Law Commons^™

Taming The Megabanks: Why We Need A New Glass-Steagall Act, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

This blog post was published in The FinReg Blog (hosted by Duke’s Global Financial Markets Center) on September 24, 2020. It provides an overview of my book of the same title, published by Oxford University Press on October 2, 2020.

Understanding Global Legal Pluralism: From Local To Global, From Descriptive To Normative, Paul Schiff Berman

GW Law Faculty Publications & Other Works

As a scholarly project, global legal pluralism has been extraordinarily successful, and it is not difficult to see why. Legal pluralists had long observed that, in any given social context, people are regulated by multiple different legal and quasi-legal regimes and that these regimes are sometimes associated with formal state law, but sometimes they are not. Global legal pluralism took that insight and applied it to the post–Cold War international and transnational arena at just the right moment. Circa 1998, international and transnational institutions were proliferating, industry standard-setting bodies and corporate codes of conduct were taking on new prominence, and …

The Rocky Road To Energy Dominance: The Executive Branch’S Limited Authority To Modify And Revoke Withdrawals Of Federal Lands From Mineral Production, Robert L. Glicksman, Hillary M. Hoffman

GW Law Faculty Publications & Other Works

The Trump Administration’s implementation of its America First Energy Plan, whose goal is achieving U.S. “energy dominance,” has relied heavily upon public mineral development. Mineral development on federal lands is largely governed by statute. The statutory legal mechanisms by which the Executive Branch can “open” or “close” an area of federal lands to mineral development, whether onshore or offshore, are withdrawal, modification, and revocation.

The Federal Land Policy and Management Act (FLPMA) and the Outer Continental Shelf Lands Act (OCSLA) are the primary statutes that govern onshore and offshore mineral development on over 2 billion acres of federal lands. Both …

Regulation In The Biden Administration, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

Professor Pierce wrote this essay in which he predicts the regulatory actions of the Biden Administration at the request of a journal that specializes in reporting on regulatory developments to readers in the UK and the EU.

Material Liberty And The Administrative State: Market And Social Rights In American And German Law, Francesca Bignami

GW Law Faculty Publications & Other Works

This chapter begins with a forgotten story from American constitutional law. Raymond Belcher worked for a coal mining company in Lynco, West Virginia. During his working life, he paid into the federal insurance scheme for disability—Social Security Disability Insurance (SSDI). Belcher later broke his neck on the job and claimed on his federal SSDI insurance. But he was in for a bad surprise. In 1965, after he began contributing but before he became disabled, Congress enacted an “offset” provision to reduce benefits for individuals like him who qualified for both state-run worker’s compensation and federal SSDI. Belcher went all the …

Modeling Settlement Bargaining With Algorithmic Game Theory, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

Past computational models of settlement bargaining have lacked explicit game theoretic foundations. Algorithmic game theory, however, offers techniques that can find perfect Bayesian equilibria even where closed-form mathematical solutions may be intractable. Some recent mathematical models tackle two-sided asymmetric information, including evidentiary signals models, in which the judgment is a sum of both shared and independent private information, and correlated signals models, in which both parties receive noisy signals about the same information. To relax assumptions inherent in these models, this paper employs several progressively more complicated techniques, including iterative elimination of dominated alternatives, no regret learning, and counterfactual regret …

The Occ's And Fdic's Attempts To Confer Banking Privileges On Nonbanks And Commercial Firms Violate Federal Laws And Are Contrary To Public Policy, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

The Office of the Comptroller of the Currency (OCC) and the Federal Deposit Insurance Corporation (FDIC) have adopted several recent measures that attempt to confer benefits and privileges of banks on nonbank providers of financial services and commercial firms. The OCC’s and FDIC’s initiatives are unlawful and dangerous because they would allow nonbanks and commercial firms to subvert fundamental public policies embodied in federal laws governing banks and bank holding companies.

In 2018, the OCC announced that it would approve national bank charters for “fintech” firms that provide lending and payment services but do not accept deposits. The New York …

Great Powers And New Risks: What Businesses And Regulators Should Know About China’S Strategic Ambitions, F. Scott Kieff, Thomas D. Grant

GW Law Faculty Publications & Other Works

China’s geopolitical ambitions give rise to risks that government agencies and the businesses they regulate need to address. In particular, Military-Civil Fusion (MCF), a whole-of-government legal and administrative machinery created by the Chinese Communist Party (CCP), aims to give China’s military, as well as China’s state championed companies, the technologies essential to strategic competitiveness in the decades ahead. In service of China’s effort to acquire technology, MCF breaks down barriers of professional responsibility and confidentiality that organizations and individuals in the West take for granted. Through both executive and legislative action, the United States has begun to address MCF. To …

Gsa’S Commercial Marketplaces Initiative: Opening Amazon And Other Private Marketplaces To Direct Purchases By Government Users, Christopher R. Yukins, Abraham Young, Kristen Ittig, Eric Valle

GW Law Faculty Publications & Other Works

The U.S. General Services Administration (GSA) opened a new chapter in public procurement by awarding three contracts—to Amazon Business, Overstock.com, and Fisher Scientific—that will allow federal users to buy directly from online electronic marketplaces, with sales anticipated to total $6 billion annually. This proof-of-concept effort, dubbed the “commercial platforms” initiative by GSA, marks a radical departure from traditional procurement practices because it will allow individual Government users (not necessarily procurement officials) to make “micro-purchases” (generally up to $10,000) using Government purchase cards. By removing the federal procurement system as an intermediary in the purchasing process, and in essence outsourcing the …

The Death Of The Genus Claim, Dmitry Karshtedt, Mark A. Lemley, Sean B. Seymore

GW Law Faculty Publications & Other Works

The central feature of patent law in the chemical, biotechnology, and pharmaceutical industries is the genus claim – a patent that covers not just one specific chemical but a group of related chemicals. Genus claims are everywhere, and any patent lawyer will tell you they are critical to effective patent protection.

But as we show in this article, the law has changed dramatically in the last twenty-five years, to the point where it is no longer possible to have a valid genus claim. Courts almost always hold them invalid. Remarkably, they do this without having acknowledged that they have fundamentally …

Covid-19: Lessons Learned In Public Procurement. Time For A New Normal?, Laurence Folliot Lalliot, Christopher R. Yukins

GW Law Faculty Publications & Other Works

The COVID-19 crisis upended markets and assumptions in public procurement, and posed an almost existential threat to traditional procurement systems. Seismic changes in economic relationships – governments were no longer monopsonists, government officials failed as economic intermediaries between suppliers and the public, and supplies that were traditionally treated as private (such as medical equipment) suddenly became “public” goods under worldwide demand. Traditional trade rules were rendered irrelevant, as the goal was no longer simply to open individual procurements but rather to open borders to intense global demand. Although the disruption was revolutionary, ironically the solution is to return to first …

The Trans Panic Defense Revisited, Cynthia Lee

GW Law Faculty Publications & Other Works

Violence against transgender individuals in general, and trans women of color in particular, is a significant problem today. When a man is charged with murdering a transgender woman, a common defense strategy is to assert what is called the trans panic defense. The trans panic defense is not a traditional criminal law defense. Nor, despite its name, is it recognized as a stand-alone defense. Rather, trans panic is a defense strategy associated with the provocation or heat of passion defense. A murder defendant asserting trans panic will claim that the discovery that the victim was a transgender female—an individual thought …

Comment Letter In Opposition To The Occ's Proposed "Valid-When-Made" Rule, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

This comment letter responds to a proposed rule issued by the Office of the Comptroller of the Currency (OCC), which would “codify” an alleged federal common-law “principle” known as “valid-when-made.” The proposed rule would amend two of the OCC’s regulations – 12 C.F.R. 7.4001 and 12 C.F.R. 160.110 – by providing that “interest on a loan that is permissible” for a national bank or a federal savings association, under 12 U.S.C. 85 or 12 U.S.C. 1463(g)(1), “shall not be affected by the sale, assignment, or other transfer of the loan.” 84 Fed. Reg. 64229, 64230-31 (Nov. 21, 2019). Thus, the …

Decisions In The Dark: Why "Pregnancy Exclusion" Statutes Are Unconstitutional And Unethical, Shea Flanagan

Northwestern University Law Review

Advance health care directives are tools that allow people to state their health care treatment wishes or designate a health care proxy in anticipation of being unable to make those decisions in the future, including preferences to remove life-sustaining medical treatment. However, thirty-six states currently have “pregnancy exclusion” laws that require physicians to void the advance directives of pregnant women receiving life-sustaining treatment. This Note assesses the constitutionality and ethics of state pregnancy exclusion statutes by employing a new five-category typology of current pregnancy exclusion laws. This Note argues that all categories of these statutes violate an individual’s constitutional rights …

Legal Strategies For Reining In "Unconscionable" Prices For Prescription Drugs, Michelle M. Mello, Rebecca E. Wolitz

Northwestern University Law Review

Policy discussions about the affordability of prescription drugs in the United States are infused with the theme that drug prices are unconscionably high. Many of the policy interventions proposed in Congress, the White House, and the states adopt this frame, authorizing regulatory action when prices exceed particular thresholds or otherwise constitute “price gouging” on the part of drug companies. Unsurprisingly, such initiatives have prompted legal challenges by the biopharmaceutical industry. State laws in particular are vulnerable to challenges on a number of grounds. In this Article, we focus on one avenue of challenge that has received little scholarly attention in …

Commandeering, Preemption, And Vehicle Emissions Regulation Post-Murphy V. Ncaa, Amelia Raether

Northwestern University Law Review

The Clean Air Act is often heralded as a paragon of cooperative federalism. The Act’s approach to vehicle emissions regulation in particular prescribes a unique partnership between the federal government and the state of California: while all states are bound by federally mandated vehicle emissions requirements, California may set more stringent standards in recognition of its historic role on the leading edge of environmental protection. However, in August 2018, the Environmental Protection Agency proposed not only to roll back the national emissions regulations, but also to revoke California’s ability to set more stringent standards, which include limits on greenhouse gas …

Data Imperialism: The Gdpr's Disastrous Impact On Africa's E-Commerce Markets, Cara Mannion

Vanderbilt Journal of Transnational Law

The European Union (EU) recently passed the General Data Protection Regulation--a sweeping regulatory framework that sets a new global standard for the collection, storage, and use of personal data. To ensure far-reaching compliance with the GDPR, the EU has adopted a strict take-it-or-leave-it approach--countries that wish to engage with digital users in the EU must either comply with the GDPR's expansive data obligations or risk losing access to the world's largest trading block.

This presents significant obstacles for several African nations. Notably, no African country currently has domestic laws that comply with the GDPR. Even if they did, several African …

Civil Procedure: Plaintiff Personal Jurisdiction And Venue Transfer, Scott Dodson

The Judges' Book

No abstract provided.

Constitutional Law: Symmetric Constitutionalism, Zachary S. Price

The Judges' Book

No abstract provided.

Copyright Law: Statutory Damages In The Digital Age Of Copyright Law, Ben Depoorter

The Judges' Book

No abstract provided.

Foreword, Edward J. Davila The Honorable

The Judges' Book

No abstract provided.

Civil Procedure: Beyond Bias In Diversity Jurisdiction, Scott Dodson

The Judges' Book

No abstract provided.

International Law: Immunities Of Foreign Officials From Civil Jurisdiction, Chimene I. Keitner

The Judges' Book

No abstract provided.

Health Law: Why Anti-Vaccine Claims About Nvicp Cases Are Wrong, Dorit Reiss

The Judges' Book

No abstract provided.

Tort Law: Liability For Anti-Vaccine Misinformation, Dorit Reiss, John Diamond

The Judges' Book

No abstract provided.

Constitutional Law: Should The Power Of Presidential Pardon Be Revised?, David L. Levine

The Judges' Book

No abstract provided.

Guns In The Private Square, Cody Jacobs

Faculty Scholarship

The regulation of guns has been one of the most hotly debated public policy issues in the United States throughout the country’s history. But, up until recently, it has always been just that — a debate about public policy. Two recent developments have changed the landscape and moved the debate about publicly carrying firearms from the realm of public policy, to the realm of private decision-making and private law. First, laws related to publicly carrying firearms have been dramatically loosened throughout the United States to the point that, in the vast majority of states, anyone who is legally allowed to …

The "Other" Market, Cody Jacobs

Faculty Scholarship

The hiring market for tenure-track non–legal writing positions is a world unto itself with its own lingo (i.e., “meat market” and “FAR form”), its own unwritten rules (i.e., “Do not have two first-year courses in your preferred teaching package.”), and carefully calibrated expectations for candidates and schools with respect to the process and timing of hiring. These norms and expectations are disseminated to the participants in this market through a relatively well-established set of feeder fellowships, visiting assistant professor programs, elite law schools, blogs, and academic literature on the subject.

But there is another market that goes on every year …

A Relational Turn For Data Protection?, Neil Richards, Woodrow Hartzog

Faculty Scholarship

If there’s one thing everyone in the data protection debate can agree on, it’s that it’s all about the data. All over the world, data protection regimes fixate on when data can be collected, how it is being processed, when it can be accessed or should be deleted, and whether it is personal, sensitive, or deidentified. This is true even for approaches that seem quite different at first glance, such as the U.S. and EU.

Bipa: The Most Important Biometric Privacy Law In The Us?, Woodrow Hartzog

Faculty Scholarship

In May 2020, Clearview AI abruptly ended all service contracts with all non-law enforcement entities based in Illinois. The reason? It hoped to avoid an injunction and potentially large damages under one of the most important privacy laws in America: the Illinois Biometric Information Privacy Act (BIPA).