Law Commons^™

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: …

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 …

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 …

Medicare For All, Health Justice, And The Laboratories Of Democracy, Elenore Wade

GW Law Faculty Publications & Other Works

A growing majority of Americans support the implementation of a national single-payer healthcare program, also known as Medicare for All, which would shift payments for healthcare services to a single public payer and provide care based on need rather than ability to pay. However, legislators, scholars, and advocates have suggested state governments rather than the federal government should take the lead by implementing state-based single-payer programs. Dozens of single-payer proposals have been introduced in state legislatures across the country, and proposed legislation in Congress would remove the federal roadblocks to state-based single-payer’s implementation. Proponents of state-based single-payer rely on the …

The Clean Power Plan: Issues To Watch, Robert L. Glicksman, Emily Hammond, Alice Kaswan, William Buzbzee, Kirsten H. Engel, David M. Driesen, Victor Byers Flatt, Alexandra B. Klass, Thomas Owen Mcgarity, Melissa Powers, Joseph P. Tomain

GW Law Faculty Publications & Other Works

Although the Clean Air Act is an imperfect tool for addressing the nation’s greenhouse gas emissions, it is the only available federal mechanism for directly addressing power plant carbon emissions. The Obama Administration’s Clean Power Plan, published in final form in August 2015, tackles the challenge. This paper from the Center for Progressive Reform (CPR) compiles 13 separately authored essays from 11 CPR Member Scholars, each addressing a different topic related to the Clean Power Plan, and each representing the expertise and views of its individual author(s). Published in July 2015, just before the release of the final rule, the …

Brief Of Amicus Curiae Professor W. Burlette Carter In Support Of Neither Party: Obergefell V. Hodges; Deboer V. Snyder; Tango V. Haslam; Bourke V. Beshear, W. Burlette Carter

GW Law Faculty Publications & Other Works

Comparisons to bans on interracial marriage and bans on same-sex marriage are not neat comparisons. Loving was procreation-related. Before Loving, bans on slaves marrying and nonrecognition of interracial relationships in slavery were all procreation-related. Identifiability is no benefit for blacks but was and is a means for targeting blacks for racial oppression.

Historically, it is indisputable that marriage was heterosexual under the common law. The founders knew about same sex marriages, but considered them not to be legal. When such relationships were respected, they were treated as private contracts between consenting adults. Sometimes, however, even with consent, they were …

General Law In Federal Court, Bradford R. Clark, Anthony J. Bellia Jr.

GW Law Faculty Publications & Other Works

Conventional wisdom maintains that the Supreme Court banished general law from federal courts in 1938 in Erie Railroad Co. v. Tompkins when the Court overruled Swift v. Tyson. The narrative asserts that Swift viewed the common law as a “brooding omnipresence,” and authorized federal courts to disregard state common law in favor of general common law of their own choosing. The narrative continues that Erie constrained such judicial lawmaking by banishing general law from federal courts. Contrary to this account, Swift and Erie represent compatible conceptions of federal judicial power when each decision is understood in historical context. At the …

The 'Federal Law Of Marriage': Deference, Deviation, And Doma, W. Burlette Carter

GW Law Faculty Publications & Other Works

The article discusses the history of federal inroads into marriage by examining federal interventions during the nineteenth and early twentieth century, argues that, in some cases but not all, marriages' federal benefits are indeed intended to support natural procreation, argues that DOMA's underlying statutes are key to ascertaining the purposes of federal marriage benefits and burdens, distinguishes sexual orientation discrimination from race discrimination and offers a proposal for dealing with equal protection challenges to denials of marriage rights to same sex couples. The proposal, which depends upon dual standards of review, recognizes the historical denial of family rights to same …

Rhetoric Versus Reality In Arbitration Jurisprudence: How The Supreme Court Flaunts And Flunks Contracts (And Why Contracts Teachers Need Not Teach The Cases), Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

Supreme Court rhetoric about the role of contracts and contract law in arbitration jurisprudence differs sharply from the reality of its applications. In the name of contracts, the Court administers a self-declared national policy favoring arbitration, a policy directly benefiting the judicial branch of government. This often puts the Court’s preferences ahead of those of contracting parties while declaring its mission as solely to enforce contracts in accordance with contract law. The Court thus cloaks in the rhetoric of volition a policy in tension with constitutionally-pedigreed access to justice and venerable principles of federalism.

This Article documents the rhetoric-reality gap …

Climate Change Adaptation: A Collective Action Perspective On Federalism Considerations, Robert L. Glicksman, Richard E. Levy

GW Law Faculty Publications & Other Works

The buildup of greenhouse gases in the atmosphere and the likely growth in future emissions due to increased energy consumption in developing nations have convinced many scientists and policymakers of the need to develop policies that will allow adaptation to minimize the adverse effects of climate change. Climate change adaptation is designed to increase the resilience of natural and human ecosystems to the threats posed by a changing environment. Although an extensive literature concerning the federalism implications of climate change mitigation policy has developed, less has been written about the federalism issues arising from climate change adaptation policy. This article …

The Federal Common Law Of Nations, Bradford R. Clark

GW Law Faculty Publications & Other Works

Courts and scholars have vigorously debated the proper role of customary international law in American courts: To what extent should it be considered federal common law, state law, or general law? The debate has reached something of an impasse, in part because various positions rely on, but also are in tension with, historical practice and constitutional structure. This Article describes the role that the law of nations actually has played throughout American history. In keeping with the original constitutional design, federal courts for much of that history enforced certain rules respecting other nations' "perfect rights" (or close analogues) under the …

Process-Based Preemption, Bradford R. Clark

GW Law Faculty Publications & Other Works

The question of preemption arises because the Constitution establishes a federal system with two governments (one federal and one state) that have overlapping power to regulate the same matters involving the same parties in the same territory. To succeed, such a system requires a means of deciding when federal law displaces state law. The Founders chose the Supremacy Clause (reinforced by Article III) to perform this function. Although seemingly one-sided, the Clause actually incorporates several important political and procedural safeguards designed to preserve the proper balance between the governance prerogatives of the federal government and the states. It does this …

Access To Courts And Preemption Of State Remedies In Collective Action Perspective, Robert L. Glicksman, Ricard Levy

GW Law Faculty Publications & Other Works

Preemption of common law remedies for individual injuries such as harm to health raises fundamental questions about the proper allocation of authority between the federal and state governments and about the role of courts in interpreting statutes and providing remedies for those who suffer injuries. Developing a workable framework for analyzing what we call “remedial preemption” issues can help to ensure an appropriate accommodation of the federal and state interests at stake and promote consistent application of preemption doctrine to state judicial remedies. This article applies a “collective action” framework for preemption analysis to the issue of remedial preemption. Our …

Federalism And International Law Through The Lens Of Legal Pluralism, Paul Schiff Berman

GW Law Faculty Publications & Other Works

Sovereignty has long been the dominant lens through which we view both federalism and international law. From the perspective of sovereignty, both federalism and international law are primarily about drawing clear boundaries and demarcations between separate, autonomous power centers. Recently, however, a group of scholars have embraced a more pluralist approach to both American federalism and international law. They have touted the important virtues of jurisdictional redundancy and inter-systemic governance models in which multiple legal and regulatory authorities weigh in regarding the same acts and actors. And they argue that such jurisdictional redundancies are not just a necessary accommodation to …

Federalism And Faith, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

Should the U.S. constitution afford greater discretion to states than to the federal government in matters affecting religion? In recent years, a number of commentators have been asserting that the Establishment Clause should not apply to the states. Justice Thomas has embraced this view, while offering his own refinements to it. Moreover, the Supreme Court's decision in Locke v. Davey (2004) ruled that a state did not run afoul of the Free Exercise Clause when it refused to subsidize religious studies, in a context in which the Establishment Clause would have permitted the subsidy.

This paper offers a focused (re)consideration …

From Cooperative To Inoperative Federalism: The Perverse Mutation Of Environmental Law And Policy, Robert L. Glicksman

GW Law Faculty Publications & Other Works

Beginning in 1970, Congress adopted a series of statutes to protect public health and the environment that represented an experiment in cooperative federalism. The operative principle of cooperative federalism is that the federal government establishes a policy - such as protection of public health and the environment and sustainable natural resource use - and then enlists the aid of the states, through a combination of carrots and sticks, in pursuing that policy. The result is a system in which both levels of government work together to achieve a common goal. If the process works well, the synergism of related federal …

Federalism, Instrumentalism, And The Legacy Of The Rehnquist Court, Peter J. Smith

GW Law Faculty Publications & Other Works

This paper starts from the proposition that although the Rehnquist Court imposed limits on federal power in the name of states' rights far more aggressively than did its post-1937 predecessors, it just as often chose not to impose limits in cases that otherwise fairly can be thought to have presented a question of federalism. The article then makes three claims. First, the article argues that any ultimately satisfying account of the Rehnquist Court's federalism doctrine must acknowledge that the decisions have often appeared to be driven as much by the Justices' policy preferences about the underlying substantive matters at issue …

The Federal Marriage Amendment: To Protect The Sanctity Of Marriage Or Destroy Constitutional Democracy?, Joan Schaffner

GW Law Faculty Publications & Other Works

For the several years, primarily as a political ploy, the President and Republican Congress, proposed an amendment to the US Constitution to prohibit marriage between people of the same sex - the Federal Marriage Amendment. This article analyzed this proposed amendment in light of the constitutional principles that govern our society, individual rights, federalism, separation of powers, and judicial review. The article concludes that the FMA is itself constitutionally suspect and is more destructive, on balance, of the basic democratic constitutional principles than any amendment previously adopted or proposed. The amendment violates every tenet of constitutional democracy by: (1) expressly …

Sarbanes-Oxley, Corporate Federalism, And The Declining Significance Of Federal Reforms On State Director Independence Standards, Lisa M. Fairfax

GW Law Faculty Publications & Other Works

Commentators have argued that the Sarbanes-Oxley Act of 2002 ("Sarbanes-Oxley" or the "Act") raises federalism concerns because it regulates the internal affairs of a corporation, including the composition of, and qualifications for, corporate boards, in a manner traditionally reserved to states. This Article responds to those claims, arguing that the Act reflects a relatively minimal intrusion into state law, particularly with regard to issues of director independence. This Article further argues that the Act's failure to disturb state law on these issues may impede its ability to tighten director independence standards and by extension may undermine its ability to improve …

Unitary Judicial Review, Bradford R. Clark

GW Law Faculty Publications & Other Works

Two hundred years have passed since the Supreme Court's decision in Marbury v. Madison, yet debate continues over the origins and legitimacy of judicial review. Although modern commentators generally accept judicial review with little or no reservation, some remain skeptical. One of the strongest and most sustained challenges comes from Larry Kramer, who has recently argued that the Founders did not authorize judicial review of the scope of federal powers under the original Constitution. At the same time, Kramer maintains that the Founders expected judicial review both to prevent states from undermining federal supremacy and to enforce individual rights. Such …

Sources Of Federalism: An Empirical Analysis Of The Court's Quest For Original Meaning, Peter J. Smith

GW Law Faculty Publications & Other Works

Although a debate continues to rage in the academy and on the Court about the propriety of originalism as a methodology of constitutional interpretation, in federalism cases both the majority and the dissent on the current Court appear to have embraced the approach. Yet their agreement ends there; the Court has consistently divided 5-4 in federalism cases. What explains the disagreement among Justices who appear to agree that the original understanding of the Constitution is also its current meaning? This article presents the results of a study of citation patterns in federalism cases since 1970. The study demonstrates that the …

The Constitutional Structure And The Jurisprudence Of Justice Scalia, Bradford R. Clark

GW Law Faculty Publications & Other Works

Commentators generally regard federalism and separation of powers as distinct features of the constitutional structure. In reality, these doctrines were designed to work together to further the same goals: to avoid tyranny and to preserve individual liberty. Professor Thomas Merrill overlooks this connection in a recent attempt to explain the Supreme Court's decision making process under Chief Justice William Rehnquist. Professor Merrill maintains that there have been two Rehnquist Courts: one from 1986 to 1994, and another from 1994 to the present. In Professor Merrill's view, the first Rehnquist Court focused on social issues - such as abortion, affirmative action, …

The Supremacy Clause As A Constraint On Federal Power, Bradford R. Clark

GW Law Faculty Publications & Other Works

Today, it is widely accepted that the Constitution authorizes courts to review and invalidate state laws that conflict with federal statutes. At the same time, prominent commentators and even some judges maintain that courts should not seriously review the constitutionality of federal statutes alleged to exceed the scope of Congress' enumerated powers. In their view, the constitutional structure protects the states (and thereby reduces the need for judicial review of federal power), but establishes no comparable safeguards to deter states from interfering with federal prerogatives. Contrary to this position, there is an express textual basis for judicial review of federal …

States As Nations: Dignity In Cross-Doctrinal Perspective, Peter J. Smith

GW Law Faculty Publications & Other Works

In a series of recent decisions, the Supreme Court has asserted that the states' sovereign immunity from suit serves principally to protect the "dignity" of the states. This seemingly oxymoronic notion has perplexed and amused commentators, who have tended to dismiss it largely as rhetorical flourish without substantive content. Although the concept of state dignity is at best an unusual anchor for a doctrine that already has been roundly criticized as unfaithful to constitutional history, text, and structure, the notion of state dignity is not foreign to the law. This article argues that in relying on state dignity, the Court's …

The Undersea World Of Foreign Relations Federalism, Edward T. Swaine

GW Law Faculty Publications & Other Works

Uncertainty surrounds the field of foreign relations federalism. The Supreme Court has left lower courts to decide significant issues with little guidance, the Constitution provides little direct instruction, and the tension between national and state authority creates policy arguments on both sides based on uncertain conceptions on injury to these interests. Scholars should seize the opportunity to explore new functions and values for states in today’s globalized world.

Dispelling The Misconceptions Raised By The Davis Dissent, Joan E. Schaffner

GW Law Faculty Publications & Other Works

This article argues that the Supreme Court’s majority opinion in Davis v. Monroe County Board of Education did not do enough to explicitly assuage the dissenters’ concerns and aims to do so itself. Davis permitted liability for school districts that purposely ignore instances of student-on-student sexual harassment that deprived a student of the opportunity for education. The three issues raised by the dissent were federalism, whether the conduct at issue is sexual harassment, and First Amendment concerns about the aggressor’s speech being protected. In response, I argue that the majority opinion does not violate federalism principles, the harassment qualifies as …

Pennhurst, Chevron, And The Spending Power, Peter J. Smith

GW Law Faculty Publications & Other Works

Under Pennhurst, a court may conclude that Congress has imposed a condition on the grant of federal funds to a state recipient only if Congress unambiguously expressed its intent to do so; under Chevron, the existence of statutory ambiguity with respect to a particular issue requires the reviewing court to defer to a reasonable agency interpretation of the ambiguous statutory language. What, then, should a court do when the terms of a federal-state grant program's condition are not fully elaborated in the statute and when the agency charged with enforcing the statute has issued regulations that purport to define the …

Davis V. Monroe County Board Of Education: The Unresolved Questions,, Joan E. Schaffner

GW Law Faculty Publications & Other Works

This article focuses on the recent trend of permitting liability of schools when students are sexually harassed, which the Supreme Court has only recognized for twenty years. I examine the majority and dissenting opinions of the Court’s most recent decision about this topic, Davis v. Monroe County Board of Education and analyze three questions brought to light by Davis and Gebser v. Lago Vista Independent School District. These questions are: (1) what qualifies as “actionable” sexual harassment, (2) who must receive notice, and (3) what satisfies the “deliberate indifference” standard from Davis. The answers to these questions are just …