Law Commons^™

Review Essay: Marta Cartabia And Nicola Lupo, “The Constitution Of Italy: A Contextual Analysis” (2023), Francesca Bignami

GW Law Faculty Publications & Other Works

In this review essay, I showcase aspects of Marta Cartabia’s and Nicola Lupo’s The Constitution of Italy that set it apart from standard texts and that make it an excellent resource on Italian government and public law. Then, I focus on two elements of the Italian constitutional order that are discussed in the book and that are unique when seen in comparative context—the non-hierarchical organization of the Italian judiciary and the salience of social rights. I argue that future research on these aspects of the Italian case could make an important contribution to cutting-edge debates in the field of comparative …

We Need A New Glass-Steagall Act To End The Toxic Symbiosis Between Universal Banks And Shadow Banks, Which Professor Corrigan Has More Fully Revealed, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

Patrick Corrigan’s recent article highlights the abuses of securitization by universal banks during the subprime lending boom that led to the Global Financial Crisis of 2007–09 (GFC). Professor Corrigan’s article focuses on what Zoltan Pozsar and other researchers have called “internal” shadow banking—namely, the origination and securitization of hazardous loans by universal banks through nonbank affiliates, including broker-dealer subsidiaries and off-balance- sheet securitization vehicles. I agree with Professor Corrigan that the enormous credit risks generated by universal banks and their “internal” shadow banking affiliates played a major role in precipitating the GFC.

Professor Corrigan’s article gives less attention to what …

The Future Of Jurisdiction, Paul S. Berman

GW Law Faculty Publications & Other Works

A new paradigm for conceptualizing the doctrine of personal jurisdiction is long overdue. In the 19th century the U.S. Supreme Court established a firm territorialist approach to jurisdiction befitting a geographically spread-out country with many local micro-economies. The more flexible “minimum contacts” test articulated in 1945 by International Shoe v. Washington ushered in a 20th century vision responding to increased automotive transportation and national industrial production. But now, at least three decades into the Internet and information economy era, the U.S. Supreme Court has yet to land on a coherent jurisdictional framework for the new century.

It’s not for want …

Policy Brief: Congress Should Reject The Lummis-Gillibrand Stablecoin Bill Because It Would Endanger Consumers, Investors, And Our Financial System, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

On April 17, 2024, Senators Cynthia Lummis (R-WY) and Kirsten Gillibrand (D-NY) introduced a bill entitled “The Lummis-Gillibrand Payment Stablecoin Act.” The bill’s declared purpose is to create “a clear regulatory framework for payment stablecoins that will protect consumers, enable innovation and promote U.S. dollar dominance while preserving the dual banking system.”

Contrary to its stated purpose, the Lummis-Gillibrand bill would establish a weak and deeply flawed regulatory regime for stablecoins, thereby exposing consumers, investors, and our financial markets to grave dangers. The bill would allow stablecoins, which are volatile, deposit- like instruments, to be offered to the public without …

Feature Comment: Ethics, Compliance, And The Dispiriting Saga Of Craig Whitlock’S Fat Leonard, Steven L. Schooner

GW Law Faculty Publications & Other Works

This essay discusses the forthcoming book, Fat Leonard: How One Man Bribed, Bilked, and Seduced the U.S. Navy (480 pp, Simon & Schuster, 2024), authored by Washington Post investigative reporter, Craig Whitlock. The book chronicles the extraordinary ''Fat Leonard" saga (or scandal), involving Glenn Marine, an Asia-based ship husbanding contractor, and its "business" with the U.S. Navy. The animating character, not surprisingly, is Leonard Francis, and the book spans his career and demise, which eventually prompted investigations (of hundreds of Naval servicemembers, including 90 admirals), multiple criminal plea bargains, and a staggering number of military administrative actions.

On the one …

The Centennial Of Meyer And Pierce: Parents’ Rights, Gender-Affirming Care, And Issues In Education, Ira C. Lupu

GW Law Faculty Publications & Other Works

This paper was prepared for a Symposium marking the centennial of the Supreme Court’s decisions in Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925). At their inception, Meyer and Pierce reflected constitutional principles of economic freedom and parental control of their children’s education. Part I traces the path of ideas put in motion by Meyer and Pierce. These include the decline of their economic freedom component and the broader grounding of their doctrines of parental authority. Eventually, the legacy of Meyer and Pierce expanded to include First Amendment concerns of religious exercise and knowledge acquisition; Fourteenth Amendment …

Food Procurement: An Essential Ingredient To Mitigating Climate Change And Enhancing Public Health, Chloë Waterman, Rachel Clark, Steven L. Schooner

GW Law Faculty Publications & Other Works

This short article addresses a critical, but often underappreciated, aspect of the evolving suite of efforts to reduce greenhouse gas (GHG) emissions: food and agriculture systems, which account for at least a quarter of GHG emissions and more methane emissions than any other sector. The article invites government leadership to become more intentional in focusing on sustainable food procurement as a key strategy to mitigate climate change. The authors argue that public food procurement can – and should – be leveraged to generate a wide range of cascading social benefits beyond mitigating climate change and improving public health, including worker …

Durability, Flexibility And Plasticity In The U.N. Convention On The Law Of The Sea, Sean Murphy

GW Law Faculty Publications & Other Works

The overall resilience of the U.N. Convention on the Law of the Sea during the forty years since its adoption in 1982—its durability, its flexibility and its plasticity in the face of myriad challenges that have unfolded over time—is largely attributable to certain design features within the Convention, to a willingness to ‘bend’ the Convention toward practical outcomes when necessary, and to the foresight of the drafters in closely tying the Convention to other agreements and standards, as well as to the general field of international law, so that the Convention might evolve as the world evolves. There are risks …

Firearms And The Homeowner: Defending The Castle, The Curtilage, And Beyond, Cynthia Lee

GW Law Faculty Publications & Other Works

In the spring of 2023, a series of back-to-back shootings shook the nation. A Black teenager in Missouri trying to pick up his two younger siblings went to the wrong door and rang the doorbell. The homeowner came to the door with a gun and, without saying a word, fired two shots at the Black teenager, hitting him in the face and the arm. A few days later, a Caucasian woman and her friends in upstate New York, looking for a party, drove up the wrong driveway. The homeowner came out of his house with a shotgun and fired two …

Bystanders To A Public Health Crisis: The Failures Of The U.S. Multi-Agency Regulatory Approach To Food Safety In The Face Of Persistent Organic Pollutants, Katya S. Cronin

GW Law Faculty Publications & Other Works

Per- and polyfluoroalkyl substances (“PFAS”) are devastating our food systems and our health. Recent studies link even small exposure to PFAS to a host of adverse health outcomes, including cancer, autoimmune diseases, thyroid disease, liver damage, childhood obesity, infertility, and birth defects.

Food consumption is a primary route of PFAS exposure. PFAS are omnipresent at dangerous levels in our marine and agricultural environments, including in water, soil, fertilizers, compost, and air. From there, they can find their way into virtually every plant, fish, animal, and animal product, and ultimately (in the greatest concentration) into the consumer. In addition, PFAS-laden food …

Feature Comment: Don’T Let Post-Employment Conflicts Derail Your Contract Award, Jessica Tillipman, Bryan Dewan

GW Law Faculty Publications & Other Works

Often referred to as “revolving door” restrictions, the U.S. Government has devised numerous laws, policies and procedures designed to combat unethical or anti-competitive conduct that may stem from a Government employee’s decision to leave federal service. The laws range from ethics restrictions designed to minimize the appearance of impropriety while a federal employee endeavors to leave the Government, to criminal laws, which seek to punish conflicts of interest and improper conduct that may occur after Government service concludes.

In addition to the ethical and criminal considerations that must be taken into account when navigating the Government’s myriad post-Government employment restrictions, …

A Transatlantic Analysis Of Eu And U.S. Strategies In “Green Procurement", Marta Andhov, Christopher R. Yukins

GW Law Faculty Publications & Other Works

As governments the world over move to reduce global warming, public procurement has become an increasingly important means of leveraging governments’ vast purchasing power to reduce greenhouse gas (GHG) emissions through “green” or environmentally sustainable procurement. This article reviews emerging strategies in green procurement in the European Union and the United States. The article notes that those green procurement strategies are remarkably consistent on both sides of the Atlantic, from sector-specific preferences for low-carbon products to eco-labels to life-cycle cost analyses which take into account broader environmental impacts. On both sides of the Atlantic, however, parallel problems have emerged as …

The Intentional Pursuit Of Purpose: Nurturing Students’ Authentic Motivation For Practicing Law, Katya S. Cronin

GW Law Faculty Publications & Other Works

“Why do you want to pursue a career in the law?” Nearly every aspiring attorney answers this question as part of their law school application personal statement. They pour their hopes, dreams, and challenges into the answer to this question—their formative struggles, deeply held values, and resolve to make the world a better place as legal practitioners. Soon after starting law school, however, law students turn their attention from core aspirations to immediate concerns. Forgotten and slowly choked by the thorns of competition, prestige, and external validation, law students’ internal sense of self and purpose begin to wither away until, …

Extraterritoriality, Francesca Bignami, Giorgio Resta

GW Law Faculty Publications & Other Works

This chapter argues that the competing American ballot-box and European fundamental rights paradigms of regulatory law have marked the specific domain of digital regulation. These regulatory paradigms and their associated state interests are projected extraterritorially through the market power of Silicon Valley, on the one hand, and the privacy rights of European Union (EU) regulators, on the other hand. This chapter also analyzes recent developments in the EU, where there is now a state effort to make digital markets and, relatedly, an emerging preference for some data localization to promote both fundamental rights and economic and security interests. In China, …

Congressional Testimony: Problems With The Sec's Climate Disclosure Proposal, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

This Congressional testimony, requested by the House Financial Services Committee, identifies the fatal flaws embedded in the SEC's controversial climate disclosure rule, To summarize some primary problems, the Proposal:

• disregards evidence that most individual investors buy stocks primarily to save, not to influence climate policy;
• does not address the millions of individual American investors who need the SEC’s protection as they save for education, homes, retirement, and philanthropy; and
• ignores conflicts of interest between large asset managers and their beneficiaries—ordinary Americans—who have different preferences and goals.

In addition, the Proposal mandates irrelevant and burdensome disclosures that would harm investors by: …

Why Sustainable Procurement? Read All About It, Steven L. Schooner

GW Law Faculty Publications & Other Works

As procurement professionals (knowingly or unknowingly) await regulations promulgated in an effort to adapt to and mitigate climate change, significant opportunities exist within current federal regulations and policy to affect change. For now, the burden to stimulate innovation falls upon procurement professionals, individually, and collectively. In that context, information is power. What better place to start than with a good book?

With an eye towards informing productive conversations across the federal acquisition community about evolving expectations, practices, and policies in sustainable procurement, this article suggests some reading from the massive and diverse body of work related to climate change.

This …

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 …

Will Protectionism Prevail In Global Public Procurement?, Laurence Folliot Lalliot, Christopher R. Yukins

GW Law Faculty Publications & Other Works

For public procurement, the pendulum of trade policy seems to be swinging back towards protectionism. Governments can have a profoundly important impact on their home economies when they raise barriers to foreign competition. Recent protectionist efforts by major economic powers, including the United States and the European Union, suggest a new world order—of new import and export barriers, tight technology controls and “friend-shoring” to limit public procurement trade to a closed circle of aligned nations. Will this be the new economic order in public procurement? This article, originally published in Concurrences Review, concurrences.com, argues not. Open international trade in …

Conflicts Of Law And The Abortion War Between The States, Paul S. Berman, Roey Goldstein, Sophie Leff

GW Law Faculty Publications & Other Works

On the subject of abortion, the so-called “United” States of America are becoming more disunited than ever. The U.S. Supreme Court’s precipitous decision in Dobbs v. Jackson Women’s Health Organization overturned the nationwide framework for abortion rights that had uneasily governed the country for fifty years. In the immediate aftermath of that decision, it is becoming increasingly clear that states governed by Republicans and those governed by Democrats are moving quickly and decisively in opposite directions. Since the U.S. Supreme Court agreed to hear the Dobbs case, at least twenty-four states have enacted statutes or state constitutional provisions restricting abortion …

Compensation Under The Microscope: Michigan, Jeffrey Gutman

GW Law Faculty Publications & Other Works

Michigan’s state compensation statute took effect in 2017. It has been in effect long enough to allow pre-statute exonerees to file and resolve state claims. But, the statute is not so old such that prior processes for resolving claims skew the statistics. There was, however, initial uncertainty over the proper statute of limitations by which a claim must be filed in the Michigan Court of Claims. The Court of Claims’ interpretation led to the dismissal of about ten claims. Those were appealed to the Michigan Court of Appeals. Meanwhile, the legislature amended the statute retroactively to impose a more generous …

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 …

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 …

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 …

Modern Merger Law: Dante’S Inferno Revisited, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

In this essay, Professor Pierce compares the transparent and successful operation of the Hart-Scott-Rodino decision-making process when FTC and DOJ act in accordance with the published merger guidelines, with the opaque and confused operation of that decision-making process when FTC and DOJ act in ways that are inconsistent with the guidelines. He predicts that any new guidelines that accurately reflect the policies that DOJ and FTC are actually attempting to further will be immediately enjoined. As long as FTC and DOJ continue to implement the HSR decision-making process in ways that are inconsistent with the guidelines, Professor Pierce urges firms …

International Procurement Developments In 2022: New Perspectives In Global Procurement, Michael Bowsher, Pascal Friton, Paul Lalonde, Andrea Sundstrand, Christopher R. Yukins

GW Law Faculty Publications & Other Works

This piece reviews the past year’s developments in international public procurement in several parts, including: (I) the United Kingdom’s first steps in developing a post-Brexit procurement law (in a part prepared by Michael Bowsher KC, visiting professor at King’s College, London and a barrister at Monckton Chambers); (II) potentially protectionist measures by the European Union (by Pascal Friton, partner at the BLOMSTEIN law firm in Berlin) through the International Procurement Instrument (IPI), the Foreign Subsidies Regulation (FSR), application of the General Data Protection Regulation (GDPR), and measures being taken in response to Russia’s invasion of Ukraine, such as trade sanctions …

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 …