Law Commons^™

Animal Sentience: History, Science, And Politics, Andrew N. Rowan, Joyce M. D'Silva, Ian J.H. Duncan, Nicholas Palmer

Animal Sentience

This target article has three parts. The first briefly reviews the thinking about nonhuman animals’ sentience in the Western canon: what we might know about their capacity for feeling, leading up to Bentham’s famous question “can they suffer?” The second part sketches the modern development of animal welfare science and the role that animal-sentience considerations have played therein. The third part describes the launching, by Compassion in World Farming, of efforts to incorporate animal sentience language into public policy and regulations concerning human treatment of animals.

Does Tax Matter? Evidence On Executive Compensation After 162(M)'S Repeal, Andrew Lund, Brian Galle, Gregg D. Polsky

Faculty Publications

No abstract provided.

Difficulty Of Care: Alligning Tax And Health Care Policy For Family Caregiving, Christine S. Speidel

Faculty Publications

In the United States millions of people live with disabilities, many of whom require assistance with activities of daily life to remain in their homes and communities. However, financial support for this assistance is limited. Many caregivers forgo working outside the home in order to provide care to a family member. And while state and federal programs provide some compensation for caregiving, caregivers frequently face problems including poverty, lack of health insurance, lack of Social Security and Medicare credits, and lack of retirement savings. Our nation’s paltry support for caregiving threatens the practical ability of people with disabilities to choose …

Transit States To Destination Nations: Mexican And Moroccan Asylum Policies, Stephanie Evans

Vanderbilt Journal of Transnational Law

Much of the literature surrounding immigration and asylum analyzes the policies adopted by highly developed nations like the United States and countries in the European Union. However, as these nations' policies become increasingly restrictive, more migrants are turning towards neighboring nations that are easier to access but that have less developed immigration and asylum systems. Mexico and Morocco are two such nations. Historically, each has been a transit state--a nation that migrants traveled through in order to reach other states. However, both Mexico and Morocco are becoming destination nations. Social science scholarship has analyzed and compared changes in Mexico's and …

Sexkopslagen In The States: An American Version Of The Nordic Model To Address Sex Trafficking In The United States, Olivia Hartjen

Vanderbilt Journal of Transnational Law

Prostitution, and the widely-encompassing commercial sex industry, has been a staple of all societies for centuries. Although the typical narrative regarding prostitution is one of moral abhorrence and criminalization, prostitution's spotlight has been recast with the acknowledgment and advocacy against related conduct: sex trafficking. Traffickers earn about $150 million annually from trafficking operations, $99 million of which is accounted for by sex trafficking. Although the United States officially criminalized trafficking in 2000, those engaged in prostitution, whether voluntarily or via trafficking, continue to be criminalized and further victimized through legal schemes perpetuated by the federal and state governments. Various other …

The Image Of European Union Law In Bilateral Relations, Sharon Pardo, Lior Zemer

Vanderbilt Journal of Transnational Law

The impact of foreign law on the development of national laws has been analyzed and vindicated in numerous studies in comparative legal literature. These studies typically focus on the two most prominent legal systems--common law (the Anglo-American system) and civil law (the Continental system). The historical reasons for this are clear, emanating from the fact that the world's legal systems are based on these legal regimes and are amended in the spirit of changes made to them. Over the years, however, with the many effects of legal and economic globalization, legal systems have become a diverse mosaic which has appropriated …

Judicial Deference To Administrative Interpretation Of Statutes From A Comparative Perspective, Vincent Martenet

Vanderbilt Journal of Transnational Law

This Article examines, from a comparative perspective, how judicial deference to administrative interpretation of statutes takes place and whether it is constitutionally admissible. Since constitutions and statutes rarely deal expressly with this issue, courts may have to determine whether or not such deference is permitted, and, if so, whether generally or in certain cases only. The constitutional, legal, and judicial context prevailing in each country is particularly important in this regard. Nevertheless, it may provide courts with little, if any, guidance on the specific issue of deference to administrative statutory interpretation. In this respect, a nuanced approach along all or …

Re-Emphasizing African Bioethics In Light Of Potential Crispr-Based Treatment For Hiv And Sickle Cell Disease, Taylor Daniel

Vanderbilt Journal of Transnational Law

Recent genetic studies indicate that CRISPR-Cas9, a biological gene-editing mechanism derived from bacteria, may be capable of curing HIV and Sickle Cell Disease. Clinical research for HIV and SCD is prevalent in African nations because of the high incidence of those diseases in all forms. Because past research studies in Africa demonstrate how Western companies can abuse lax ethics regulations in developing African nations, ethics systems must prevent this new, potentially far-reaching CRISPR technology from being prematurely and unethically used on African research participants. In updating current international bioethics frameworks, drafters should pay particular attention to its application in African …

A False Messiah? The Icc In Israel/Palestine And The Limits Of International Criminal Justice, Jeremie Bracka

Vanderbilt Journal of Transnational Law

This Article challenges the International Criminal Court’s (ICC) quasi-messianic mandate in the Middle-East. It casts doubt over the legal basis and desirability of an ICC intervention in the situation of Palestine. Despite the prosecutor’s formal opening of an investigation in 2021, there exist formidable obstacles to exercising jurisdiction over Gaza and the Israeli settlements. The Office of the Prosecutor (OTP) faces an uphill battle based on complex territorial and temporal dimensions. Indeed, the admissibility hurdles at the ICC of Palestinian statehood, complementarity, gravity and the interests of justice merit close inquiry. This Article also challenges the ICC as an ideal …

Pornography-Based Sex Trafficking: A Palermo Protocol Fit For The Internet Age, Hope Watson

Vanderbilt Journal of Transnational Law

The United Nations Palermo Protocol provides an international framework for regulating human trafficking with aims of increasing perpetrator prosecution and victim rehabilitation. Signatory nations implement this resolution through domestic legislation. Discrepancies across these statutes result in dangerous jurisdictional gaps and chaotically varied law enforcement approaches. Though legal scholarship rarely addresses the topic, pornography-based sex trafficking provides a clear example of this trend. The unique digital features of the internet compound these challenges. This Note seeks to close procedural gaps and alleviate policing frustrations through a proprietary examination of the Protocol’s “exploitation” definition and suggests an amendment to the Protocol that …

How To Treat The Wto's Problem With Precedent, Timothy Meyer

Vanderbilt Journal of Transnational Law

This Article argues that the World Trade Organization’s Appellate Body (AB), or a successor body, must become more transparent in justifying its decision to rely (or not) on prior decisions. The AB’s practice of precedent—which the United States cited as a cause of its decision to paralyze the AB by blocking new appointments-—is similar to how it has approached “likeness” in nondiscrimination cases. It placed a lot of weight on whether two cases (or products) are sufficiently similar to be compared, and it spent relatively less time substantively justifying its treatment of prior cases. Because the WTO does not have …

Compensation For Environmental Damage: Progressively Casting A Wider Net, But What’S The Catch?, M P Ram Mohan, Els R. Kini

Vanderbilt Journal of Transnational Law

In the case Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua)–-Compensation Owed by The Republic of Nicaragua to The Republic of Costa Rica (the Costa Rica case), the International Court of Justice (ICJ) had to ascertain the compensation amount due by Nicaragua for the environmental damage it had caused to Costa Rica. This was the first time the ICJ was asked to weigh in and settle an environmental damage compensation claim between two states. After a concise introduction in Part I, this Article will first review the distinction between state responsibility for wrongful acts …

A World Of Their Own: Illiberal Religious Communities Struggle To Comply With Covid-19 Public Health Regulations, Shai Stern

Vanderbilt Journal of Transnational Law

The COVID-19 pandemic did not eliminate existing social tensions; rather, it at times intensified them. Thus, it is unsurprising that. the tension between the liberal state and illiberal religious communities likewise intensified, as those communities were late to comply with COVID-19 public health regulations issued by state authorities. This Article suggests that alongside the behavioral and psychological explanations for individual non-compliance, illiberal religious communities' late response to the COVID-19 threats stems out of these communities' unique characteristics and deeply held norms. It provides five explanations supporting this argument and argues that all result from the interventionist liberal-centric policies embraced by …

Structured To Fail: Lessons From The Trump Administration's Faulty Pandemic Planning And Response, Alejandro E. Camacho, Robert L. Glicksman

GW Law Faculty Publications & Other Works

The Trump Administration’s response to the COVID-19 pandemic is a stark reminder that poorly designed government can be a matter of life and death. This article explains how the Administration’s careless and delayed response to the crisis was made immeasurably worse by its confused and confusing reallocation of authority to perform or supervise tasks essential to reducing the virus’s ravages.

After exploring the rationale for and impact of prior federal reorganizations responding to public health crises, the article shows how a combination of unnecessary and unhelpful overlapping authority and a thoughtless mix of centralized and decentralized authority contributed to the …

Emerging Policy And Practice Issues (2020), 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 2020), attempts to identify the key evolving trends and issues in U.S. federal procurement for 2020-2021 and beyond. 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 paper discusses, among other things, special emergency procurement authorities deployed during the coronavirus pandemic, the high degree of uncertainty currently being experienced in the public procurement sphere as the Biden administration begins, …

Assessing The Trade Agenda For Government Procurement In The Biden Administration, Christopher R. Yukins

GW Law Faculty Publications & Other Works

This paper, prepared shortly before President Joe Biden was inaugurated, discussed key trade issues for the incoming administration in public procurement. The piece reviewed major trade measures in procurement taken during the Trump administration – most of which were predictable from the time Trump was elected. The paper turned to the major trade challenges that faced the Biden administration, in areas as diverse as climate change, cybersecurity and the protectionism in post-Brexit Europe, and then assessed how the Biden administration might address these challenges, especially given Joe Biden’s support for “Buy American” policies during the 2020 campaign. The paper also …

Privacy Harms, Daniel J. Solove, Danielle Keats Citron

GW Law Faculty Publications & Other Works

Privacy harms have become one of the largest impediments in privacy law enforcement. In most tort and contract cases, plaintiffs must establish that they have been harmed. Even when legislation does not require it, courts have taken it upon themselves to add a harm element. Harm is also a requirement to establish standing in federal court. In Spokeo v. Robins, the U.S. Supreme Court has held that courts can override Congress’s judgments about what harm should be cognizable and dismiss cases brought for privacy statute violations.

The caselaw is an inconsistent, incoherent jumble, with no guiding principles. Countless privacy violations …

The Expanding Labor Dimension Of Us-Negotiated Regional Trade Agreements: Tpp And Usmca, Steve Charnovitz

GW Law Faculty Publications & Other Works

During the past several years, the US government has negotiated two regional trade agreements with far reaching labor provisions — the Trans-Pacific Partnership (TPP) and the United States-Mexico-Canada Agreement (USMCA). Signed in early 2016, the TPP labor chapter enhances second-generation worker rights in several significant ways: First, the TPP obligates each party to "adopt and maintain" statutes, regulations, and practices governing acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health, as determined by that party. Second, the obligation not to waive or derogate from fundamental labor rights or conditions of work is …

The Government Contracts Reference Book: A Comprehensive Guide To The Language Of Procurement, Ralph C. Nash, Steven L. Schooner, Karen R. O'Brien-Debakey, Vernon J. Edwards

GW Law Faculty Publications & Other Works

This book - first published in 1992 and now in its fifth edition - is intended to offer concise, comprehensive information to the practitioner of the art of government contracting. Looking up a key term, the reader can find a definition, followed by a summary of where the term is used in the statutes or regulations dealing with the procurement process. The book also includes references to literature where the term is more fully discussed. The book is not designed as a standalone encyclopedia: it is a first reference, pointing the user to additional sources as needed. The book makes …

Judges In Lawyerless Courts, Anna E. Carpenter, Colleen F. Shanahan, Jessica Steinberg, Alyx Mark

GW Law Faculty Publications & Other Works

The typical American civil trial court is lawyerless. In response to the challenge of pro se litigation, scholars, advocates, judges, and courts have embraced a key solution: reforming the judge’s traditional role. The prevailing vision calls on trial judges to set aside traditional judicial passivity, simplify court procedures, and offer a range of assistance and accommodation to people without counsel.

Despite widespread support for judicial role reform, we know little of whether and how judges are implementing pro se assistance recommendations. Our lack of knowledge stands in stark contrast to the responsibility civil trial judges bear – and the power …

The Supreme Court Should Eliminate Its Lawless Shadow Docket, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

Over the last six years, the Supreme Court has adopted a regular practice of making many of its most important decisions without giving any reasons for those decisions. The Court's justification for this practice is the temporary nature of the effects of the many decisions in which it stays or declines to stay a major government action. Many of those decisions have enormous long-term effects, however. In many cases, they are the only decision the Court will ever make with respect to an important government action.

In this essay, Professor Pierce describes and explains the extraordinary growth of the Court's …

Breaking Down The Silos That Harm Children: A Call To Child Welfare, Domestic Violence And Family Court Professionals, Joan S. Meier, Vivek Sankaran

GW Law Faculty Publications & Other Works

The intersection of domestic violence and child maltreatment has been the subject of research and reform efforts focused on the need to integrate a better understanding of domestic violence into child welfare system practice. But a similar effort at integration of domestic violence and child maltreatment concerns has never been directed at family courts adjudicating private custody litigation. And while such courts’ responses to domestic violence have been analyzed and discussed extensively in the literature, legal discussions of custody courts’ responses to child maltreatment are few and far between. At the same time, there has been an explosion of traumatic …

The Varieties Of Counterspeech And Censorship On Social Media, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

The year 2020 was without a doubt a remarkable and unprecedented one, on many accounts and for many reasons. Among other reasons, it was a year in which the major social media platforms extensively experimented with the adoption of a variety of new tools and practices to address grave problems resulting from harmful speech on their platforms — notably, the vast amounts of misinformation associated with the COVID-19 pandemic and with the 2020 presidential election and its aftermath. By and large — consistent with First Amendment values of combatting bad speech with good speech — the platforms sought to respond …

Habeas, History, And Hermeneutics, Jonathan R. Siegel

GW Law Faculty Publications & Other Works

Supreme Court Justices Clarence Thomas and Neil Gorsuch recently proposed a radical shrinking of federal habeas corpus relief for state prisoners who are in custody pursuant to a final judgment of criminal conviction. They called for a return to the supposedly traditional principle that federal courts cannot grant habeas relief to such prisoners unless the state court that sentenced them lacked jurisdiction. This Article explains that (1) this supposedly traditional principle was not, in fact, a traditional principle of habeas, and (2) even if it were, Congress has displaced it by statute. Exploring the errors in the Justices’ arguments provides …

Adaptive Management And Nepa: How To Reconcile Predictive Assessment In The Face Of Uncertainty With Natural Resource Management Flexibility And Success, Robert L. Glicksman, Jarryd Page

GW Law Faculty Publications & Other Works

For years, public lands scholars lamented the limited success that federal agencies had in applying adaptive management decisionmaking processes in pursuit of their natural resource management responsibilities. Agency duties to comply with the National Environmental Policy Act (NEPA) have played a role in creating a disconnect between the theory and application of adaptive management. NEPA was designed to force agencies to predict (and consider ways to avoid) the adverse environmental impacts of actions before committing to them. Adaptive management is built on the premise that, at least in conditions of uncertainty such as those that often characterize natural resource management, …

The Pandemic Crisis Shows That The World Remains Trapped In A 'Global Doom Loop' Of Financial Instability, Rising Debt Levels, And Escalating Bailouts, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

In January 2020, I completed a book (Taming the Megabanks: Why We Need a New Glass- Steagall Act) analyzing the financial crises that precipitated the Great Depression of the 1930s and the recent Great Recession. My book argued that the world’s financial system was caught in a “global doom loop” at the beginning of 2020. Bailouts and economic stimulus programs during and after the global financial crisis of 2007-09 (GFC) had imposed heavy debt burdens on most governments, and leading central banks were carrying bloated balance sheets. The rescues arranged by governments and central banks during the GFC created a …

Tax Incentives And Sub-Saharan Africa, Karen B. Brown

GW Law Faculty Publications & Other Works

The OECD’s Base Erosion Profit Shifting (BEPS) project has taken a powerful and welcome look at many of the tax avoidance strategies that proliferate in a world where multinational enterprises are in the business of exploiting gaps in the tax laws of different countries to minimize their ultimate tax bills. The focus on international consensus and prescriptions for reform has not been an unqualified good for the nations in Sub-Saharan Africa, which find themselves in the position of reacting to standards and taking on compliance burdens set without sufficient consideration of their special circumstances. Because the path for the BEPS …

Can The Federal Trade Commission Use Rulemaking To Change Antitrust Law?, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

Lina Khan, the new Chair of the FTC, proposes to use notice and comment rulemaking to make major changes in antitrust law by declaring many practices to be “unfair methods of competition” within the meaning of that term in section five of the FTC Act. She has the strong backing of President Biden and her Democrat colleagues. That raises two questions. Does the FTC have the power to use the notice and comment process to implement Section five? If it has that power, can it use the rulemaking process to make the major changes in antitrust law that Chair Khan …

The Resilience Of Substantive Rights And The False Hope Of Procedural Rights: The Case Of The Second Amendment And The Seventh Amendment, Renée Lettow Lerner

GW Law Faculty Publications & Other Works

At first glance, there seem to be strong affinities between the Second Amendment and the Seventh Amendment. Both the right to keep and bear arms and the right to civil jury trial potentially empower ordinary citizens. Both could check elites.

But there are crucial differences between these rights. I focus on two of them here. The first is relatively straightforward; it concerns individual accountability—or the lack thereof—and the ability to understand responsibilities. Gun owners and users generally have individual responsibility for their actions, and the ability to understand their responsibilities. In contrast, by design civil jurors lack individual responsibility. And …

Foster Care And The Growing Tension Between The Religion Clauses: A Comment On Rogers V. Hhs, Robert W. Tuttle

GW Law Faculty Publications & Other Works

In 2018, the U.S. Department of Health & Human Services and the State of South Carolina agreed to waive their requirements of religious non-discrimination by state-funded, licensed child placement agencies. The state had discovered that its largest provider, Miracle Hill, approved the applications of only those who shared its Evangelical Protestant faith. Eden Rogers and Brandy Welch, a Unitarian, married same-sex couple, applied to Miracle Hill to be certified as foster parents. After Miracle Hill refused on religious grounds to assess the couple’s fitness, the couple filed suit against various federal and state defendants, alleging that the waivers constituted an …