Law Commons^™

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.

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 …

Rights Violations As Punishment, Kate Weisburd

GW Law Faculty Publications & Other Works

Is punishment generally exempt from the Constitution? That is, can the deprivation of basic constitutional rights—such as the rights to marry, bear children, worship, consult a lawyer, and protest—be imposed as direct punishment for a crime and in lieu of prison, so long as such intrusions are not “cruel and unusual” under the Eighth Amendment? On one hand, such state intrusion on fundamental rights would seem unconstitutional. On the other hand, such intrusions are often less harsh than the restriction of rights inherent in prison. If a judge can sentence someone to life in prison, how can a judge not …

A New Acquisition Model For The Next Disaster: Overcoming Disaster Federalism Issues Through Effective Utilization Of The Strategic National Stockpile, Robert B. Handfield, Andrea S. Potrucco, Zhaohui Wu, Christopher R. Yukins, Tanner Slaughter

GW Law Faculty Publications & Other Works

Using primary data collected from interviews with federal and state government officials and secondary data related to PPE distribution and state healthcare statistics, we discovered evidence that the use of the Strategic National Stockpile (SNS) to distribute personal protective equipment to state and local agencies in need during the height of COVID-19 was indeed poorly designed to cope with the COVID-19 emergency, leaving many states with shortages of badly needed medical supplies. As a result, many states struggled to organize an uncoordinated procurement response – which we suggest is due to federalism issues. To overcome federalism challenges and increase future …

How Did Qing Magistrates Decide Cases? Philip Huang Vs. Shiga Shūzō, Donald C. Clarke

GW Law Faculty Publications & Other Works

Shiga Shūzō argued in 1981 that in cases where serious criminal punishment was not contemplated, Qing magistrates adjudicated not according to the Qing code or other legal sources, but instead according to their own sense of what was right and appropriate. Against this, Philip Huang argued in 1996 that the vast majority of cases were adjudicated unequivocally according to the Qing code. But Huang fails to disprove Shiga’s claim. First, by his own admission, he is constructing through his own inferences the rules of the Qing code that he says the magistrates were applying; they do not in fact appear …

Major Questions About Agency Authority: A Practical Discussion On The Impact Of Limiting Administrative Authority, Aram Gavoor

GW Law Faculty Publications & Other Works

The Administrative Law Review’s Fall 2022 Symposium humanized administrative law while tackling substantive administrative law issues. With the human impact of administrative law as the touchpoint, the panels explored the practical implications of deregulation, nondelegation, and major questions. Resultant discussion transcribed below allowed for a thoughtful conversation, but one that was at the same time accessible to those who do not routinely practice in the space. We thank Professors Gillian Metzger, William Buzbee, Aram Gavoor, Kimberly Wehle, Jonas Monast, and Administrative Law Judge Doug Rawald for their contributions.

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 …

This Is Not Your Grandparents’ Military Justice System: The 2022 And 2023 National Defense Authorization Acts, David A. Schlueter, Lisa M. Schenck

GW Law Faculty Publications & Other Works

For the past decade there have been numerous and significant changes to the Uniform Code of Military Justice (UCMJ), the statutory basis for the military justice system. Although the Military Justice Act of 2016 made major changes to the UCMJ, the calls for change continued. One of the most-often heard calls for reform over the last decade has suggested removing commanders from the military justice system. In the 2022 National Defense Authorization Act, Congress amended the UCMJ to dramatically reduce the commander’s role in what Congress specified as “covered offenses" such as sexual assault and provided that those listed offenses …

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 …

Proceduralism: Delaware’S Legacy, Dalia Tsuk Mitchell

GW Law Faculty Publications & Other Works

This article examines the Delaware courts’ 1980s shift from managerialism to a theory I label proceduralism. I argue that managerialism, which justified corporate law’s deference to directors in the preceding fifty years, was corporate law’s response to social, political, and cultural concerns outside corporations. At the turn of the twentieth century, corporations and their managers were empowered to fight socialism by protecting the interests of workers, while in the midcentury, corporations became the first line of defense against the threats of totalitarianism and later the Cold War. Corporate directors were viewed as heroes and their power justified as necessary for …

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 …

Can Ai Standards Have Politics?, Alicia Solow-Niederman

GW Law Faculty Publications & Other Works

How to govern a technology like artificial intelligence (AI)? When it comes to designing and deploying fair, ethical, and safe AI systems, standards are a tempting answer. By establishing the best way of doing something, standards might seem to provide plug-and-play guardrails for AI systems that avoid the costs of formal legal intervention. AI standards are all the more tantalizing because they seem to provide a neutral, objective way to proceed in a normatively contested space. But this vision of AI standards blinks a practical reality. Standards do not appear out of thin air. They are constructed. This Essay analyzes …

He Who Dares Not Offend Cannot Be Honest: United Nations Human Rights Committee Jurisprudence And Defamation Laws Under The Iccpr, Helen Jasper, Keegan James, Marco Guzman, Arturo J. Carrillo

GW Law Faculty Publications & Other Works

This paper focuses on United Nations Human Rights Committee jurisprudence addressing the legality of defamation laws under the International Covenant on Civil and Political Rights (“ICCPR”). It first presents an overview of the treaty’s framework for interpreting Article 19, which protects the right to freedom of opinion and expression, and identifies recognized restrictions of Article 19, including by means of defamation laws. The paper then analyzes the Committee's relevant jurisprudence to determine how Article 19’s normative framework has been interpreted and applied in practice. In particular, it focuses on the application of Article 19(3)’s balancing test for resolving conflicts of …

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 …

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 …

Compensation Under The Microscope: Virginia, Jeffrey Gutman

GW Law Faculty Publications & Other Works

Enacted in 2004, the Virginia wrongful conviction compensation statute is unique in the United States. The decision to award compensation rests not with a court or an administrative agency, but with the state legislature. Unlike other compensation statutes that create an entitlement to compensation when a person is found eligible, the Virginia statute explicitly says that “[t]he payment and receipt of any compensation for wrongful incarceration shall be contingent upon the General Assembly appropriating funds for that purpose. This article shall not 2 provide an entitlement to compensation for persons wrongfully incarcerated or require the General Assembly to appropriate funds …

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 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 …

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.

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 …

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 …

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., …

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 …

Deploying The Wto Agreement On Government Procurement (Gpa) To Enhance Sustainability And Accelerate Climate Change Mitigation, Robert D. Anderson, Antonella Salgueiro, Steven L. Schooner, Marc Steiner

GW Law Faculty Publications & Other Works

Mitigating climate change and promoting sustainability are defining challenges of our time. Public procurement has a vital role to play in responding to the current crises. This article makes the case that the World Trade Organization’s (WTO) Agreement on Government Procurement (GPA), and specifically the Work Programme on Sustainable Procurement that has been initiated pursuant to the Agreement, can serve as important instruments to promote sustainable approaches to public procurement internationally, consistent with the goals of climate change mitigation.

The Work Programme, which was established at the time of the GPA’s modernization in 2012 and on which important work has …

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 …

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 …

The Heritage Of The Articles On State Responsibility For The International Law Commission, Sean D. Murphy

GW Law Faculty Publications & Other Works

In the two decades since their adoption in 2001, the International Law Commission (ILC)’s Articles on the Responsibility of States for Internationally Wrongful Acts (ASR) have had an extraordinary influence, not just on the field of international law generally, but also on the work of the ILC itself. Indeed, the ILC concluded four projects that directly resulted from or were closely related to the ASR in the first decade after its adoption. Moreover, references to the ASR have worked their way into most (albeit not all) of the ILC topics completed since 2001.

Yet those express references tell just part …

Book Review Of Donald R. Rothwell, Islands And International Law (Oxford: Hart Publishing, 2022), Sean D. Murphy

GW Law Faculty Publications & Other Works

In recent years, international rules concerning islands have increasingly featured as a part of inter-State relations, whether with respect to Chinese activities in the South China Sea, the decolonization of the Chagos Archipelago in the India Ocean, the effects of tiny features on delimitation in the Black Sea or the Bay of Bengal, or the plight of low-lying Pacific nations in the face of sea-level rise. A single article (Article 121) amongst the 320 articles that comprise the 1982 U.N. Convention on the Law of the Sea Convention (LOSC) is dedicated to the “regime of islands,” providing some important guidance, …

Litigation To Protect The Marine Environment: Parallels And Synergies With Climate Litigation, Randall S. Abate, Nadine O. Nadow, Hayley-Bo Dorrian-Bak

GW Law Faculty Publications & Other Works

This paper reviews recent successes and obstacles in using litigation as a tool to address issues in several contexts in the marine environment. It surveys developments at the international, national, and sub-national levels and offers lessons from creative climate litigation strategies as a way to enhance litigation to protect the marine environment. It also recommends ways in which the ocean-climate nexus can provide mutual benefits in advancing the agendas of climate change regulation and ocean stewardship.

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 …