Law Commons^™

Promoting Firearm Industry Accountability For Civil And Human Rights Abuses In The United States Through Strategic Transnational Litigation, Arturo J. Carrillo, Jonathan E. Lowy, Emily Fallin

GW Law Faculty Publications & Other Works

The United Nations Guiding Principles on Business and Human Rights (UNGPs) have made substantial in-roads across a range of industries, but the firearm industry is not one of them. The United States is the largest producer of firearms for civilian acquisition in the world, yet U.S. firearm manufacturers, sellers, and distributors remain generally impervious to regulation. Moreover, federal and state legislation provides unique legal protections for firearm industry actors, rendering them largely shielded from accountability for contributing to gun deaths and injuries. This creates a paradox that fuels the endemic gun violence crisis in the United States and throughout the …

The Future Of Governance, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

In this contribution to a symposium, Professor Pierce describes the traditional ways in which we have governed the federal regulatory process and then describes the major changes in the legal and political environment that require us to create a new regulatory governance structure. He concludes that we need to take three steps: (1) change the primary election process in every state from a closed primary to either an open primary or a bipartisan primary; (2) defend the rulemaking process from the many attacks on it; and (3) be prepared to abandon the traditional structure of agency adjudications in favor of …

The Union Gospel Mission Cases, Church Autonomy, And Co-Religionist Hiring: A Response To Professor Esbeck, Robert W. Tuttle, Peter J. Smith

GW Law Faculty Publications & Other Works

Courts have increasingly applied a doctrine of church autonomy to resolve claims involving religious organizations. A recent decision of the Ninth Circuit invoked the doctrine to permit religious employers to favor co-religionists in hiring, even for non-ministerial positions. Professor Carl Esbeck has written a thoughtful critique of the court’s decision. This essay responds to Esbeck and, more broadly, provides a criticism of church autonomy doctrine and a roadmap for decision when the Ninth Circuit’s opinion is reviewed en banc. In our view, courts should apply a doctrine of ecclesiastical abstention, which prevents them from resolving specifically religious questions. But we …

Beyond Digital Pessimism: How A Focus On Trust Can Enhance Eu Digital Law, Neil Richards, Woodrow Hartzog, Claire Boine, Lea Despotis

Faculty Scholarship

Lawmakers looking to foster technological innovation on the European market are adopting laws they hope will promote consumer trust in digital products. Their strategy can be broken down into three components. First, they aim to empower consumers to choose how much data they want to share with companies through an express consent framework. Second, they seek to avoid harms from digital products through product safety law such as adapting the Product Safety Regulation to digital products or adopting the AI Act. Third, they endeavor to prevent manipulation of consumers through digital means.

In this essay, we argue that while laudable, …

Spending Programs And The New Roberts Court, Nicole Huberfeld

Faculty Scholarship

The Supreme Court is poised to place new limits on Congress’s spending power at the urging of states vying for regulatory dominance, particularly in health care and public health. This article is the first to highlight and catalog the throughlines of argumentation, which sparked after states successfully challenged the ACA but have grown into opposing more than Medicaid’s cooperative federalism. This means federal and state programs that heavily rely on federal spending power are at risk, so studying this pattern is imperative. The article begins with a descriptive account of increasing spending power challenges, which make use of converging factors …

The Difference A Year Makes: The Admissibility Of Expert Opinion Testimony Under The 2023 Amendment To Federal Rule Of Evidence 702, Daniel J. Capra, Liesa L. Richter

Faculty Articles

No abstract provided.

How The Supreme Court’S Inconsistent Approach To Granting Emergency Relief Will Exacerbate, Rather Than Mitigate The Disruption Its Emergency Stay Policy Is Supposed To Address, Harvey L. Reiter

Cardozo Law Review de•novo

The federal government has used the Supreme Court’s emergency or “shadow” docket to great effect this past year, securing stay after stay of lower court rulings that had blocked many of the President’s executive orders. But the Court’s rulings have come, almost invariably, without any explanation of its reasoning. And its opaque and uneven rulings have also come at a potential cost to the Court’s credibility. This Article illustrates the uneven nature of the Court’s rulings by contrasting two lines of cases: (1) the Court’s stays of lower court rulings restoring to their positions FTC, NLRB, EEOC, and MSPB members …

Hallucinated Legal Presentations In Civil Trial Courts, Jeffrey Parness

Cardozo Law Review de•novo

Increasingly, hallucinated legal presentations are being discovered and sanctioned in U.S. federal and state civil trial courts. Such presentations encompass papers that are signed, filed, submitted, or advocated, which contain nonexistent legal sources, whether case precedents, statutes, court rules, administrative regulations, or otherwise. These presentations may be discovered by judges, presenting lawyers, opposing lawyers, unrepresented parties, or witnesses.

The Anonymous Officer, Shawn E. Fields

Faculty Scholarship

(Forthcoming 2026) Masked, plainclothes immigration agents in unmarked vans have terrorized communities in Chicago, Los Angeles, Minneapolis, and beyond. The indiscriminate violence committed by federal officers who at times appear indistinguishable from paramilitary units has forced immigrants into hiding and left lawmakers scrambling to address a growing and largely legal anonymity crisis in law enforcement. This Article explores the undertheorized implications of anonymous law enforcement, situating the rise of masked policing within a larger project of democratic retrogression and executive aggrandizement. Anonymity in policing and immigration enforcement frustrates core democratic norms of transparency, accountability, and legitimacy, providing the opacity needed …

Trump's War On Diversity, Equity, And Inclusion, Nancy C. Marcus

Faculty Scholarship

Among the many head-spinning developments that have occurred from the first days of President Trump’s second presidency are his attacks on DEI (diversity, equity, and inclusion), including anti-DEI edicts targeting educational institutions. This article provides a chronology and analysis of the early 2025 Trump administration’s attacks on DEI targeting schools nationwide, the resulting harms, and responses thereto, including litigation. A discernible refrain in the early litigation challenging President Trump’s anti-DEI attacks targeting educational institutions across the country has been how those attacks cross a clear constitutional line: the prohibition of unconstitutionally obscure governmental mandates. At its core, the void-for-vagueness doctrine …

Police Reform As System Justification, Shawn E. Fields

Faculty Scholarship

System Justification Theory (SJT) provides a useful lens through which to critique recent police reform efforts. SJT posits that members of society tend to justify and maintain existing social and political systems even when those systems disadvantage them, because the predictability of the status quo provides palliative, epistemic, and existential comfort in what otherwise appears to be an unjust and inequitable societal structure. Contrary to “false consciousness” theories, SJT claims that disadvantaged groups may intentionally rationalize what they know to be an unfair status quo, because doing so reduces social anxiety and threat while providing much desired order and meaning …

Post-Chevron Deference In Asylum Proceedings, Shawn E. Fields

Faculty Scholarship

The Supreme Court held for four decades that Chevron deference should apply in all immigration proceedings. How, then, will asylum proceedings change in a post-Chevron world? When, and under what circumstances, will courts continue to defer to the findings of immigration judges and the Board of Immigration Appeals (BIA)? And why does it matter? This Article answers those questions.

These issues require urgent examination for three reasons. First, they directly confront an issue pending before the U.S. Supreme Court in Urias-Orellana v. Bondi: Without the protection of Chevron insulating BIA decisions from meaningful judicial review, can certain legal questions like …

A Comparative View Of Artificial Intelligence Regulation In The European Union, Japan, People's Republic Of China, And The United States Of America, James Cooper, Kashyap Kompella

Faculty Scholarship

The Article analyzes the divergent regulatory architectures governing artificial intelligence across the European Union, the United States, Japan, and the People’s Republic of China, tracing their evolution from early data-protection frameworks to contemporary system-level governance. The Article demonstrates how the EU’s AI Act operationalizes a comprehensive risk-based regulatory model that imposes ex-ante obligations, categorical prohibitions, and conformity assessments to structure market behavior. The U.S. trajectory is defined by sectoral statutes, oscillating executive priorities, and a persistent absence of federal coherence, producing a permissive environment punctuated by episodic soft-law interventions and subsequent deregulatory shifts under the 2025 administration. Japan advances an …

Considerations For Assigned Water After Expiration Of The 2007 Guidelines, Kathryn Sorensen, Sarah Porter, Anne Castle, John Fleck, Eric Kuhn, Jack Schmidt, Katherine Tara

The Traveling Wilburys of the Colorado River

As Colorado River supplies and demands reach razor-thin margins, new tools to provide adaptive capacity will play a critical role in sustaining communities across the West. We must reduce our consumption of water, while finding ways to cushion the impact. One of the most innovative tools for doing this, developed over the last two decades, is “Assigned Water” - giving users the ability to store conserved water earmarked for their own future use. Originally developed as “Intentionally Created Surplus” in the 2007 Colorado River Interim Guidelines, Assigned Water has been revised and expanded through U.S. Mexico Treaty Minutes and as …

My Fifty Years, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

The Fiduciary Game, Lauren R. Roth

Elisabeth Haub School of Law Faculty Publications

Fiduciary duties are supposed to bridge the gap between public and private law. Private actors who engage in “public or quasi-public” functions (e.g., corporate directors and pension administrators) are often subject to fiduciary constraints to protect vulnerable parties who lack power in relationships with these actors. Recently, scholars have argued that both courts and legislatures have inappropriately expanded the use of fiduciary duties to purely private relationships. But what if the problem is not the expansion of fiduciary duties to private relationships, but the increasing delegation of public powers to private actors whose behavior cannot be adequately constrained by fiduciary …

Navigating State Law In Local Climate Action, Vincent M. Nolette, Daniel J. Metzger, Olivia N. Guarna, Amy E. Turner

Sabin Center for Climate Change Law

Local governments are well-positioned to lead the fight against climate change by reducing community-wide greenhouse gas emissions, promoting renewable energy resources, and otherwise advancing climate mitigation and adaptation goals. Many local governments have already taken actions, and there is more they can do. In mitigating and adapting to the climate crisis, local governments must be aware of and act consistently with preemptive state laws that limit their authority. This report provides state-by-state information, resources, and analysis for nineteen states on key state-local preemption issues.

The states covered in this report represent several of the “swing” states that are the most …

Ai Is Coming For Your Mind: A Case For Consumer Protection, Blithe Ellis

Gateway Reader- Individual Papers

• The Problem: Immersive and anthropomorphic artificial intelligence (AI) chatbots can trigger, amplify, or reshape psychotic experiences—colloquially termed "AI psychosis"—by mirroring user language, validating delusional beliefs, and prioritizing user engagement over safety.

• The Method: The author analyzes peer-reviewed psychiatric literature, media reports from 2025, and user discussions on the r/ChatGPT Reddit forum to advocate for consumer protection regulations.

• Quantitative Finding: The analysis incorporates data from the year 2026, references cases involving a 26-year-old woman, and evaluates a specific Reddit thread featuring hundreds of user stories regarding AI-fueled delusions.

• Qualitative Finding: Shared themes in AI-associated distress include messianic missions, delusions of chatbot …

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The Brave New World Of Administrative Law, Amy J. Wildermuth

Articles

Administrative law is in substantial flux. Over the last fifteen years, beginning with its decision in Free Enterprise Fund v. Public Company Accounting Oversight Board, the Supreme Court has transformed administrative law in profound ways. In the decade and a half since that case, we have witnessed core precedents fall or be substantially narrowed, with seemingly more on the horizon. Many have characterized the Court’s project as aggrandizing power to the President, as seeking to rein in runaway agencies, or even as undoing the administrative state.

The reality is more complex. To grasp where the Court’s project might take …

Equity In Place, Segregation, And The Phillips Neighborhood, Myron W. Orfield

Articles

This Article describes an existential legal and factual conflict about residential segregation. It is centered in a neighborhood a few blocks north of where George Floyd—and more recently Renee Good—were murdered. Five years before Floyd’s murder, the conflict reached a breaking point, resulting in three lawsuits. One involved federal civil rights and two involved state civil rights claims that housing policy was causing deeper residential and educational segregation. Much of this debate was summarized in a series of articles in the journal Housing Policy Debate before the lawsuits were filed.

On one side were proponents of greater residential and educational …

Expert Report On Valuation Of Controlling Shares Of Publicly Traded Companies Under The California Billionaire Tax Act (Cbta), David Gamage, Brian D. Galle, Emmanuel Saez, Darien Shanske

Faculty Publications

This short memo addresses concerns that have been raised under the proposed California Billionaire Tax Act (CBTA or Act) about the valuation of "voting" or "special control" shares, particularly with regard to shares held in publicly traded companies. A misreading of the CBTA is circulating that claims that voting shares of all assets will be taxed in full regardless of their actual value. This is false, as shown by a straightforward reading about the provision relating to voting and special control shares in context.

Feudal Is Fine Because Property Is Sovereignty: Rational Basis Equal Protection And The New Noncitizen Land Laws, Jill M. Fraley

Scholarly Articles

States are enacting a new wave of land laws restricting noncitizens’ ownership of real property, prompting immediate constitutional challenges grounded in equal protection and federal preemption. Most commentators assume these laws are unlikely to survive modern scrutiny. This Article argues that these land laws rest on a constitutional logic that remains both doctrinally intact and normatively compelling: the treatment of real property as an incident of state sovereignty rather than an ordinary site of economic regulation.

Against prevailing accounts, this Article shows that the Court’s jurisprudence has never subjected all citizenship-based classifications to heightened scrutiny. Instead, the Court has consistently …

The Indelible Flaws Of Conviction Integrity Units, Sarah Gottlieb

Scholarly Articles

Conviction Integrity Units within prosecutors’ offices have doubled in number over the last 10 years. Leaders of the innocence movement initially praised these units, believing they were necessary for the future of innocence work given their unique access to discovery, and scholars hoped Conviction Integrity Units would lead prosecutors away from fighting against claims of innocence to sincere and open review of wrongful convictions. But, as Conviction Integrity Units proliferated, the question of whether prosecutors can fulfill the mandate of these offices and conduct thorough review of their colleagues’ work has received insufficient inquiry, particularly given that official misconduct continues …

Human Rights In The U.S.: Handbook For Public Interest Attorneys (2026 Version), Lauren E. Bartlett

Faculty White Papers

Legal services attorneys, public defenders, law clinics, and other public interest law practitioners, fight every day to secure basic rights for the most vulnerable persons in the U.S.—among them, people living in poverty, racial minorities, children, the elderly, and immigrants. Yet, U.S. law more often than not falls short of providing a “floor” of minimum protections for these marginalized individuals. More expansive guarantees are found under international human rights law, and some advocates in the U.S. successfully incorporate human rights norms, language and strategies into their domestic work to help advocate for increased protections.

This Handbook was designed for attorneys …

Situating Stillbirth Within A Reproductive Justice Methodology Amidst Perilous Politics, Jamie Abrams

Book Reviews

Stillbirth and the Law, published in 2025 by the University of California Press, offers both a deeply personal and rigorously insightful examination of how law, medicine, and policy intersect around stillbirth. Jill Lens brings her full self to this work in ways that reflect deep feminist roots cultivated over years of Lens’s impressive scholarly production. Lens channels her lived experience of stillbirth into a comprehensive analysis that combines data, theory, law, narrative, policy, and pragmatic solutions.

The reader leaves the book equally feeling Lens’s deep love and longing for her son, Caleb, and equipped with a lengthy list of tools, …

Witness And Record On Complicity And Clergy Abuse, Scott Douglas Jacobsen, Amos N. Guiora, Katherine Archer, Hermina Nedelescu, Melanie Sakoda

Utah Law Faculty Scholarship

This first anthology assembles a multi-jurisdictional set of interviews to examine clergy abuse and institutional responses. The primary emphasis is Orthodoxy contexts and comparative discussion across religious settings. The core material consists of advocacy perspectives, firstperson accounts, and professional analyses. We need thoughtful clergy to speak out. The core problems: sexual abuse, spiritual abuse, power-asymmetrical relationships, and failure in impartial authoritative mechanisms of consequence, acting or even existing, in the first place.

Diamonds Are Forever, As Are Trademarks: Articulating The Twists Of Section 43(A) Trade Dress Protection For Jewelry Designs Through The Facts Of David Yurman V. Mejuri, Daphne Singer

Celebrating WCL Student Authors

Introduction: 

Jewelry is adornment--adornment that has “spawned cultural movements, launched political dynasties, and even started wars.”This Article will analyze the application of Section 43(a) of the Lanham Act,which covers trade dress, to jewelry design. Trade dress law is a powerful tool for designers because it regulates the protection of designs rather than words.Despite this strength, trade dress has not been analyzed in the context of the jewelry industry because legal academics have dismissed jewelry as an accessory to fashion law. Luxury jewelry and watches are often used to convey status via “recognizable, distinguished designs that consumers associate with the particular …

“No One Can Hear You Scream”: Intimate Partner Violence And Family Justice Centers In Rural America, Jordan Stevenson

Legal Writing Competition Winners

In rural Kentucky, where cars are a necessity to traverse the rugged Appalachian Mountains and sparsely populated farmlands, “Barbara’s” abusive husband couldn’t let her get away—so he set her car aflame. Although census-defined rural areas contain only 20% of the United States population, some studies have found that intimate partner violence is more common and severe in rural areas than urban or suburban regions. 

People, especially women, in rural areas experience intimate partner violence in unique ways tied to their geographic and cultural context. Consequently, organizations, courts, and law enforcement struggle to meet the needs of affected populations in rural …

Third Tri-National Meeting On Labour Rights - Report Of Recommendations For Upcoming Review Of The Cusma (Usmca, T-Mec), Mark Rowlinson, Sara Slinn

Conference Papers

The CUSMA-USMCA-T-MEC (CUSMA) Labour Chapter and its Facility-Specific Rapid Response Mechanism (RRM) are key areas of focus in the ongoing review of CUSMA approaches. The third Tri-National Meeting on Labour Rights under CUSMA was held on December 9th and 10th, 2024, at Osgoode Hall Law School in Toronto. This hybrid meeting brought together knowledgeable academics, organizations, and individuals from the three CUSMA partner countries to evaluate the Labour Chapter, particularly the RRM, and to discuss reform recommendations. This report summarizes the challenges and proposed reforms presented and discussed during this third Tri-National Meeting, building on recommendations from the two previous …

Havens For Corporate Lawbreaking, William J. Moon

Faculty Scholarship

Whether corporations are obligated to maximize profits or if they ought to consider societal interests more broadly remains one of the most highly contested debates in corporate law. Yet even the fiercest defenders of the firm’s profit motive concede that the corporation’s profit-seeking function cannot justify breaking the law. As a matter of American corporate law, directors and officers are in breach of their fiduciary duties if they facilitate or engage in profit-maximizing illegal activities. Or so we thought.

This Essay reveals a troubling trend of jurisdictions undercutting the legal compliance obligations of directors and officers. The current legal architecture …