Law Commons^™

Faulty Foundations: An Investigation Into Toxic Homes In The Blackfeet Nation, Kathleen Elyse Shannon

Graduate Student Theses, Dissertations, & Professional Papers

In 2002, a class action lawsuit came out of the Blackfeet Nation. The plaintiffs were residents of a federally-funded housing project called Glacier Homes, and they were suing Blackfeet Housing and the Department of Housing and Urban Development because their homes were making them sick. The case got some local media coverage for a couple years. But it was ultimately forgotten and the plaintiffs never got a remedy.

This long-form audio project revives this story and asks listeners to think about these plaintiffs’ arguments in a modern light. The Glacier Homes offer a lens through which to think about several …

Book Review Of Donald R. Rothwell, Islands And International Law (Oxford: Hart Publishing, 2022), Sean D. Murphy

GW Law Faculty Publications & Other Works

In recent years, international rules concerning islands have increasingly featured as a part of inter-State relations, whether with respect to Chinese activities in the South China Sea, the decolonization of the Chagos Archipelago in the India Ocean, the effects of tiny features on delimitation in the Black Sea or the Bay of Bengal, or the plight of low-lying Pacific nations in the face of sea-level rise. A single article (Article 121) amongst the 320 articles that comprise the 1982 U.N. Convention on the Law of the Sea Convention (LOSC) is dedicated to the “regime of islands,” providing some important guidance, …

The Digital Services Act And The Brussels Effect On Platform Content Moderation, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

The EU’s latest regulation of social media platforms – the recently enacted Digital Services Act – will create tensions and conflicts with the US speech regime applicable to social media platforms. The DSA, like the precursor regulations of social media platforms by the EU, will further instantiate the Brussels Effect, whereby EU regulators wield powerful influence on how social media platforms moderate content on the global scale. This is because the DSA’s regulatory regime (with its huge penalties for noncompliance) will incentivize the platforms to skew their global content moderation policies toward the EU’s instead of the United States’s balance …

First Amendment Protections For “Good Trouble”, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

In the classical era of the Civil Rights Movement in the 1950s, 1960s, and 1970s, activists and protestors sought to march, demonstrate, stage sit-ins, speak up, and denounce the system of racial oppression in our country. This was met not just by counterspeech—the preferred response within our constitutional framework—but also by efforts by the dominant power structure to censor and shut down those forms of public rebuke of our nation’s racist practices. Fast forward seventy years, and the tactics of the dominant power structure have essentially remained the same in response to today’s civil rights activists who seek to protest …

Eu Foreign Subsidies Regulation Update: Risks And Responsibilities For Foreign Firms In Eu Public Procurement Markets, Pascal Friton, Ramona Ader, Christopher R. Yukins

GW Law Faculty Publications & Other Works

The European Union’s Foreign Subsidies Regulation (FSR) (Regulation (EU) 2022/2560 of the European Parliament and of the Council of 14 December 2022 on foreign subsidies distorting the internal market) has now entered into force, along with an implementing regulation (Regulation (EU) 2023/1441 of 10 July 2023), which provide important clarifications for foreign firms competing for major awards in EU procurement markets. The FSR is the EU’s effort to address distortive foreign government subsidies in the EU internal market, including in public procurement. The EU restricts Member States’ power to subsidize domestic firms under the EU’s “State aid” doctrine; the FSR …

Strengthening The Law Of Self-Defense After Bruen, Cynthia Lee

GW Law Faculty Publications & Other Works

On June 22, 2022, the Supreme Court issued its opinion in New York State Rifle & Pistol Association v. Bruen, striking down New York’s over 100-year-old law requiring individuals seeking to carry a firearm concealed in public to show a special need for self-protection. Holding that New York’s law violated the Second Amendment, the Court rejected the means-end scrutiny that lower courts had previously used to determine whether firearms restrictions comported with the Second Amendment, explaining that the appropriate test for evaluating the constitutionality of a firearms restriction is whether it is consistent with the Second Amendment’s text and historical …

This Is Not Your Grandparents’ Military Justice System: The 2022 And 2023 National Defense Authorization Acts, David A. Schlueter, Lisa M. Schenck

GW Law Faculty Publications & Other Works

For the past decade there have been numerous and significant changes to the Uniform Code of Military Justice (UCMJ), the statutory basis for the military justice system. Although the Military Justice Act of 2016 made major changes to the UCMJ, the calls for change continued. One of the most-often heard calls for reform over the last decade has suggested removing commanders from the military justice system. In the 2022 National Defense Authorization Act, Congress amended the UCMJ to dramatically reduce the commander’s role in what Congress specified as “covered offenses" such as sexual assault and provided that those listed offenses …

The Remains Of The Establishment Clause, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

The very first words of the Bill of Rights mark religion as constitutionally distinctive. Congress may not enact laws respecting an establishment of religion – in particular, acts of worship, religious instruction, or proselytizing. A pluralist, liberal democracy requires separation of civil government from these distinctively religious activities.

From the middle of the 20 th Century until Justice O’Connor’s retirement in 2005, the Supreme Court energetically animated that principle of distinctiveness. In a series of decisions in the last decade, however, the Court has upended its longstanding approach to what is distinctive about religion in constitutional law. Notably, this process …

U.S. Department Of Justice Executive Branch Engagement On Litigating The Administrative Procedure Act, Aram Gavoor, Steven A. Pratt

GW Law Faculty Publications & Other Works

The Administrative Procedure Act is a broadly worded statute that has benefitted from caselaw to fill many of its gaps, ambiguities, and inconsistencies. But the case method directs judicial attention to slivers of APA inquiry that are required to resolve cases in as-applied challenges to rules and adjudications. There is another method of APA interpretation that has never been deployed in the statute’s 77-year life—that of intentional collaboration between the executive branch and the judiciary. Acting on their litigation and case management authorities as well as their unique power to persuade the judiciary on questions of administrative procedure, the Attorney …

’We Didn’T Think It Would Be Well Received’: The Gay Alliance Of Students’ Legal Victory Over Virginia Commonwealth University, 1974–1976, Michael S. Hevel, Timothy Reese Cain

Rehabilitation, Human Resources and Communication Disorders Faculty Publications and Presentations

In 1974, a group of college students attempted to undertake the simple act of registering an official student organization at Virginia Commonwealth University (VCU). In contrast to every other student group that had sought such status, the group, the Gay Alliance of Students (GAS), was denied registration. They were denied because the group was composed of LGBTQI+ students who wanted to promote the well-being and understanding of themselves and other LGBTQI+ individuals on campus. This article examines the founding, experience, and legal battles of GAS, an important organization in both the history of LGBTQI+ students and the history of LGBTQI+ …

Front Matter

Lewis & Clark Law Review

Front Matter includes Table of Contents, Masthead, and faculty for Lewis & Clark Law Review Volume 26, Issue 4.

U.S. Disaster Policy: Oversight Challenges And The Promise Of Multi-Level Governance, Nancy J. Knauer

Lewis & Clark Law Review

U.S. disaster preparedness and response policy now plays an increasingly central role in the lives of many Americans. The COVID-19 pandemic and the strong uptick in extreme weather events have placed a heightened burden on our emergency management resources. In 2021, it seemed that hardly a week went by without a new emergency declaration as we battled devastating wildfires and drought in the West and catastrophic flooding and storms in the East. To further complicate matters, these unrelenting weather-related disasters played out within the context of an unprecedented and multi-year public health crisis—the COVID-19 pandemic. This Article examines the history …

Intellectual Property, Antitrust, And Access To Essential Technologies, Joy Y. Xiang

Lewis & Clark Law Review

This Article explores whether and how we may leverage antitrust law to calibrate the exploitation of intellectual property (“IP”) rights—e.g., IP licensing—to facilitate needed access to essential technologies. The Article’s motivation is to help developing countries find an effective way to address their complaints that owners of IP-protected technologies refuse to license needed technologies or charge unfairly high prices. The Article concludes that leveraging antitrust law unilaterally to address these typical challenges developing countries experience in accessing essential technologies may be more effective and efficient than attempting to change the IP regime. The IP regime is governed by negotiated and …

Modalities Of Social Change Lawyering, Christine Cimini, Doug Smith

Lewis & Clark Law Review

The last decade has seen the rise of new kinds of grassroots social movements. Movements including Occupy Wall Street, Black Lives Matter, Sunrise, and #MeToo pushed back against long-standing political, economic, and social crises, including income inequality, racial inequality, police violence, climate change, and the widespread culture of sexual abuse and harassment. As these social change efforts evolve, a growing body of scholarship has begun to theorize the role of lawyers within these new social movements and to identify lawyering characteristics that contribute to sustaining social movements over time. This Article surveys this body of literature and proposes a typology …

Assaulting The Citadel Of Section 230 Immunity: Products Liability, Social Media, And The Youth Mental Health Crisis, Matthew P. Bergman

Lewis & Clark Law Review

The exponential rise in social media use among minors since 2008 is responsible for a precipitous increase in youth mental health injuries and suicides. These harms result from the design of social media platforms which elevate maximizing user engagement over providing minors with a safe online experience, yet social media companies benefit from broad construction of § 230 immunity to evade liability. Courts’ expansive interpretation of § 230 is historically analogous to the application of the privity doctrine in the 19th century to shield manufacturers from liability for designing dangerously defective products. The demise of the privity doctrine and rise …

In Search Of: A Federal Safe Harbor For State Legalization Of Psilocybin, Kathryn L. Tucker, Holly Martinez, Ebony Morris

Lewis & Clark Law Review

In 2020, Oregon voters passed the Oregon Psilocybin Services Act (PSA). The PSA allows for the adult use of psilocybin at designated service centers and does not require a medicinal purpose for consumption. While the use of psilocybin becomes legal in Oregon in 2023 under the PSA, psilocybin remains a Schedule I substance under the federal Controlled Substances Act. This conflict between state legalization and federal prohibition creates significant challenges for individuals and businesses intending to abide by the requirements of the PSA—including the potential of jail time, fines, and forfeiture of property. This Essay explores three potential solutions the …

Is Incorporation A License To Violate Human Rights With Impunity? As Of Now, Violations Are In Vogue, Sadie Wolff

Lewis & Clark Law Review

For decades, the international community has relied on corporations to take responsibility for the protection of human rights and manage accountability for violations of those rights. Yet countless human rights violations have ensued within the fashion industry as a result of multinational corporations conducting business within the current framework. This Comment looks at the human rights at stake if the international community stays its current course, offers insight into how the existing framework developed, questions the efficacy of this approach, and suggests a new framework for the international community to consider.

Just And Equitable, But Not Practicable: The Problems Of A Loosely Factored Spousal Support Framework In Oregon And Potential Solutions, Aime Lee Ohlmann

Lewis & Clark Law Review

Spousal support in Oregon, as in many states, is based upon a loosely factored framework that allows wide judicial discretion and limited predictability for practitioners. This makes routine settlement of the issue of spousal support challenging and increases litigation. Many states and organizations have developed frameworks for spousal support “calculators” or “formulas” that provide more predictable and consistent results for families and practitioners and better meets the established goals of spousal support. This Note explores the problems of a loosely factored framework, what solutions exist in other states, and what solutions may be implemented in Oregon.

Front Matter

Lewis & Clark Law Review

Front Matter includes Table of Contents, masthead, and faculty for Lewis & Clark Law Review Volume 27, Issue 1, 2023.

Covid-19, Free Exercise, And Most Favored Nation Status, Mark Strasser

Lewis & Clark Law Review

Commentators and some Justices suggest that religious activity is accorded a kind of Most Favored Nation status under free exercise guarantees—if a statutory exception is made for a relevantly similar secular activity, then an exception must also be made for religious activity. Such an approach would require a careful consideration of which secular activities were relevantly similar to religious activities to warrant protecting the latter. But the Most Favored Nation approach involves a mischaracterization of the past jurisprudence. Further, as is evidenced in the COVID cases, the U.S. Supreme Court does not engage in a nuanced consideration of which activities …

The Right To Migrate, Matthew J. Lindsay

Lewis & Clark Law Review

Since the late-19th century, the Supreme Court has insisted that the preservation of national sovereignty requires a constitutional chasm between immigration law and ordinary law. If the Court is to bridge that chasm, it must reimagine the longstanding premise of the federal immigration power that the presence of noncitizens in U.S. territory menaces the nation’s sovereignty and security. This Article contributes to that reimagining by chronicling a compelling alternative worldview with a venerable historical pedigree—that of a quintessentially American right to migrate.

During the Founding Era, American statesmen described the impoverished subjects of Europe’s monarchies as protagonists in an unfolding …

Some Realism About Choice-Of-Law Statutes And The Common Law: The Oregon Example, John T. Parry

Lewis & Clark Law Review

Choice-of-law doctrine presents perpetual change. Common law doctrine is the primary driver of these changes, but change and reform need not come from common law alone. As Robert Leflar once observed, “it should not make much difference whether a governing choice-of-law rule . . . is found in the common law or in a statute. The same rule might be formulated in either way.” This Article assess the utility of choice-of-law statutes, on their own merits and as a substitute for common law reform. The Article begins by surveying the choice-of-law landscape, with its twin problems of multiplicity of methods …

More Than The Minimum: Why States Should Enact Better Fmla Equivalents, Matt Heldt

Lewis & Clark Law Review

For many workers, taking time off from work for a serious health condition or to care for a family member’s serious health condition is complicated. Since 1993, the Family Medical Leave Act (FMLA) has provided job protection for workers who take leave. However, not all workers are covered. This Comment looks at where the FMLA comes up short, how some states are providing broader coverage and more robust benefits, and advocates for states to continue improving upon the FMLA baseline.

Taking Corrigibility Seriously, Dora Klein

Faculty Articles

This article argues that the Supreme Court's creation of a category of "irreparably corrupt" juveniles is not only an epistemological mistake but also a tactical mistake which has undermined the Court's express desire that only in the "rarest" of cases will juveniles be sentenced to life in prison without the possibility of parole.

Is, Ought, And The Limited Competence Of Experts, Adam J. Macleod

Faculty Articles

The moral innovators whom C. S. Lewis criticized in The Abolition of Man supposed that they could draw imperatives out of their superior understanding of sentiment and instinct. They assumed that to know what human beings want to do is to know what human beings should do. But people want to do all sorts of things that are irrational, pointless, harmful, and even downright evil. And people want inconsistent things. So the innovators are incoherent. As Lewis correctly affirmed, no amount of knowledge about nature or the world is sufficient by itself to direct us to do what is good …

The Securities And Exchange Commission As Human Rights Enforcer?, Jena Martin, Rachel Chambers

Faculty Articles

On April 28, 2022, the Securities and Exchange Commission (SEC) announced that it had charged Brazilian mining company Vale with misleading investors about safety issues prior to a deadly dam collapse that killed hundreds and led to significant environmental harm in the Brazilian state of Minas Gerais. The action against Vale was largely seen as the agency's first significant move after it had created an Environmental, Social, and Governance (ESG) Task Force within the Division of Enforcement, the purpose of which is to identify and investigate ESG-related violations.

This action against Vale also emerged at a time when scholars, practitioners, …

Change Is Inevitable. Exhaustion Is Optional: Get Your Students Nextgen Ready With An Upcycled Mpt, Maggie Eilertson, Melissa Bezanson Shultz

Faculty Articles

Despite an understandable desire to play ostrich—to dig our heads into the sand so we cannot see and, therefore, can entirely ignore what is about to happen—change is coming to legal education. In July of 2026, the National Conference of Bar Examiners (NCBE) will begin to phase out the Uniform Bar Exam (UBE) and will administer a new national licensing exam for law school graduates. This reality means that, depending on the jurisdiction, at least some part-time students who matriculated in 2022 and full-time students who will matriculate in 2023 will be faced with a new final hurdle before attorney …

Originalism And The Meaning Of "Twenty Dollars", Michael L. Smith

Faculty Articles

Originalism claims to provide answers, or at least assistance, for those hoping to interpret a Constitution filled with wide-ranging, morally loaded terminology. Originalists claim that looking to the original public meaning of the Constitution will constrain interpreters, maintain consistency and predictability in judicial decisions, and is faithful to ideals like democratic legitimacy. This essay responds with the inevitable, tough question: whether originalism can tell interpreters what the Seventh Amendment's reference to "twenty dollars" means--both as a matter of original meaning and for interpreters today.

While this appears to be an easy question, I demonstrate that rather than telling modern legal …

Emerging Technology’S Language Wars: Ai And Criminal Justice, Carla L. Reyes

Faculty Journal Articles and Book Chapters

Work at the intersection of Artificial Intelligence systems (AI systems) and criminal justice suffers from a distinct linguistic disadvantage. As a highly interdisciplinary area of inquiry, researchers, lawmakers, software developers, engineers, judges, and the public all talk past each other, using the same words but as different terms of art. Evidence of these language wars largely derives from anecdote. To better assess the nature and scope of the problem, this Article uses corpus linguistics to reveal inherent value conflicts embedded in definitional differences and debates. Doing so offers a tool for reconciling specific linguistic ambiguities before they are embedded in …

Table Of Contents - Cardozo Arts & Entertainment Law Journal, Vol. 40, Iss. 3

Cardozo Arts & Entertainment Law Journal

No abstract provided.