Digital Commons Network^™

Emerging Policy And Practice Issues (2019), Steven L. Schooner

GW Law Faculty Publications & Other Works

This paper/chapter, presented at the Thomson Reuters Government Contracts Year in Review Conference (covering 2019), attempts to identify the key evolving trends and issues in U.S. federal procurement for 2019-2020 and beyond. Consistent with prior practice, this chapter offers extensive coverage of the federal procurement 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 high degree of uncertainty currently being experienced in the public procurement sphere, dramatic increases to the micro-purchase and simplified acquisition thresholds, the work of the Congressionally-mandated Section 809 …

What’S Wrong About The Elective Share “Right”?, Naomi R. Cahn

GW Law Faculty Publications & Other Works

This Article examines one form of property rights available to a surviving
spouse, the elective share. The elective share serves as an override to a
testator’s stated intent by allowing the surviving spouse to choose to take a
portion of the decedent’s estate — even if the will explicitly disinherits the
surviving spouse. The Article analyzes a recent five-year period of state
cases raising elective share issues with the goal of determining the
circumstances under which an elective share is most likely to be contested.

The reported elective share disputes typically involve a subsequent spouse
challenging a will that leaves …

Eu Law In Populist Times: Crises And Prospects, Francesca Bignami

GW Law Faculty Publications & Other Works

EU Law in Populist Times: Crises and Prospects analyzes the sovereignty-sensitive EU law that has emerged over the past decade—in economic policy, human migration, internal security, and constitutional fundamentals (rule-of-law policies to combat democratic backsliding). These are legal areas at the heart of state sovereignty, over which the EU’s prerogatives accelerated following the multiple crises that hit beginning in 2009. They are also EU policies that occupy center stage in the acrimonious debates that have emerged between European establishment parties and populist political forces, precisely because of the huge economic, social, and constitutional stakes involved in reaching into core state …

Comment Letter In Opposition To The Occ's Proposed "True Lender" Rule, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

This comment letter opposes the adoption of a proposed rule published by the Office of the Comptroller of the Currency (“OCC”) on July 22, 2020. 85 Fed. Reg. 44223 (2020). The proposed rule would determine whether a national bank or federal savings association “makes a loan and is the ‘true lender’ in the context of a partnership between a bank and a third party, such as a marketplace lender.” Id. The proposed rule – to be codified at 12 C.F.R. 7.1031 – would provide that a national bank or federal savings association is deemed to “make” a loan if the …

The Price Of Prevention: Anti-Terrorism Pre-Crime Measures And International Human Rights Law,, Arturo J. Carrillo

GW Law Faculty Publications & Other Works

How far can law go to prevent violent acts of terrorism from happening? This Article examines the response by a number of Western democratic States to that question. These States have enacted special legal mechanisms that can be called ‘anti-terrorist pre-crime measures.’ Anti-terrorist pre-crime measures, or ATPCMs for short, are conditions or restrictions imposed on a person by law enforcement authorities as the outcome of a legal process set up to identify and neutralize potential sources of terrorist activity before it occurs. The issue is whether the ATCPMs regimes in existence today comply with the corresponding States’ international obligations under …

Covid, Crisis And Courts, Colleen F. Shanahan, Alyx Mark, Jessica K. Steinberg, Anna E. Carpenter

GW Law Faculty Publications & Other Works

Our country is in crisis. The inequality and oppression that lies deep in the roots and is woven in the branches of our lives has been laid bare by a virus. Relentless state violence against black people has pushed protestors to the streets. We hope that the legislative and executive branches will respond with policy change for those who struggle the most among us: rental assistance, affordable housing, quality public education, comprehensive health and mental health care. We fear that the crisis will fade and we will return to more of the same. Whatever lies on the other side of …

Order And Law In China, Donald C. Clarke

GW Law Faculty Publications & Other Works

The near half-century of the post-Mao era has almost universally been called one of construction of China’s legal system. But while great changes have taken place in China’s public order and dispute resolution institutions, other things have changed little or not at all. Most commentary focuses on the changes; this article, by contrast, will look at what has not changed—the important continuities that have persisted for over four decades.

This article argues that the scholarly community has accumulated over the past four decades a number of observations about China’s order maintenance institutions that are increasingly difficult to explain using the …

Covid-19: Lessons Learned In Public Procurement. Time For A New Normal?, Laurence Folliot Lallion, Christopher R. Yukins

GW Law Faculty Publications & Other Works

The COVID-19 crisis upended markets and assumptions in public procurement, and posed an almost existential threat to traditional procurement systems. Seismic changes in economic relationships – governments were no longer monopsonists, government officials failed as economic intermediaries between suppliers and the public, and supplies that were traditionally treated as private (such as medical equipment) suddenly became “public” goods under worldwide demand. Traditional trade rules were rendered irrelevant, as the goal was no longer simply to open individual procurements but rather to open borders to intense global demand. Although the disruption was revolutionary, ironically the solution is to return to first …

Codifying The Obligations Of States Relating To The Prevention Of Atrocities, Sean D. Murphy

GW Law Faculty Publications & Other Works

Exactly what types of obligations of States fall within the realm of “prevention” of atrocities, such as genocide, war crimes and crimes against humanity? It could generally be thought that some types of obligations are directly connected to prevention (obligations of prevention), while others are of a different nature, though bearing upon the issue of prevention (obligations relating to prevention). Based on a review of major multilateral treaties, this essay identifies six key obligations of States that relate, directly or indirectly, to the prevention of atrocities. Such obligations were deemed essential for inclusion in the International Law Commission’s 2019 articles …

‘Warming Up’ To Sustainable Procurement, Steven L. Schooner, Markus Speidel

GW Law Faculty Publications & Other Works

Procurement professionals will play a critical role in the belated but necessary effort to slow the pace of climate change. That critical, evolved role will lie in sustainable procurement, which, if effectively implemented, will dramatically alter markets and fundamentally change purchasing behaviors. To be effective, procurement professionals will need to rethink how we define our profession, assess our outcomes, and bring value to our government customers. Successfully establishing a sustainable procurement regime will require dramatic change, including, among other things, overcoming the persistent tyranny of low price, understanding and adopting lifecycle costing, considering externalities in the value proposition, and, of …

Taming The Megabanks: Why We Need A New Glass-Steagall Act, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

This blog post was published in The FinReg Blog (hosted by Duke’s Global Financial Markets Center) on September 24, 2020. It provides an overview of my book of the same title, published by Oxford University Press on October 2, 2020.

Understanding Global Legal Pluralism: From Local To Global, From Descriptive To Normative, Paul Schiff Berman

GW Law Faculty Publications & Other Works

As a scholarly project, global legal pluralism has been extraordinarily successful, and it is not difficult to see why. Legal pluralists had long observed that, in any given social context, people are regulated by multiple different legal and quasi-legal regimes and that these regimes are sometimes associated with formal state law, but sometimes they are not. Global legal pluralism took that insight and applied it to the post–Cold War international and transnational arena at just the right moment. Circa 1998, international and transnational institutions were proliferating, industry standard-setting bodies and corporate codes of conduct were taking on new prominence, and …

The Rocky Road To Energy Dominance: The Executive Branch’S Limited Authority To Modify And Revoke Withdrawals Of Federal Lands From Mineral Production, Robert L. Glicksman, Hillary M. Hoffman

GW Law Faculty Publications & Other Works

The Trump Administration’s implementation of its America First Energy Plan, whose goal is achieving U.S. “energy dominance,” has relied heavily upon public mineral development. Mineral development on federal lands is largely governed by statute. The statutory legal mechanisms by which the Executive Branch can “open” or “close” an area of federal lands to mineral development, whether onshore or offshore, are withdrawal, modification, and revocation.

The Federal Land Policy and Management Act (FLPMA) and the Outer Continental Shelf Lands Act (OCSLA) are the primary statutes that govern onshore and offshore mineral development on over 2 billion acres of federal lands. Both …

Regulation In The Biden Administration, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

Professor Pierce wrote this essay in which he predicts the regulatory actions of the Biden Administration at the request of a journal that specializes in reporting on regulatory developments to readers in the UK and the EU.

Solving The Challenges To World Trade, Steve Charnovitz

GW Law Faculty Publications & Other Works

World trade faces fundamental challenges. This essay examines six threats to the intellectual case for open trade: to wit, worries about ecology, fairness, morality, equity, security, and geopolitics. Together, these threats implicate a huge swath of international trade. One of the biggest indicators of diminishing support for trade is the moribund status of the leading institution of the trading system, the World Trade Organization (WTO). There are three branches of WTO governance and all three are in trouble: the judicial branch and its vacant Appellate Body, the executive branch and its vacant post of WTO Director-General, and the legislative branch …

Material Liberty And The Administrative State: Market And Social Rights In American And German Law, Francesca Bignami

GW Law Faculty Publications & Other Works

This chapter begins with a forgotten story from American constitutional law. Raymond Belcher worked for a coal mining company in Lynco, West Virginia. During his working life, he paid into the federal insurance scheme for disability—Social Security Disability Insurance (SSDI). Belcher later broke his neck on the job and claimed on his federal SSDI insurance. But he was in for a bad surprise. In 1965, after he began contributing but before he became disabled, Congress enacted an “offset” provision to reduce benefits for individuals like him who qualified for both state-run worker’s compensation and federal SSDI. Belcher went all the …

The Occ's And Fdic's Attempts To Confer Banking Privileges On Nonbanks And Commercial Firms Violate Federal Laws And Are Contrary To Public Policy, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

The Office of the Comptroller of the Currency (OCC) and the Federal Deposit Insurance Corporation (FDIC) have adopted several recent measures that attempt to confer benefits and privileges of banks on nonbank providers of financial services and commercial firms. The OCC’s and FDIC’s initiatives are unlawful and dangerous because they would allow nonbanks and commercial firms to subvert fundamental public policies embodied in federal laws governing banks and bank holding companies.

In 2018, the OCC announced that it would approve national bank charters for “fintech” firms that provide lending and payment services but do not accept deposits. The New York …

Great Powers And New Risks: What Businesses And Regulators Should Know About China’S Strategic Ambitions, F. Scott Kieff, Thomas D. Grant

GW Law Faculty Publications & Other Works

China’s geopolitical ambitions give rise to risks that government agencies and the businesses they regulate need to address. In particular, Military-Civil Fusion (MCF), a whole-of-government legal and administrative machinery created by the Chinese Communist Party (CCP), aims to give China’s military, as well as China’s state championed companies, the technologies essential to strategic competitiveness in the decades ahead. In service of China’s effort to acquire technology, MCF breaks down barriers of professional responsibility and confidentiality that organizations and individuals in the West take for granted. Through both executive and legislative action, the United States has begun to address MCF. To …

Gsa’S Commercial Marketplaces Initiative: Opening Amazon And Other Private Marketplaces To Direct Purchases By Government Users, Christopher R. Yukins, Abraham Young, Kristen Ittig, Eric Valle

GW Law Faculty Publications & Other Works

The U.S. General Services Administration (GSA) opened a new chapter in public procurement by awarding three contracts—to Amazon Business, Overstock.com, and Fisher Scientific—that will allow federal users to buy directly from online electronic marketplaces, with sales anticipated to total $6 billion annually. This proof-of-concept effort, dubbed the “commercial platforms” initiative by GSA, marks a radical departure from traditional procurement practices because it will allow individual Government users (not necessarily procurement officials) to make “micro-purchases” (generally up to $10,000) using Government purchase cards. By removing the federal procurement system as an intermediary in the purchasing process, and in essence outsourcing the …

The Death Of The Genus Claim, Dmitry Karshtedt, Mark A. Lemley, Sean B. Seymore

GW Law Faculty Publications & Other Works

The central feature of patent law in the chemical, biotechnology, and pharmaceutical industries is the genus claim – a patent that covers not just one specific chemical but a group of related chemicals. Genus claims are everywhere, and any patent lawyer will tell you they are critical to effective patent protection.

But as we show in this article, the law has changed dramatically in the last twenty-five years, to the point where it is no longer possible to have a valid genus claim. Courts almost always hold them invalid. Remarkably, they do this without having acknowledged that they have fundamentally …

Covid-19: Lessons Learned In Public Procurement. Time For A New Normal?, Laurence Folliot Lalliot, Christopher R. Yukins

GW Law Faculty Publications & Other Works

The COVID-19 crisis upended markets and assumptions in public procurement, and posed an almost existential threat to traditional procurement systems. Seismic changes in economic relationships – governments were no longer monopsonists, government officials failed as economic intermediaries between suppliers and the public, and supplies that were traditionally treated as private (such as medical equipment) suddenly became “public” goods under worldwide demand. Traditional trade rules were rendered irrelevant, as the goal was no longer simply to open individual procurements but rather to open borders to intense global demand. Although the disruption was revolutionary, ironically the solution is to return to first …

The Trans Panic Defense Revisited, Cynthia Lee

GW Law Faculty Publications & Other Works

Violence against transgender individuals in general, and trans women of color in particular, is a significant problem today. When a man is charged with murdering a transgender woman, a common defense strategy is to assert what is called the trans panic defense. The trans panic defense is not a traditional criminal law defense. Nor, despite its name, is it recognized as a stand-alone defense. Rather, trans panic is a defense strategy associated with the provocation or heat of passion defense. A murder defendant asserting trans panic will claim that the discovery that the victim was a transgender female—an individual thought …

Comment Letter In Opposition To The Occ's Proposed "Valid-When-Made" Rule, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

This comment letter responds to a proposed rule issued by the Office of the Comptroller of the Currency (OCC), which would “codify” an alleged federal common-law “principle” known as “valid-when-made.” The proposed rule would amend two of the OCC’s regulations – 12 C.F.R. 7.4001 and 12 C.F.R. 160.110 – by providing that “interest on a loan that is permissible” for a national bank or a federal savings association, under 12 U.S.C. 85 or 12 U.S.C. 1463(g)(1), “shall not be affected by the sale, assignment, or other transfer of the loan.” 84 Fed. Reg. 64229, 64230-31 (Nov. 21, 2019). Thus, the …

Creating A Trauma Informed College Campus, Rodney A. Palmer

Faculty Publications

Trauma has no limits and does not discriminate based on one’s gender, ethnicity, social standing, educational background or religious affiliation. Those affected by trauma are not only present in our neighborhoods, homes and congregations, but also in every academic institution. This pervasive issue demands a seamless and intentional multilevel-organizational approach which encompasses the primary, secondary and tertiary levels of academic preparation. Consequently, higher education institutions in providing optimal service to their constituents, should seek to create a campus culture that places high premium on the best-practices of a trauma-informed approach. This paper will discuss the key concepts associated with trauma …

Decisions In The Dark: Why "Pregnancy Exclusion" Statutes Are Unconstitutional And Unethical, Shea Flanagan

Northwestern University Law Review

Advance health care directives are tools that allow people to state their health care treatment wishes or designate a health care proxy in anticipation of being unable to make those decisions in the future, including preferences to remove life-sustaining medical treatment. However, thirty-six states currently have “pregnancy exclusion” laws that require physicians to void the advance directives of pregnant women receiving life-sustaining treatment. This Note assesses the constitutionality and ethics of state pregnancy exclusion statutes by employing a new five-category typology of current pregnancy exclusion laws. This Note argues that all categories of these statutes violate an individual’s constitutional rights …

Legal Strategies For Reining In "Unconscionable" Prices For Prescription Drugs, Michelle M. Mello, Rebecca E. Wolitz

Northwestern University Law Review

Policy discussions about the affordability of prescription drugs in the United States are infused with the theme that drug prices are unconscionably high. Many of the policy interventions proposed in Congress, the White House, and the states adopt this frame, authorizing regulatory action when prices exceed particular thresholds or otherwise constitute “price gouging” on the part of drug companies. Unsurprisingly, such initiatives have prompted legal challenges by the biopharmaceutical industry. State laws in particular are vulnerable to challenges on a number of grounds. In this Article, we focus on one avenue of challenge that has received little scholarly attention in …

Commandeering, Preemption, And Vehicle Emissions Regulation Post-Murphy V. Ncaa, Amelia Raether

Northwestern University Law Review

The Clean Air Act is often heralded as a paragon of cooperative federalism. The Act’s approach to vehicle emissions regulation in particular prescribes a unique partnership between the federal government and the state of California: while all states are bound by federally mandated vehicle emissions requirements, California may set more stringent standards in recognition of its historic role on the leading edge of environmental protection. However, in August 2018, the Environmental Protection Agency proposed not only to roll back the national emissions regulations, but also to revoke California’s ability to set more stringent standards, which include limits on greenhouse gas …

Communicating Simply, But Not Too Simply: Reporting Of Participants And Speech And Language Interventions For Aphasia After Stroke, Release Collaboration, Marian C. Brady, Myzoon Ali, Kathryn Vandenberg, Linda J. Williams, Louise R. Williams, Masahiro Abo, Frank Becker, Audrey Bowen, Caitlin Brandenburg, Caterina Breitenstein, Stefanie Bruehl, David A. Copland, Tamara B. Cranfill, Marie Di Pietro-Bachmann, Pamela Enderby, Joanne Fillingham, Federica Lucia Galli, Marialuisa Gandolfi, Bertrand Glize, Erin Godecke, Neil Hawkins, Katerina Hilari, Jacqueline Hinckley, Simon Horton, David Howard, Petra Jaecks, Elizabeth Jefferies, Luis Mt Jesus, Maria Kambanaros, Eun Kyoung Kang, Eman M. Khedr, Anthony Pak-Hin Kong, Tarja Kukkonen, Marina Laganaro, Matthew A. Lambon-Ralph, Ann Charlotte Laska, Béatrice Leemann, Alexander P. Leff, Roxele R. Lima, Antje Lorenz, Brian Macwhinney, Rebecca Shisler Marshall, Flavia Mattioli, İlknur Maviş, Marcus Meinzer, Reza Nilipour, Enrique Noé, Nam-Jong Paik, Rebecca Palmer, Ilias Papathanasiou, Brigida F. Patricio, Isabel Pavão Martins, Cathy Price, Tatjana Prizl Jakovac, Elizabeth Rochon, Miranda L. Rose, Charlotte Rosso, Ilona Rubi-Fessen, Marina B. Ruiter, Claerwen Snell, Benjamin Stahl, Jerzy P. Szaflarski, Shirley A. Thomas, Mieke Van De Sandt-Koenderman, Ineke Van Der Meulen, Evy Visch-Brink, Linda Worrall, Heather Harris Wright

Research outputs 2014 to 2021

Purpose: Speech and language pathology (SLP) for aphasia is a complex intervention delivered to a heterogeneous population within diverse settings. Simplistic descriptions of participants and interventions in research hinder replication, interpretation of results, guideline and research developments through secondary data analyses. This study aimed to describe the availability of participant and intervention descriptors in existing aphasia research datasets.

Method: We systematically identified aphasia research datasets containing ≥10 participants with information on time since stroke and language ability. We extracted participant and SLP intervention descriptions and considered the availability of data compared to historical and current reporting standards. We developed an …

Sdg 3: Good Health And Well-Being - Framing Targets To Maximise Co-Benefits For Forests And People, Rosemary A. Mcfarlane, John Barry, Guéladio Cissé, Maya Gislason, Marta Gruca, Kerryn Higgs, Pierre Horwitz, Giang Nguyen, Jane O'Sullivan, Subhashis Sahu, Colin D. Butler

Research outputs 2014 to 2021

Key Points: The achievement of SDG 3 depends on many other SDGs; some SDGs are logically inconsistent, especially in the attempt to increase conventionally defined GDP while preserving natural capital. Any short-term gains for human health from further forest conversion (e.g. food production) creates short- and long-term, direct and indirect health risks for humans, as well as for other biota. Failure to ensure universal access to sexual and reproductive healthcare services (including family planning) will increase pressure on forests at local, regional and global scales. The burning and clearing of forests cause significant harm to health via impaired quality of …

William Shea Dies, Paul J. Ray

Faculty Publications

No abstract provided.