Law Commons^™

Race And The Criminal Law Curriculum, Cynthia Lee

GW Law Faculty Publications & Other Works

This chapter briefly sketches a few places in the substantive criminal law curriculum where law professors can include discussion of race to enrich students’ understanding of the law. These include racially based jury nullification, the void-for-vagueness doctrine, hate crimes and the actus reus requirement, voluntary manslaughter and the defense of provocation, involuntary manslaughter, rape, the doctrine of self-defense, the “Black rage” defense, and the “cultural defense.” The chapter also discusses the Guerilla Guides to Law Teaching project, which suggests that criminal law professors introduce the concept of abolition of the carceral state as a framework through which students can “question …

The Trouble With Harman And Lorandos’S Attempted Refutation Of The Meier Et Al. Family Court Study, Joan S. Meier, Sean Dickson, Chris S. O'Sullivan, Leora N. Rosen

GW Law Faculty Publications & Other Works

Harman and Lorandos assert that they have produced a study analyzing custody cases involving alienation allegations, which “disconfirms” the findings from our study of family court out- comes in cases involving abuse and alienation. In addition to pointing out the authors’ misrepresentation and mis-reporting of some of their findings, this Response details a series of profound flaws in their study’s design, dataset construction and variable coding, interpretations and analytic approach, as well as a series of statistical errors. The statistical analyses demonstrate that Harman and Lorandos’s five findings of a gender bias in favor of fathers are not supported by …

Protecting Free Speech And Due Process Values On Dominant Social Media Platforms, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

In recent years, dominant social media platforms like Facebook and Twitter have been increasingly perceived as engaging in discrimination against conservative and right-wing viewpoints – especially by conservatives themselves. Such concerns were exacerbated by Twitter and Facebook’s deplatforming of then-President Trump in response to the president’s tweets and posts leading up to and during the January 6 th insurrection. Trump’s deplatforming, coupled with the recent actions taken by the platforms in removing Covid- and election-related misinformation, led to cries of censorship by conservative and increased calls for regulation of the platforms. Supreme Court Justice Thomas took up this charge (in …

Comment Letter On Sec Climate Disclosure Proposal By 21 Law And Finance Professors, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

This comment letter, by a group of 21 professors of law and finance, expresses concern that the SEC’s recent proposal to impose extensive mandatory climate-related disclosure rules on public companies (the “Proposal”) exceeds the SEC’s authority. In addition, rather than provide “investor protection,” the Proposal seems to be heavily influenced by a small but powerful cohort of institutional investors, mostly index funds and asset managers, promoting climate consciousness as part of their business models. The analysis raises concerns that the Proposal is neither necessary nor appropriate for either investor protection or the public interest and will not promote other statutory …

The Common Sense Of A Wealth Tax: Thomas Paine & Taxation As Freedom From Aristocracy, Jeremy Bearer-Friend, Vanessa Williamson

GW Law Faculty Publications & Other Works

Thomas Paine’s writing helped spur the American colonies to independence and ensure that the new nation would be a republic, not a monarchy. In light of the renewed interest in wealth taxes, this article provides a close examination of Thomas Paine’s wealth tax proposal in the second volume of The Rights of Man. Unlike Paine’s proposal to tax inheritances, his 1792 proposal to tax wealth on an annual basis is often overlooked. The article identifies Paine’s various design specifications, provides original estimates of the impact of Paine’s wealth tax proposal within his own time period and as applied to billionaires …

The New Separation Of Powers Formalism And Administrative Adjudication, Robert L. Glicksman, Richard E. Levy

GW Law Faculty Publications & Other Works

The Supreme Court has entered a new era of separation of powers formalism. Others have addressed many of the potentially profound consequences of this return to formalism for administrative law. This paper focuses on an aspect of the new formalism that has received little attention—its implications for the constitutionality of administrative adjudication. The Court has not engaged in an extensive discussion or reformulation of its separation of powers jurisprudence concerning administrative adjudication since its highly functionalist decision in Commodity Futures Trading Commission v. Schor more than three decades ago, but recent opinions of individual Justices show signs that such a …

An Overview Of Privacy Law In 2022, Daniel J. Solove, Paul M. Schwartz

GW Law Faculty Publications & Other Works

Chapter 1 of PRIVACY LAW FUNDAMENTALS (6th edition, IAPP 2022) provides an overview of information privacy law circa 2022. The chapter summarizes the common themes in privacy laws and discusses the various types of laws (federal, constitutional, state, international). It contains a list and brief summary of the most significant U.S. federal privacy laws. The heart of the chapter is an historical timeline of major developments in the law of privacy and data security, including key cases, enactments of laws, major regulatory developments, influential publications, and other significant events. The chapter also contains a curated list of important treatises and …

Breached! Why Data Security Law Fails And How To Improve It (Chapter 1), Daniel J. Solove, Woodrow Hartzog

GW Law Faculty Publications & Other Works

Digital connections permeate our lives—and so do data breaches. Given that we must be online for basic communication, finance, healthcare, and more, it is remarkable how difficult it is to secure our personal information. Despite the passage of many data security laws, data breaches are increasing at a record pace. In their book, BREACHED! WHY DATA SECURITY LAW FAILS AND HOW TO IMPROVE IT (Oxford University Press 2022), Professors Daniel Solove and Woodrow Hartzog argue that the law fails because, ironically, it focuses too much on the breach itself.

Drawing insights from many fascinating stories about data breaches, Solove and …

Democracy And Demography, Paul S. Berman, Neal S. Mehrotra, Kathryn S. Sadasivan

GW Law Faculty Publications & Other Works

American democracy is under siege. This is so because of the confluence of three trends: (1) demographic change and residential segregation, which increasingly have placed more racially diverse Democratic Party voters in cities and suburbs, while rural areas have become more white and Republican; (2) a constitutional structure—particularly the Electoral College, the composition of the Senate, and the use of small, winner-take-all legislative districts—that gives disproportionate representation to rural populations; and (3) the willingness of this rural Republican minority to use its disproportionate power to further entrench counter-majoritarian structures, whether through extreme partisan gerrymandering, increased voter suppression efforts, court-packing, or …

The Remedies For Constitutional Flaws Have Major Flaws, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

In this essay, Professor Pierce describes the many ways in which the conservative majority of the Supreme Court has attempted to use its unique approach to interpretation of the constitution to restructure the government and to reallocate power among the branches of government. He then describes the problems that the Court has encountered in its efforts to choose remedies for the constitutional flaws that it detects.

Increasingly, the Court must choose between remedies that are ineffective and remedies that make it impossible for the government to function. Pierce predicts that the problems that the Court has experienced to date will …

Creativity In Dispute Settlement Relating To The Law Of The Sea, Sean D. Murphy

GW Law Faculty Publications & Other Works

This chapter, written in honor of David Caron, focuses on creativity in dispute resolution relating to the law of the sea. When the 1982 U.N. Convention on the Law of the Sea (UNCLOS) was adopted in 1982, its dispute settlement procedures were heralded as highly creative in offering an array of possibilities for States (and even non-State actors). Now that almost three decades have passed since the Convention’s entry into force in 1994, can it be said that the promise of such creativity has been fulfilled? It appears that the answer to that question is largely yes, not just in …

Using Ai To Reduce Performance Risk In U.S. Procurement, Jessica Tillipman

GW Law Faculty Publications & Other Works

In recent years, several U.S. government agencies have pioneered the use of artificial intelligence (AI) and other emerging technologies to improve the efficiency and accuracy of their "responsibility determinations" (reviews of, among other things, contractor representations and certifications, past performance history, civil and criminal settlements, exclusions (such as suspensions or debarments), and contract terminations). As federal agencies continue to think strategically about how to improve processes and reduce risk in their procurements, technology-driven solutions will play a critical role in this undertaking.

Patents And Competition: Commercializing Innovation In The Global Ecosystem For 5g And The Internet Of Things, Thomas D. Grant, F. Scott Kieff

GW Law Faculty Publications & Other Works

Times are changing as our global ecosystem for commercializing innovation helps bring new technologies to market, networks grow, interconnections and transactions become more complex around standards and otherwise, all to enable vast opportunities to improve the human condition, to further competition, and to improve broad access. The policies that governments use to structure their legal systems for intellectual property, especially patents, as well as for competition—or antitrust—continue to have myriad powerful impacts and raise intense debates over challenging questions. This Chapter explores a representative set of debates about policy approaches to patents, to elucidate particular ideas to bear in mind …

Comment Letter To The U.S. Treasury Department Regarding The Risks Of Stablecoins, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

This letter responds to the U.S. Treasury Department’s request for public comments on President Biden’s Executive Order No. 14067, “Ensuring Responsible Development of Digital Assets” (Mar. 9, 2022). This letter contends that (1) digital stablecoins currently pose significant risks to U.S. financial markets and investors, (2) stablecoins will create great dangers for our financial system, economy, and society if they become a widely-accepted form of payment for consumer and commercial transactions, and (3) allowing Big Tech firms and other commercial enterprises to issue and distribute stablecoins would seriously undermine our nation’s longstanding policy of separating banking and commerce.

In view …

The Democratic (Il)Legitimacy Of Assembly-Line Litigation, Jessica Steinberg, Colleen F. Shanahan, Anna E. Carpenter, Alyx Mark

GW Law Faculty Publications & Other Works

In response to Daniel Wilf-Townsend’s Assembly-Line Plaintiffs we take a panoramic picture of state civil courts, and debt cases in particular, and name specific features of the courts that must be taken into account in crafting reform prescriptions. In doing so, we question both the democratic legitimacy of debt collection courts and the adequacy of incremental reform that targets the structure of litigation. Part I contributes two critical components to Wilf-Townsend’s rich description of consumer debt cases: pervasive intersectional inequality among pro se defendants and a record of fraud among top filers. We add a sharper focus on the racial, …

Overcoming Corruption And War -- Lessons From Ukraine's Prozorro Procurement System, Christopher R. Yukins, Steven Kelman

GW Law Faculty Publications & Other Works

After the 2014 uprising against widespread corruption under former Ukrainian President Victor Yanukovych, a group of civic activists and data experts decided to overhaul government procurement. Their efforts produced an open-source e-procurement system, ProZorro (“transparency” in Ukrainian), and a community of citizens and government buyers, Dozorro (“watchdog” in Ukrainian), that analyzes contracting data, flags high-risk deals and irregularities, and reports them to government authorities. Created with the help of the European Bank for Reconstruction and Development and the U.S. Agency for International Development, ProZorro has helped Ukraine save almost $6 billion in public funds since October 2017, according to the …

The Sec's Misguided Climate Disclosure Rule Proposal, Lawrence A. Cunningham, Stephen M. Stephen M. Bainbridge, Jonathan Berk, Sanjai Bhagat, Bernard S. Black, William J. Carney, David J. Denis, Diane K. Denis, Charles M. Elson, Jesse M. Fried, Sean J. Griffith, Jonathan M. Karpoff, F. Scott Kieff, Edmund W. Kitch, Katherine Litvak, Julia D. Mahoney, Paul G. Mahoney, Adam C. Pritchard, Dale A. Oesterle, Roberta Romano, Todd J. Zywicki, Christina P. Skinner

GW Law Faculty Publications & Other Works

The following article adapts and consolidates two comment letters submitted last spring by a group of twenty-two professors of finance and law on the SEC’s proposed climate change disclosure rules. The professors reiterate their recommendation that the SEC withdraw its proposal as legally misguided, while outlining some of the issues that the proposal will face when challenged in court.

Compensation Under The Microscope: Florida, Jeffrey Gutman

GW Law Faculty Publications & Other Works

Of the states with more than ten exonerees and with long-standing wrongful compensation statutes, Florida has the second-lowest percentage of exonerees who apply for compensation after Missouri. This edition of “Compensation Under the Microscope” explores some explanations for the low rate of filing and, thus, the low level of compensation awarded in Florida.

The Institutional Mismatch Of State Civil Courts, Colleen F. Shanahan, Jessica Steinberg, Alyx Mark, Anna E. Carpenter

GW Law Faculty Publications & Other Works

State civil courts are central institutions in American democracy. Though designed for dispute resolution, these courts function as emergency rooms for social needs in the face of the failure of the legislative and executive branches to disrupt or mitigate inequality. We reconsider national case data to analyze the presence of social needs in state civil cases. We then use original data from courtroom observation and interviews to theorize how state civil courts grapple with the mismatch between the social needs people bring to these courts and their institutional design. This institutional mismatch leads to two roles of state civil courts …

Compensation Under The Microscope: Washington, Jeffrey Gutman

GW Law Faculty Publications & Other Works

This edition of “Compensation Under the Microscope” explores: What Does Washington Do About Dual-Eligibles?

Shareholder Wealth Maximization: Variations On A Theme, Dalia Tsuk Mitchell

GW Law Faculty Publications & Other Works

In the debate over whether a corporation’s primary purpose is to make money for shareholders or protect the interests of all stakeholders, including employees and customers, some argue that corporate law requires directors and corporations to serve primarily shareholder economic interests. This paper's review of the history of corporate law suggests otherwise. Analysis of the cases reveals that judges did not sanction “shareholder wealth maximization,” but used that rhetoric to legitimate management’s dominion. Early in the twentieth century, amidst the rise of the publicly held corporation, insisting that corporations maximize profit for their shareholders was a means of protecting minority …

Academic Brands And Online Education, Paul S. Berman

GW Law Faculty Publications & Other Works

Online education both does and does not radically transform higher education and higher education brands. On the one hand, providing courses online potentially allows universities to reach a worldwide audience, helps them globalize their brand, changes the cost structure for both students and institutions, and could reshape the competitive branding landscape among universities. On the other hand, university brands are surprisingly regional, low student–faculty ratios are still necessary for truly high-quality education, and the online competitive landscape might ultimately simply replicate reputational hierarchies forged over decades in the world of on-campus education. Thus, although the idea that online learning will …

Compensation Under The Microscope: Wisconsin, Jeffrey Gutman, National Registry Of Exonerations

GW Law Faculty Publications & Other Works

Wisconsin has one of the nation’s oldest wrongful conviction compensation statutes, dating to 1913. It also rivals New Hampshire for offering exonerees with the least compensation. The Wisconsin Claims Board can award eligible exonerees no more than $25,000 in total at a rate of no more than $5,000 per year incarcerated. Within the Wisconsin statute lies a small and seldom-used door to more appropriate awards. The Wisconsin Court of Appeals in June, 2022 issued a divided opinion that may crack that door open just a bit wider. For states with particularly ungenerous statutes, but without the desire to change them, …

Harman And Lorandos’ False Critique Of Meier Et Al.’S Family Court Study, Joan S. Meier, Sean Dickson, Chris S. O'Sullivan, Leora N. Rosen

GW Law Faculty Publications & Other Works

Jennifer Harman and Demosthenes Lorandos purport to have identified numerous methodological flaws in our 2019 study of family court outcomes in cases involving abuse and alienation allegations (“FCO study”; Meier et al., 2019). At least half of the supposed flaws they itemized relate to one claim - that they were unable to access our methods and data. They treat the claimed lack of public access as evidence that our study is unreliable, while speculating about other potential flaws. Yet we note - and they acknowledge - that most of the methodological information they sought was in fact available before publication …

How Should The Court Respond To The Combination Of Political Polarity, Legislative Impotence, And Executive Branch Overreach?, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

In this essay, Professor Pierce discusses two related problems that the Supreme Court must address—the large increase in nationwide preliminary injunctions issued by district judges to prohibit the executive branch from implementing major federal actions and the large increase in the number of cases in which the Supreme Court either stays or refuses to stay preliminary injunctions without providing an adequate explanation for its action. He begins by describing the sources of the two problems and the many ways in which they threaten our system of justice. He then urges the Court to issue an opinion in which it provides …

Gordon College And The Future Of The Ministerial Exception, Peter J. Smith, Robert W. Tuttle

GW Law Faculty Publications & Other Works

In Gordon College v. DeWeese-Boyd, a social work professor at a religious college sued after she was denied promotion. The college asserted the “ministerial exception,” a judicially crafted and constitutionally grounded exception to the ordinary rules of liability arising out of the employment relationship between religious institutions and their ministers. Although the plaintiff had no distinctively religious duties, the college expected her (and all other faculty) to integrate the faith into her teaching and scholarship. The Massachusetts Supreme Judicial Court (SJC) held that this obligation, standing alone, was insufficient to qualify the plaintiff as a minister within the meaning of …

Taking Stock Of The “Compatibility Requirement”: What Limitations Does It Impose For High Seas Fishing?, Sean D. Murphy

GW Law Faculty Publications & Other Works

Under the contemporary law of the sea, coastal States enjoy sovereign rights within their exclusive economic zones (EEZs) to manage and exploit fishery resources. At the same time, States maintain the traditional freedom to fish on the high seas subject to some treaty obligations, including those arising from regional management fisheries organizations (RMFOs) and other treaties, such as (once it enters into force) the agreement on the conservation and sustainable use of marine biological diversity in areas beyond national jurisdiction (BBNJ agreement). Given that straddling stocks and highly migratory species of fish move with ease between EEZs and the high …

Strange Bedfellows? Representative Democracy And Academic Engagement With The Defense Industry, Steven L. Schooner, Evan Matsuda

GW Law Faculty Publications & Other Works

This chapter concludes a book that grew out of 2015 a conference hosted by the University of Pennsylvania's Center for Ethics and the Rule of Law, which brought together defense industry leaders, academics, and lawyers to discuss ethical challenges to the defense industry. Authors from the academy, practitioners, and policy-makers offer perspectives and insights such that the collection spans a broad range of disciplines, from philosophy, economics, law, and political science, to the management of corporate compliance.

In addition to attempting (no doubt unsuccessfully) to tie many of the book's themes together, the chapter itself asserts that the academic community …

Canada's Integrity Regime: The Corporate Grim Reaper, Jessica Tillipman, Samantha Block

GW Law Faculty Publications & Other Works

In 2019, SNC-Lavalin made global headlines after it was revealed that the Canadian Prime Minister, Justin Trudeau, had interfered in the prosecution of the company for the bribery of Libyan officials. Although the scandal was primarily viewed as political, it also highlighted flaws in Canada’s Integrity Regime; specifically, the regime’s unworkable and draconian approach to debarment. This Article will address the pressing need in Canada to modify its debarment remedy and enact a system that more effectively protects the government’s interests. To illuminate the current issues facing Canada’s Integrity Regime, this Article will begin by examining Canada’s debarment system, outlining …

China’S Sanctions And Rule Of Law: How To Respond When China Targets Lawyers, F. Scott Kieff, Thomas D. Grant

GW Law Faculty Publications & Other Works

The People’s Republic of China (PRC) has begun to use sanctions against people who speak out against its policies, including even lawyers in their ordinary work representing the interests of their clients. This paper explores the deleterious impact such sanctions can have on the entire legal profession, the broader community putatively served by the profession, and the rule of law.