Law Commons^™

Between A Rock And A Hard Place? Ict Companies, Armed Conflict, And International Law, Arturo J. Carrillo

GW Law Faculty Publications & Other Works

What is an ICT company to do when operating in the midst of international armed conflict like the one raging in Ukraine? How should tech company executives respond to urgent government demands – often conflicting -- to propagate or censor online content arising in the context of war, including disinformation? And what of their demands to access the personal data or communications of users, ostensibly to safeguard security but nonetheless presenting the potential for abuse? Governments make difficult demands of ICT companies by seeking to impose heavy restrictions on the free flow of information and data privacy via the latter’s …

Feature Comment: The Inflation Reduction Act: A New Role For Green Procurement?, Christopher R. Yukins, Nathaniel Green

GW Law Faculty Publications & Other Works

The 2022 Inflation Reduction Act of 2022 (IRA) (H.R. 5376, now P.L. 117-169) marks one of the most significant steps forward in U.S. environmental policy in decades. The IRA provides for hundreds of billions of dollars in energy and climate spending. While federal procurement provisions do not play a central role in the IRA, the legislation does include significant provisions related to federal spending, for example regarding federal purchases of environmentally sound building products. Even more importantly, taken in context, the IRA follows a number of other steps taken to advance “green” procurement by the Biden administration. The legislation thus …

Transformational Procurement—The Past And Future Of Global And Local Public Purchasing—Views From The Expert Community On What Public Money Did And Will Still Need To Buy, Steven L. Schooner, Gustavo Piga

GW Law Faculty Publications & Other Works

This short piece discusses a (rather informal) survey of approximately two dozen public procurement experts (including University professors, consultants, national regulators, multilateral development bank members, and lawyers; all chosen primarily based upon their prior dealings with Professor Piga). The survey looks back (or, in other words, at where we've been) and forward (or, in other words, where we're going.) The results of the survey were originally presented at the Global Revolution XI Conference at the University of Nottingham in June of 2022.

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 …

Review Of Shucheng Wang, Law As An Instrument: Sources Of Chinese Law For Authoritarian Legality (Cambridge University Press 2022), Donald C. Clarke

GW Law Faculty Publications & Other Works

This brief note reviews Shucheng Wang’s Law as an Instrument: Sources of Chinese Law for Authoritarian Legality. It finds that the author provides a well-informed, in-depth exploration of the sources of Chinese law and offers rich food for thought on these and other questions in the world of Chinese legal studies. The author brings a good sense of the political realities of the Chinese legal system to his study.

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

GW Law Faculty Publications & Other Works

This symposium Issue of the Columbia Law Review marks a moment of convergence and opportunity for an emerging field of legal scholarship focused on America’s state civil trial courts. Historically, legal scholarship has treated state civil courts as, at best, a mere footnote in conversations about civil law and procedure, federalism, and judicial behavior. But the status quo is shifting. As this Issue demonstrates, legal scholars are examining our most common civil courts as sites for understanding law, legal institutions, and how people experience civil justice. This engagement is essential for inquiries into how courts shape and respond to social …

Racial Capitalism In The Civil Courts, Tonya L. Brito, Kathryn A. Sabbeth, Jessica Steinberg, Lauren Sudeall

GW Law Faculty Publications & Other Works

This Essay explores how civil courts function as sites of racial capitalism. The racial capitalism conceptual framework posits that capitalism requires racial inequality and relies on racialized systems of expropriation to produce capital. While often associated with traditional economic systems, racial capitalism applies equally to nonmarket settings, including civil courts.

The lens of racial capitalism enriches access to justice scholarship by explaining how and why state civil courts subordinate racialized groups and individuals. Civil cases are often framed as voluntary disputes among private parties, yet many racially and economically marginalized litigants enter the civil legal system involuntarily, and the state …

The Second Circuit's Cantero Decision Is Wrong About Preemption Under The National Bank Act, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

On September 15, 2022, the Second Circuit Court of Appeals issued its decision in Cantero v. Bank of America, N.A. Cantero held that the National Bank Act (NBA) preempted the application to national banks of a New York law requiring home mortgage lenders to pay a minimum rate of interest on mortgage escrow accounts. The Second Circuit declared that New York’s “minimum-interest requirement would exert control over a banking power granted by the federal government, so it would impermissibly interfere with national banks’ exercise of that power.”

The Second Circuit’s decision is clearly erroneous and should be rejected by the …

No Man Is An Island In Defense Procurement: Developments In Eu Defense Procurement Regulation And Its Implications For The U.S., Luke R.A. Butler, Michael Bowsher, Christopher R. Yukins

GW Law Faculty Publications & Other Works

The Russian invasion of Ukraine and the United Kingdom’s exit from the European Union have focused minds on the EU’s role as a defense actor. In the context of defense procurement, this includes whether the EU should itself co-fund cooperative programmes with Member States (through the European Defense Fund, for example, and Permanent Structured Cooperation (PESCO) initiatives among Member States), what can be commonly procured (and what cannot, e.g., due to prohibitions against offsets), and how (for example, under the competing constraints of Article 346 of the Treaty on Functioning of the European Union (TFEU) and the 2009 European Defense …

Is China A Dual State?, Donald C. Clarke

GW Law Faculty Publications & Other Works

Ernst Fraenkel’s theory of the dual state, as adumbrated in his book The Dual State: A Contribution to the Theory of Dictatorship, has attracted the attention of scholars of Chinese law. This paper argues that, contrary to the views of many of these scholars, the model of the dual state—a Normative State coexisting with a Prerogative State—simply does not fit China unless that model is stretched so far as to be substantially different from the one actually proposed by Fraenkel. First, the Chinese state does not present institutionally the kind of duality observed in dual states. There are, for …

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 …

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 …

Data Vu: Why Breaches Involve The Same Stories Again And Again, Daniel J. Solove

GW Law Faculty Publications & Other Works

This short essay discusses why data security law fails to effectively combat data breaches, which continue to increase. With a few exceptions, current laws about data security do not look too far beyond the blast radius of the most data breaches. Only so much marginal benefit can be had by increasing fines to breached entities. Instead, the law should target a broader set of risky actors, such as producers of insecure software and ad networks that facilitate the distribution of malware. Organizations that have breaches almost always could have done better, but there’s only so much marginal benefit from beating …

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 …

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 …

Remorse, Relational Legal Consciousness, And The Reproduction Of Carceral Logic, Kathryne M. Young, Hannah Chimowitz

GW Law Faculty Publications & Other Works

One in seven people in prison in the US is serving a life sentence, and most of these “lifers” will someday be eligible for discretionary parole. But little is known about a key aspect of parole decision-making: remorse assessments. Because remorse is a complex emotion that arises from past wrongdoing and unfolds over time, assessing the sincerity of another person’s remorse is neither a simple task of lie detection, nor of determining emotional authenticity. Instead, remorse involves numerous elements, including the relationship between a person’s past and present motivations, beliefs, and affective states. To understand how parole board members make …

The Failure Of Data Security Law, Daniel J. Solove, Woodrow Hartzog

GW Law Faculty Publications & Other Works

In this book chapter, we survey the law and policy of data security and analyze its strengths and weaknesses. Broadly speaking, there are three types of data security laws: (1) breach notification laws; (2) security safeguards laws that require substantive measures to protect security; and (3) private litigation under various causes of action. We argue that despite some small successes, the law is generally failing to combat the data security threats we face.

Breach notification laws merely require organizations to provide transparency about data breaches, but the laws don’t provide prevention or a cure. Security safeguards laws are often enforced …

Research Directions For Historic Preservation Law, Sara C. Bronin

GW Law Faculty Publications & Other Works

Preservation laws govern an ever-increasing range of public and private activities affecting historic properties. Enacted at the federal, tribal, state, and local levels, these laws shape four aspects of preservation practice: designation, public obligations, private constraints, and financial incentives. Unfortunately, research on the scope and impact of these laws has been lacking. Whose history do we preserve? What costs are imposed by historic designation, and on whom? Do preservation regulations prepare us for climate change? Who are the regulators? What legal tools maximize economic activity in general, and equitable growth more specifically? Considering these and other unanswered questions, this chapter …

Role Of Courts In Ensuring Water Justice In India: Brasilia Declaration On Water Justice And Beyond, Gayathri D. Naik

Articles

Water being a scarce resource, questions of its allocation and distribution, coupled with concerns of its depletion have troubled policy makers, legislators, and judges alike. While, over the years there has been significant development on the discussion surrounding the rights-duty paradigm of water resources, by establishing the obligation of states, discussion surrounding a certain value-based approach to guide the minds of important stakeholders in creating and enforcing policy has gained far less traction comparatively. It is in this context that this paper explores an alternative justice-based approach to water, drawing from the works of Amartya Sen on capabilities and more …

The Legal Framework For Multimodal Transport In West Africa: The African Continental Free Trade Area In Perspective, Damilola Idris Osinuga

World Maritime University Ph.D. Dissertations

This thesis examines how multimodal transport can play a role in achieving the objectives of the African Continental Free Trade Area (AfCFTA). The thesis argues that multimodal transport is cheaper compared with unimodal transportation. While there are a number of issues affecting the operationalisation of multimodal transport in Africa, this study considers, at its core, the legal regimes and other fragmented institutional and governance frameworks of multimodal transport in West Africa. The fragmentation of the legal framework governing multimodal transport leads to uncertainty and unforeseeability of the liability of parties involved in multimodal transport, consequently leading to increased legal costs. …

A Zebra's Trust: How Rare Disease Communities' Participation In Data Trusts' Governance Builds Trust And Drives Research, Samantha C. Smith

Vanderbilt Journal of Transnational Law

Data sharing plays an increasingly prominent role in society, but it remains a necessary component of rare disease research. Because rare diseases are--as the name indicates-- rare, researchers have only a small number of patients from whom to collect data, and the expense of cross-border data sharing to increase research data is significant. Nevertheless, the rise of artificial intelligence and precision medicine increases the need for usable rare disease data. Current legislation and regulations aimed at addressing rare diseases fall short in addressing these data sharing needs for rare disease research. While the European Union (EU) has invested in rare …

Contracts Formed By Software: An Approach From The Law Of Mistake, Vincent Ooi

Research Collection Yong Pung How School Of Law

A ‘Contracting Problem’ arises when software is used to autonomously enter into contracts without human input. Questions arise as to how and whether there can be an expression of an objective intention to be legally bound. This article considers three leading solutions to the Contracting Problem. The ‘Mere Tools Theory’, which views software as ‘mere tools’ of communication, is too harsh as it binds users to any software malfunction. The Agency Approach, which treats software as Electronic Agents, capable of contracting on behalf of their users, is untenable as it ascribes unrealistic characteristics to software. The article submits that the …

The 2022 Global Philanthropy Environment Index Singapore, Tan K. B. Eugene

Research Collection Yong Pung How School Of Law

The three indicator questions in this section pertain to the laws and regulations governing philanthropic organizations (POs). The scoring questions for this category cover three aspects of regulations: (A) formation and registration; (B) operations; and (C) dissolution.

Charitable Organizations In Singapore: From Clan Based To State Facilitated Endeavors, Hang Wu Tang

Research Collection Yong Pung How School Of Law

Singapore, with a five million population, has a vibrant charitable sector with over 2000 registered charities attracting approximately USD$2.18 billion in annual donations. How did Singapore’s charitable sector achieve its current level when it has been, in the past, segregated along mainly religious, race and clan-based communities? This paper explores this question by piecing together the current ecosystem, regulatory and tax infrastructure which facilitates the charitable sector in Singapore. Central to the development of the charitable sector has been the Singapore government’s role of being a gatekeeper, regulator and enabler of charities. In analysing the government’s role in the charitable …

Law's Duct Tape? Using Public Nuisance To Fix The Holes In Administrative Law, Anthony J. Sebok

Articles

No abstract provided.

Trust In Science: The Crisis Of Expertise As An Ideological, And Not Only A Scientific Controversy, David S. Caudill

Faculty Publications

Within the so-called "culture wars" dividing our nation politically, there is a law-related division over the trustworthiness of consensus science-the so-called "crisis of expertise." When the science concerning climate change, mask-wearing, or vaccinations becomes politicized, it loses its mooring in scientific evidence and impacts the effectiveness of regulatory law. Perhaps counter-intuitively, however, the solution is likely not to wear "Because Science" t-shirts while insisting on "cold, hard facts" and diagnosing as stupid those who believe the scientific theories of marginalized, minority-view scientists. Indeed, a certain level of modesty-regarding the uncertainties and tentativeness of even the best science-is necessary for the …

What’S Going On? An Overview Of Diversity, Equity, And Inclusion Dispute Resolution Initiatives In New York, Robyn Weinstein, Michelle Lavrichenko

Articles

Leaders in the dispute resolution profession in New York State have been working to implement various fellowships, mentorship programs, scholarships, and other initiatives aimed at increasing diversity, equity, and inclusion in the field of dispute resolution. This article will provide an overview of the current ADR-related diversity, equity, and inclusion initiatives throughout New York and introduce you to five individuals participating in DEI ADR fellowships and mentorship programs across the state.

Robert Cover’S Love Of Stories: A Rumination On His Wanting To Discuss The Brothers Karamazov With Me Across Five Conversations During The Last Five Years Of His Life, With An Application To The Chauvin Murder Trial Of 2021, Richard H. Weisberg

Articles

The field of Law and Literature, perhaps more than any other area of legal studies, has been touched deeply by Robert Cover’s life and work. My interactions with Bob over the last half dozen years of his tragically short life provide an insight, recounted in a somewhat personal vein here, into his profound engagement with stories, with the most enduring part of that revitalized inter-discipline. I specify and illustrate five conversations I had with him during conferences, family interactions, or long New Haven walks beginning in 1981 and ending the day before his untimely death in the Summer of …