender-affirming medical care for minors marked a foundational shift in constitutional sex equality doctrine. Rather than recognize the challenged ban’s sex-based line-drawing, the Court recast the statute as a neutral regulation of medical purpose and age. In so doing, it narrowed the definition of what constitutes a sex-based classification and embraced a conception of biological sex as a natural kind—objective, apolitical, and outside the scope of constitutional scrutiny.

The Article identifies this move as a doctrinal departure and a conceptual reconfiguration. The law’s challengers argued that it …

The Promise Of Artificial Intelligence For Identifying And Interpreting The Sources Of International Law, Sean D. Murphy

GW Law Faculty Publications & Other Works

Sir Michael Wood’s remarkable career was deeply enmeshed in the pragmatics of international law; how to make it work as a part of the lawyering that occurs daily in foreign ministries, international organizations, and courts or tribunals. Yet that focus on practical lawyering did not allow him to eschew broader considerations of doctrine and even theory. While his work on the International Law Commission as Special Rapporteur for Identification of Customary International Law was motivated by a sense that national court judges struggled to understand the basic parameters of that source of law, the work necessarily entailed grappling with some …

Chapter 2: Do We Still Believe In Process? Democracy And The Fundamental Value Of Dialog Across Difference, Paul S. Berman

GW Law Faculty Publications & Other Works

This essay surveys a few of the many ways to understand what democracy actually is and how to evaluate when it exists and when it is lost. Ultimately, I argue for a pluralist vision that emphasizes both democracy and law's potential ability to bring multiple communities and differing worldviews into dialog with each other. But no conception of democracy can survive unless people are willing to embrace the idea that a fair process can lead to an undesired outcome and that, therefore, even those who lose in a process can have sufficient faith in that process to abide by and …

Policy Brief: The Occ Has Violated Four Federal Statutes By Allowing National Trust Banks To Engage In Crypto-Related Nonfiduciary Activities, Including The Issuance Of Stablecoins, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

The Office of the Comptroller of the Currency (“OCC”) has recently approved charters for nine limited-purpose national trust banks controlled by crypto firms (hereinafter “NTB charter approvals”). The OCC’s NTB charter approvals permit those national trust banks to engage in a wide range of nonfiduciary crypto-related activities. The OCC’s NTB charter approvals violate four federal statutes and must be rescinded. Under 12 U.S.C. §§ 27(a) and 92a, national trust banks are authorized to exercise only fiduciary powers and to act solely in federally-recognized fiduciary capacities. Sections 27(a) and 92a forbid the OCC from allowing national trust banks to engage in …

Taking Legal Pluralism Seriously: Federalism, Diversity Jurisdiction, And The Erie Doctrine, Paul S. Berman, Emma Bjeldanes

GW Law Faculty Publications & Other Works

The U.S. Supreme Court’s watershed decision in Erie Railroad Co. v. Tompkins is sometimes read to require federal judges hearing claims based on federal diversity jurisdiction to apply state law, essentially as if the case were being decided in a state court. The doctrine therefore appears to create a categorical rule disempowering federal courts from ever departing from state law, despite the Constitution’s grant of federal jurisdiction. However, as the Court’s 2026 Erie case, Berk v. Choy, makes clear, sometimes the Erie analysis is used to empower federal courts to override clear state policy choices embodied in state law simply …

Brief Of Amici Curiae Professor Steven L. Schooner In Support Of Plaintiffs-Appellees And Affirmance In Epa Et Al. V Green & Healthy Homes Initiative, Inc. Et Al., (U.S. Fourth Circuit, 25-1808), May 19, 2026., Steven L. Schooner, David Livshiz, Nathaniel Castellano, Jayna Rust, Catherine Katz, Miguel Serrano

GW Law Faculty Publications & Other Works

This is an amicus brief in support of affirmance in EPA et al. v Green & Healthy Homes Initiative, Inc. et al., (D.C. Md. 1:25-cv-01096).  Amicus is interested in ensuring that contractors, grantees, and others who do business with the Government and/or participate in Government funded programs are treated fairly when pursuing their rights and remedies and also ensuring that public institutions (particularly the courts) appreciate and account for the many ways that Congressional mandates, public contracts, grants, cooperative agreements, and other funding mechanisms impact  the public's quality of life.

The brief asserts that the Government errs and does a …

Brief Amicus Curiae Of Administrative And Constitutional Law Professors In Support Of Petitioners, Alan B. Morrison, Robert L. Glicksman, Richard J. Pierce Jr, Peter Strauss, Jeffrey Lubbers

GW Law Faculty Publications & Other Works

This amicus brief was filed in DOL v. Sun Valley Orchards by Professors Alan Morrison, Rob Glicksman, Richard Pierce, Peter Strauss and Jeffrey Lubbers. Amici argue that the Supreme Court should reverse the Third Circuit’s decision that DOL lacks the power to adjudicate disputes involving the safety and adequacy of the housing, food, and transportation provided by employers to non-citizen temporary agricultural workers. The Third Circuit’s holding was based on its belief that the constitution confers the power to adjudicate such disputes exclusively on Article III courts.

Amici argue that the dispute at issue falls squarely within the scope of …

The Mistaken Turn To Church Autonomy, Peter J. Smith, Robert W. Tuttle

GW Law Faculty Publications & Other Works

With increasing frequency and intensity, courts and commentators have advanced a doctrine of church autonomy that shields matters of internal church affairs from judicial scrutiny. Judges and scholars have invoked the doctrine in cases that involve disputes over property, employment, and governance of religious institutions. When applied, the doctrine ordinarily requires the dismissal of suits by aggrieved employees, congregants, or affiliated religious entities, thereby leaving employment and property disputes to unreviewable resolution by church authorities.

The turn to church autonomy is a regrettable mistake that contributes to the unjustifiable expansion of free exercise protections for religion at the expense of …

Promoting Firearm Industry Accountability For Civil And Human Rights Abuses In The United States Through Strategic Transnational Litigation, Arturo J. Carrillo, Jonathan E. Lowy, Emily Fallin

GW Law Faculty Publications & Other Works

The United Nations Guiding Principles on Business and Human Rights (UNGPs) have made substantial in-roads across a range of industries, but the firearm industry is not one of them. The United States is the largest producer of firearms for civilian acquisition in the world, yet U.S. firearm manufacturers, sellers, and distributors remain generally impervious to regulation. Moreover, federal and state legislation provides unique legal protections for firearm industry actors, rendering them largely shielded from accountability for contributing to gun deaths and injuries. This creates a paradox that fuels the endemic gun violence crisis in the United States and throughout the …

Two Heads Are Better Than One: Integrating International Law And Global Public Health Approaches To Firearm Violence To Promote Public Safety And Human Rights, Arturo J. Carrillo, Jonathan E. Lowy

GW Law Faculty Publications & Other Works

In his Advisory of June 25th, 2024, the U.S. Surgeon General, Vivek H. Murthy, declared firearm violence a public health crisis and presented a damning picture of the widespread deaths, injuries and trauma caused by gun violence in the United States. A critical feature of the firearm violence crisis in the United States that the Surgeon General did not expressly address in his report–or even mention–is the role of the manufacturers, distributors, and dealers of firearms, collectively referred to as “the gun industry.” It is an open secret that the U.S.-based firearm industry engages in manufacturing, marketing, distribution and sale …

Faster Than The Speed Of Law: Data Privacy And Judicial Deference In Matters Of Technological Development And Social Media, Andrew A. Bohon

Missouri Law Review

Judge Richard Posner, formerly of the Seventh Circuit, once wrote, “the courtroom is not the place for scientific guesswork, even of the inspired sort. Law lags science; it does not lead it.” The particular occasion for this maxim was a case in which Judge Posner disregarded the testimony of an expert witness who claimed the use of a nicotine patch had caused the plaintiff to suffer a heart attack—a claim with “no backing from scientific theory or data.” Cutting-edge technology is antithetical to the law, which is better-suited to an era of horse-drawn carriages and often requires judicial guesswork to …

Immigration And Nationality Law: Problems And Strategies | Third Edition (2026), Lenni Benson, Stepehn Yale-Loehr, Shoba Sivaprasad Wadhia

Books

The third edition of Immigration and Nationality Law: Problems and Strategies has been updated significantly to capture changing immigration law and policy. The text's overall size has been reduced, but it continues to have in-depth coverage, from expedited removal to constitutional analysis, from nonimmigrant visas to humanitarian relief.

This book uses the "problem method," allowing the reader to focus on a series of problems and to apply statutory, administrative, and case law materials. Ethical considerations are woven throughout the text as is the opportunity to consider policy implications. This book is designed for both law students and attorneys, covering statutory …

The Use Of State Discipline To Sanction Attorneys General And Other High-Ranking Legal Officers, Leslie C. Levin

Faculty Articles and Papers

The United States Attorney  General, state attorneys general, and high-ranking officials in their offices, like all lawyers, are subject to rules of professional conduct.  Increasingly,  when they  push the  boundaries of  these  rules and other well-established  professional  norms,  individuals  and  organizations  are  filing state  lawyer  disciplinary  grievances  against  them.  While  some  see  troubling conduct  by  these  high-ranking  legal  officers,  others  view  these  disciplinary grievances  as  politically  motivated.  State  lawyer  disciplinary  authorities  often try to avoid addressing these grievances. This article  examines  why it is nonetheless  important  for  state  lawyer  disciplinary  authorities—which  are  arms  of state courts—to act on certain grievances. …

Confessions In Cases Of Child Physical Abuse - A Capnet Study, Margaret R. Russell, Antoinette L. Laskey, Henry T. Puls, Suzanne P. Starling, Joanne N. Wood, Daniel M. Lindberg, Nancy S. Harper, Caitlin R. Mcnamara, Angela N. Bachim, Farah W. Brink, Lori D. Frasier, James D. Anderst, Porcia Vaughn, Kristine A. Campbell

Department of Pediatrics Faculty Publications

Objective

Prior research on confessions of physical abuse (PA) has explored mechanisms of injury. Little is known about conditions supporting a confession of abuse or how confessions may influence case outcomes.

Methods

This cross-sectional study of suspected PA in children age < 10 years at 10 centers participating in CAPNET, a multicenter child PA research network, included children with in-person Child Abuse Pediatrics (CAP) consultations between Feb 2021-Dec 2022 and excluded children without injury. Our focus was a confession of inflicted injury known to the CAP during clinical involvement. We compared child and clinical characteristics, out-of-home (OOH) placements, and arrests between cases with and without confessions. Multivariable models using generalized estimating equations (GEE) produced adjusted predicted probabilities (APP) clustering by CAPNET site.

Results

Confessions were known to CAPs in 115/4297 (2.7%) cases, with significant site variability. In a multivariable GEE model, confessions were more likely in cases with injuries with high-specificity for abuse (APP 6.0% vs 1.5%, p< 0.001), near-fatality (APP 5.5% vs 2.3%, p< 0.001), and older children (APP 4.8% vs 2.5%, p = 0.025). OOH placements and arrests were more common in cases with confessions. CAP awareness of confessions, OOH placements, and arrests did not follow racial or ethnic patterns seen in the US child welfare system. Lower socioeconomic status was associated with OOH placements and arrests but not CAP awareness of confessions.

Conclusions

Our findings highlight differences in case characteristics and outcomes where a confession is known to the CAP and raise questions about agency …

But Who Are The Victims? Reassessing The 568 Higher Education Cartel, James V. Koch

Economics Faculty Publications

Thirty prestigious independent American institutions of higher education were at some time members of the 568 higher education group (often labeled a cartel). Seventeen of them were sued by the U.S. Government and representative students who alleged that their meetings and deliberations resulted in collusion that caused students to pay higher prices. Twelve of the seventeen institutions subsequently settled their cases and by 2024 collectively had paid $284 million to do so. However, an inspection of these institutions' pricing reveals that the median 568 Group institution lowered its average real net annual cost to its undergraduate students by 19.07% between …

Unbundling 17 U.S.C. § 1202: Construing The Law’S Scope In Light Of Its Text, Purpose, And Remedies, Samuelson, Pamela, Stallman, Erik, Urban, Jennifer M.

Santa Clara Law Review

The Ninth Circuit will soon decide if five anonymous programmers can claim as much as $9 billion in statutory damages from OpenAI and GitHub for violations of an obscure law outlawing infringement-enabling removal or alteration of “copyright management information” (CMI). This Article closely analyzes that law, which is codified as §1202 of Title 17 of the U.S. Code. The law is remarkable in several respects. Statutory damages available for §1202 violations far exceed those available for actual copyright infringement. Copyright infringement need not be alleged, let alone found, for liability under §1202 to attach. Indeed, it is not even necessary …

Racial Disparities In Maternal Mortality: The Role Of Explicit And Implicit Bias In U.S. Healthcare, Lailah Allen

Capstone Showcase

Maternal mortality in the United States remains a critical public health crisis, with disproportionately high rates among Black and other minority women. Despite advances in obstetric medicine, racial disparities in pregnancy-related deaths persist due to structural inequities, implicit bias in healthcare delivery, unequal access to prenatal and postpartum care, and broader social determinants of health. Nationally, Black women are significantly more likely to experience severe maternal morbidity and mortality compared to White women, reflecting longstanding inequities embedded within the healthcare system. This paper examines the relationship between race, healthcare access, and maternal outcomes through a focused case study of and …

The Future Of Crypto-Asset Regulation Under Wto Law, Ines Willemyns

Vanderbilt Journal of Transnational Law

No abstract provided.

Legal Stories Without Villains, Alison Peck

Law Faculty Scholarship

Lawyers have always been storytellers, and cognitive science is increasingly demonstrating that human beings are wired to learn through story. But legal stories may have a dark side if, as theorists have recently suggested, stories motivate pro-social action by reinforcing in-group identification and out-group hatred. In an increasingly divided polity, are we doomed to stories that drive us toward social disintegration? A solution to the legal storyteller’s dilemma may be found in an ancient source: Aristotle’s Poetics. By crafting legal stories that track the elements of the Tragedy as described by Aristotle and adapted by modern storytellers from Broadway …

Table Of Contents, Loyola University Chicago International Law Review

Loyola University Chicago International Law Review

No abstract provided.

The Right Of Access To The Court In The Practice Of The European Court Of Human Rights And Constitutional Courts In Europe, Filip Novaković

Loyola University Chicago International Law Review

The right of access to a court is recognized as a fundamental component of the right to a fair trial under Article 6(1) of the European Convention on Human Rights (“ECHR”) and has emerged as a cornerstone of the European human rights system. Initially conceived as an implicit guarantee, the right has been progressively shaped by the jurisprudence of the European Court of Human Rights (“ECtHR”) and further developed through the practice of constitutional courts across Europe. This article examines the evolution of the right of access to courts, focusing on its scope, permissible limitations, and relationship to the broader …

Lost, Never Found: Syria's National Commission For The Missing, Sara Jordan

Loyola University Chicago International Law Review

This article discusses the enactment of Presidential Decree No. 19, enacted by interim Syrian President Ahmed al-Sharaa, which established the National Commission for the Missing. This body was created in May 2025 and is tasked with researching missing and forcibly disappeared persons, including creating a national database, providing legal and humanitarian support to victims’ families, and documenting cases. The Commission’s findings, however, cannot be used in criminal trials, and the international community, including groups such as Amnesty International, has voiced concerns about its potential ineffectiveness. Following a brief history of conflict under the Assad regime, this article offers an analysis …

The Zaporizhzhia Gambit: Great Power Conflict, Nuclear Hostage-Taking, And The P5'S Accountability Crisis, Arete Tsoukalas

Loyola University Chicago International Law Review

In a troubling precedent for modern warfare, Russian forces seized Europe’s largest nuclear facility, converting the delicate infrastructure of the Zaporizhzhia plant into a fortified military garrison rigged with explosives. Inside, Ukrainian engineers were reportedly held hostage, forced to operate the controls at gunpoint while enduring torture and the psychological terror of impending meltdown.¹ This is known as the Zaporizhzhia Nuclear Power Plant (“ZNPP”) Crisis.²

Within the reactor itself, the processes of producing nuclear energy cannot be abandoned, and constant custodianship is paramount.³ The intricacies and vulnerabilities of the fission process must be safeguarded, even during a …

Outsourcing Migration: A Comparative Analysis Of Border Externalization And The Future Of International Refugee Law, Shawn Yousefelahi

Loyola University Chicago International Law Review

The contemporary international refugee protection regime is formally anchored in the principle of non-refoulement (the prohibition against forcibly returning refugees and asylum seekers to the territories where their fundamental rights would be threatened) and the right to seek asylum at or near territorial borders. These principles have been increasingly undermined by state practices that relocate border enforcement and asylum processing beyond their territorial borders. This Article examines how the United States, the European Union, and European states operationalize a global non-entrée regime through safe third country removals and border externalization agreements that purport to comply with international law while functionally …

Food Stamp Participation And Health Outcomes In Ca Immigrants, Esther Kang

Scripps Senior Theses

The U.S. social welfare system includes programs aiming to increase access to nutritious food to reduce nutrition insecurity. However, studies suggest that immigrants continue to face disproportionate risks of nutrition insecurity and may face barriers to enrollment due to legal status. This study, using secondary data from the 2023 California Health Interview Survey, examines the associations between food stamp participation, food insecurity, and clinical diagnosis of diabetes among adult U.S.-born, naturalized, and non-citizen adults in California. The findings suggest that those enrolled in food stamps are more likely to report food insecurity than those who are not enrolled, and that …

Hryniak’S Erosion: Summary Judgment In Ontario, Suzanne Chiodo, Gerard J. Kennedy, Alyssa S. King

All Papers

No abstract provided.

Dokdo/Takeshima And Maritime Delimitation Between The Republic Of Korea And Japan: A Comment On Icj Dispute Resolution, Katherine Angell

Celebrating WCL Student Authors

The Republic of Korea (Korea) should agree to submit the issue of sovereignty over Dokdo/Takeshima and the issue of maritime delimitation in the East Sea/Sea of Japan to the International Court of Justice (ICJ) because the ICJ is likely to decide that Dokdo/Takeshima is Korean territory and the tensions in the East Sea/Sea of Japan can be resolved to allow further cooperation between the two nations. The ICJ is the primary avenue for peacefully resolving territorial and maritime delimitation disputes between nations, and the ICJ has developed a substantial body of case law analyzing these issues. The ICJ considers various …

The Intertemporal Law Doctrine’S Application To The Acquisition Of Colonies In The Americas, Kent Mcneil

All Papers

The intertemporal doctrine provides that international disputes have to be resolved in accordance with the international law that existed at the time the events giving rise to the dispute took place, not at the time the matter is adjudicated.1 It is thought to be impermissible to apply current standards to events that occurred in the past when different legal principles and rules were the norm. This doctrine applies as much to acquisition of colonies as to other international issues.2 So in order to determine whether a European nation acquired sovereignty over an overseas territory, it is necessary to determine and …