Law Commons^™

To Find The Best Future System Of Agency Adjudication We Should Return To The Past, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

Professor Pierce wrote this essay for inclusion in a symposium on the future of agency adjudication:

In 1946, Congress and the Supreme Court unanimously embraced a method of conducting agency adjudications. We abandoned that method gradually through a variety of steps that we have taken in the ensuing years. We should return to the original model for conducting agency adjudications.

In section one, I describe and evaluate the method of agency adjudication that Congress adopted in the Administrative Procedure Act of 1946 after years of study and debate. In section two, I describe and criticize the changes that we have …

The Unintended Consequences Of International Trade Law Adjudicatory Exceptionalism, Aram Gavoor

GW Law Faculty Publications & Other Works

On account of the fact that first impression judicial review over federal questions of international trade law is committed to the U.S. Court of International Trade, a national Article III court with appellate review vesting with the U.S. Court of Appeals for the Federal Circuit, advocates often litigate their cases in a vacuum from other areas of law. This essay argues that such an approach is unsupported by the statutory framework of the U.S. Court of International Trade, which was meant to operate under traditional Article III administrative law review norms. This essay also argues that advocates would strategically benefit …

Fool Me Once, Shame On You: Promoting Corporate Accountability For The Human Rights Impacts Of Climate Washing, Randall S. Abate

GW Law Faculty Publications & Other Works

Effective climate change governance faces two overarching challenges. The first is mobilizing the political will to regulate climate change with sufficient ambition. Second, when regulatory measures are in place to address climate change, the next challenge is ensuring that governmental and private sector entities are on track to comply with these time-sensitive climate governance commitments. This article addresses the second challenge. It reviews “climate washing” litigation that seeks to hold fossil fuel companies and other private sector entities accountable for misleading the public about their compliance with climate change mandates or goals. The article argues that climate washing tactics threaten …

Brief Of Amici Curiae Administrative Law Scholars In Support Of Petitioner In Sec V. Jarkesy, Ronald M. Levin, Alan B. Morrison, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

This is an amicus brief that several scholars have filed in the Supreme Court in SEC v. Jarkesy. The brief argues that (1) the double-for-cause removal requirement of Free Enterprise Fund v. PCAOB should not apply to ALJs at the SEC; and (2) the Seventh Amendment does not apply to administrative adjudication at the SEC.

Common Law Statutes, Charles Tyler

GW Law Faculty Publications & Other Works

A “common law statute” is an important type of federal statute, the defining feature of which is that it resists standard methods of statutory interpretation. The category in-cludes such important statutes as the Sherman Act, § 1983, and the Labor Management Relations Act, among others. Despite the manifest significance of this category, existing caselaw and legal scholarship lack a minimally defensible account of how courts should decide cases arising under common law statutes. This Article supplies such an account. It argues that judges should decide cases arising under common law statutes by applying rules representing a consensus among American courts …

Fall 2023 Supplement To Brauneis & Schechter, Copyright: A Contemporary Approach, Robert Brauneis, Roger Schechter

GW Law Faculty Publications & Other Works

This Fall 2023 Supplement is the product of our effort to capture important developments in copyright law since the publication of the second edition of Copyright: A Contemporary Approach. It includes three Supreme Court decisions as principal cases: the fair use cases of Google LLC v. Oracle America, Inc. (p. 23) and Andy Warhol Foundation v. Goldsmith (p. 41) and the 2020 decision about copyright protection for state statutes, Georgia v. Public.Resources.Org (p. 74).. (Because there are now so many Supreme Court fair use cases to cover, this supplement also includes a note on Harper & Row, Publishers v. Nation …

Leveraging The Federal Government’S Buying Power To Mitigate Climate Change, Polly Hall, Tim Cooke, Steven L. Schooner

GW Law Faculty Publications & Other Works

As global temperatures continue to rise, this brief article focuses on the evolution of sustainable public procurement (primarily in the United States federal or central government marketplace).

Among other things, the article introduces expanding efforts by the National Contract Management Association (NCMA) and its community of practice (COP) to raise awareness of the procurement profession's and community's role in adapting to and mitigating climate change, support knowledge sharing about existing work in this area, provide resources and training to contracting professionals, and integrate sustainability into contracting professional standards. Ultimately, what procurement officials buy, how they buy, and who they buy …

Eu Foreign Subsidies Regulation Update: Risks And Responsibilities For Foreign Firms In Eu Public Procurement Markets, Pascal Friton, Ramona Ader, Christopher R. Yukins

GW Law Faculty Publications & Other Works

The European Union’s Foreign Subsidies Regulation (FSR) (Regulation (EU) 2022/2560 of the European Parliament and of the Council of 14 December 2022 on foreign subsidies distorting the internal market) has now entered into force, along with an implementing regulation (Regulation (EU) 2023/1441 of 10 July 2023), which provide important clarifications for foreign firms competing for major awards in EU procurement markets. The FSR is the EU’s effort to address distortive foreign government subsidies in the EU internal market, including in public procurement. The EU restricts Member States’ power to subsidize domestic firms under the EU’s “State aid” doctrine; the FSR …

Strengthening The Law Of Self-Defense After Bruen, Cynthia Lee

GW Law Faculty Publications & Other Works

On June 22, 2022, the Supreme Court issued its opinion in New York State Rifle & Pistol Association v. Bruen, striking down New York’s over 100-year-old law requiring individuals seeking to carry a firearm concealed in public to show a special need for self-protection. Holding that New York’s law violated the Second Amendment, the Court rejected the means-end scrutiny that lower courts had previously used to determine whether firearms restrictions comported with the Second Amendment, explaining that the appropriate test for evaluating the constitutionality of a firearms restriction is whether it is consistent with the Second Amendment’s text and historical …

Schutte & Polansky: Shifting The Landscape Of False Claims Act Litigation & Compliance, Jessica Tillipman, Teddie Arnold

GW Law Faculty Publications & Other Works

The Supreme Court issued two opinions in June 2023 that are set to alter the False Claims Act (“FCA”) landscape for years to come. In United States ex rel. Schutte v. SuperValu Inc., 143 S. Ct. 1391 (2023) the Court elevated the scienter element of the FCA in cases dealing with a defendant’s compliance with law or regulation, whereby no longer can a defendant point to an objective interpretation of an ambiguous law or regulation to the exclusion of a company’s subjective knowledge at the time of claim submission. In United States, ex rel. Polansky v. Exec. Health Res., Inc., …

The Democratic Problems With Washington As The Capital, David Fontana

GW Law Faculty Publications & Other Works

Democracy demands a capital city that represents a country and is not removed from it. If the government is to be of the people and for the people, then the capital must be able to relate to the people—and the people to the capital. In the United States, democracy struggles not just because of what happens outside of and comes to Washington, but because of what happens inside Washington. The federal government, in other words, faces democratic problems because of the type of place that Washington is. There are many factors to consider in deciding where a country should be …

Data Is What Data Does: Regulating Use, Harm, And Risk Instead Of Sensitive Data, Daniel J. Solove

GW Law Faculty Publications & Other Works

Heightened protection for sensitive data is becoming quite trendy in privacy laws around the world. Originating in European Union (EU) data protection law and included in the EU’s General Data Protection Regulation (GDPR), sensitive data singles out certain categories of personal data for extra protection. Commonly recognized special categories of sensitive data include racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, health, sexual orientation and sex life, biometric data, and genetic data.

Although heightened protection for sensitive data appropriately recognizes that not all situations involving personal data should be protected uniformly, the sensitive data approach …

Congressional Testimony: Shareholder Proposals, Index Fund Voting And The Need For Proxy Advisor Reform, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

This Congressional testimony, requested by the House Financial Services Committee, reviews the history and current state of the federal shareholder proposal rule and how it has been seized by special interests to push agendas at odds with shareholder interests; ponders the conundrum that passive investment funds deign to actively vote shares without either knowledge or authority; and laments how proxy advisors, intended to support such passive funds, make matters worse through a lack of both accountability and incentives to promote accuracy rather than expediency. Congress should restore the legitimacy of the shareholder proposal process, revisit and/or eliminate voting by index …

Feature Comment: Omb Issues Final Build America, Buy America (Baba) Guidance Which May Trigger Compliance, Enforcement And Trade Issues—And Bid Protests, Christopher R. Yukins, Kristen E. Ittig

GW Law Faculty Publications & Other Works

The Biden administration’s Office of Management and Budget (OMB) has issued final guidance implementing the “Build America, Buy America” (BABA) provisions in the Infrastructure Investment and Jobs Act (IIJA), which President Joseph Biden signed in November 2021. The final guidance is intended, as President Biden said in his 2023 State of the Union address, to ensure that when hundreds of billions of dollars of federally funded infrastructure projects are built with federal grant funding, “we’re going to Buy American.” But because of its extraordinary complexity and the conflicts it creates with other domestic-preference laws, in practice the new OMB guidance …

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 …

Emerging Policy And Practice Issues (2022), Steven L. Schooner, David J. Berteau

GW Law Faculty Publications & Other Works

This paper/chapter, presented at the Thomson Reuters Government Contracts Year in Review Conference (covering 2022), attempts to identify some the leading, evolving trends and issues in U.S. federal procurement. Consistent with prior practice, this chapter offers extensive coverage of the federal procurement (and grant) and defense spending trends and attempts to predict what lies ahead, particularly with regard to legislative and executive activity. This year's chapter begins with a cautionary note about the federal debt ceiling and discusses, among other things, the flurry of regulatory activity in the public procurement sphere as the Biden administration accelerates efforts to restore and …

The Digital Services Act And The Brussels Effect On Platform Content Moderation, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

The EU’s latest regulation of social media platforms – the recently enacted Digital Services Act – will create tensions and conflicts with the US speech regime applicable to social media platforms. The DSA, like the precursor regulations of social media platforms by the EU, will further instantiate the Brussels Effect, whereby EU regulators wield powerful influence on how social media platforms moderate content on the global scale. This is because the DSA’s regulatory regime (with its huge penalties for noncompliance) will incentivize the platforms to skew their global content moderation policies toward the EU’s instead of the United States’s balance …

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 …

An Intersectional Examination Of U.S. Civil Justice Problems, Kathryne M. Young, Katie Billings

GW Law Faculty Publications & Other Works

Millions of Americans face civil justice problems each year, and most of these problems never make it to court, let alone to a legal expert. Although research has established that race and class are associated with a person’s chance of experiencing a civil justice problem, detailed intersectional examinations of everyday people’s justice experiences are largely absent. A more in-depth empirical understanding of the access to justice crisis can equip lawyers, policymakers, and other designers of justice interventions to create higher-impact, more efficient, and better- targeted programs to meet the justice needs of everyday people.

This Article fills a critical gap …

Establishment Clause Mythology, Peter J. Smith, Robert W. Tuttle

GW Law Faculty Publications & Other Works

For 75 years, the Supreme Court’s opinions have reflected stark conflict between two competing narratives about the Establishment Clause’s meaning and legal foundation. One view holds that the Constitution requires a separation between church and state. The other view asserts that the government may promote religion. The former view—which we call separationism—is based on the framers’ understanding of the nature of civil government, and on a political theory of liberal pluralism. The latter view—which we call religionism—is usually grounded in tradition, and principally has its roots in the Second Great Awakening of the nineteenth century and its urge to transform …

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 …

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 Carceral Home, Kate Weisburd

GW Law Faculty Publications & Other Works

In virtually all areas of law, the home is the ultimate constitutionally protected area, at least in theory. In practice, a range of modern institutions that target private life—from public housing to child welfare—have turned the home into a routinely surveilled space. Indeed, for the 4.5 million people on criminal court supervision, their home is their prison, or what I call a “carceral home.” Often in the name of decarceration, prison walls are replaced with restrictive rules that govern every aspect of private life and invasive surveillance technology that continuously records intimate information. While prisons have always been treated in …

Promoting Sustainable Public Procurement Through Economic Policy Tools: From Moral Suasion To Nudging, Desiree Klingler, Steven L. Schooner

GW Law Faculty Publications & Other Works

As the climate crisis accelerates and governments aspire to achieve more circular economies, this article encourages experimentation with innovative, interdisciplinary, and sustainable approaches that exploit governments’ enormous spending power. Rather than waiting for legislative or regulatory changes, the article advocates driving sustainable public procurement (SPP) through efficient and available behavioral-economics-inspired “green defaults,” nudging, persuading procurement officials, and, more broadly, rethinking the value proposition when confronted with price premiums.

The Remains Of The Establishment Clause, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

The very first words of the Bill of Rights mark religion as constitutionally distinctive. Congress may not enact laws respecting an establishment of religion – in particular, acts of worship, religious instruction, or proselytizing. A pluralist, liberal democracy requires separation of civil government from these distinctively religious activities.

From the middle of the 20 th Century until Justice O’Connor’s retirement in 2005, the Supreme Court energetically animated that principle of distinctiveness. In a series of decisions in the last decade, however, the Court has upended its longstanding approach to what is distinctive about religion in constitutional law. Notably, this process …

Compensation Under The Microscope: Pardons And Compensation, Jeffrey Gutman

GW Law Faculty Publications & Other Works

A governor’s pardon power is a potentially double-edged sword. On the one hand, a governor can provide justice for a deserving criminal defendant when the judicial branch cannot or does not act. On the other hand, the governor can use the pardon power for less altruistic purposes, such as to benefit friends or political allies.

The most recent controversial use of the pardon power occurred in Kentucky. According to the Louisville Courier-Journal, Governor Matt Bevin of Kentucky issued 670 pardons and commutations during his last two months of office, including 254 pardons issued in the month between his re-election defeat …

Now You See Them, Now You Don’T: International Court-Appointed Experts, Wartime Reparations, And The Drc V. Uganda Case, Sean D. Murphy, Yuri Parkhomenko

GW Law Faculty Publications & Other Works

One intersection between scholarship and practice in international humanitarian law (IHL) is observable in international litigation concerning violations of the law of war. An interesting example in this regard recently arose in the case before the International Court of Justice (ICJ) by the Democratic Republic of the Congo against Uganda for war-related claims. At the reparations phase, the Court decided not to rely solely on the submissions of the Parties, but to task certain scholars and other experts to answer evidentiary questions. Yet, when the Court’s judgment was issued in February 2022, the role of these experts turned out to …

We Must Protect Investors And Our Banking System From The Crypto Industry, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

The crypto boom and crash of 2020-22 demonstrated that (i) cryptocurrencies with fluctuating values are extremely risky and highly volatile assets, and (ii) cryptocurrencies known as “stablecoins” are vulnerable to systemic runs whenever there are serious doubts about the adequacy of reserves backing those stablecoins. Crypto firms amplified the crypto boom with aggressive and deceptive marketing campaigns that targeted unsophisticated retail investors. Scandalous failures of prominent crypto firms accelerated the crypto crash by inflicting devastating losses on investors and undermining public confidence in crypto-assets.

Federal and state regulators have allowed banks to become significantly involved in crypto-related activities. Several FDIC-insured …

U.S. Department Of Justice Executive Branch Engagement On Litigating The Administrative Procedure Act, Aram Gavoor, Steven A. Pratt

GW Law Faculty Publications & Other Works

The Administrative Procedure Act is a broadly worded statute that has benefitted from caselaw to fill many of its gaps, ambiguities, and inconsistencies. But the case method directs judicial attention to slivers of APA inquiry that are required to resolve cases in as-applied challenges to rules and adjudications. There is another method of APA interpretation that has never been deployed in the statute’s 77-year life—that of intentional collaboration between the executive branch and the judiciary. Acting on their litigation and case management authorities as well as their unique power to persuade the judiciary on questions of administrative procedure, the Attorney …

The Eu Foreign Subsidies Regulation: Implications For Public Procurement And Some Collateral Damage, Pascal Friton, Max Klasse, Christopher R. Yukins

GW Law Faculty Publications & Other Works

The European Union has erected a significant new barrier to foreign competitors that seek to compete in EU Member State public procurements. In the European Union there are uniform rules (known as “State aid” rules) on subsidies for all Member States, which are intended to ensure that competition in the internal market is not distorted by government subsidies. To counter (perceived) disadvantages of EU firms when competing with competitors from non-EU countries not subject to the EU “State aid” regime, the EU has adopted the Foreign Subsidies Regulation (FSR), which entered into force in January 2023 and will go into …