Law Commons^™

Absolute Official Immunity In Constitutional Litigation, Michael L. Wells

Scholarly Works

Absolute official immunity blocks recovery for constitutional violations that occur in the course of legislative, judicial, prosecutorial, and testimonial functions, no matter how egregiously the officer has acted. The basic policy underlying the doctrine is that constitutional litigation will produce unacceptable social costs, mainly by discouraging officials from acting boldly and effectively in the public interest. It may be necessary to sacrifice the vindication of constitutional rights and deterrence of violations in some circumstances, but the Court’s broad function-based limits give too much weight to the costs of constitutional remedies and pays too little attention to the vindication and deterrence …

Constructing The Supreme Court: How Race, Ethnicity, And Gender Have Affected Presidential Selection And Senate Confirmation Hearings, Christina L. Boyd, Paul M. Collins, Jr., Lori A. Ringhand, Karson A. Pennington

Scholarly Works

In February 2022, President Joseph Biden announced his nomination of Ketanji Brown Jackson to serve as an associate justice on the U.S. Supreme Court. In doing so, he said this:

For too long, our government, our courts haven’t looked like America. And I believe it’s time that we have a Court that reflects the full talents and greatness of our nation with a nominee of extraordinary qualifications and that we inspire all young people to believe that they can one day serve their country at the highest level.

In the following days, Jackson’s nomination was discussed with enthusiasm, much like …

Book Review: Comparative Election Law, Lori A. Ringhand

Scholarly Works

Review of the book Comparative Election Law by James A Gardner, ed. (Cheltenham: Edward Elgar Publishing, 2022) 544 p.

The Court And The Constitution, Lori A. Ringhand

Scholarly Works

Americans do not want the Supreme Court to be just another political institution. This is apparent in the lukewarm response to even modest proposals to change the structure of the Court, such as limiting the terms of its justices or changing its size. The partisan overlay of this reaction is obvious, but the purpose of this Essay is to highlight an additional barrier to change: the dominance of originalist rhetoric in American constitutional discourse. The rhetoric of originalism has successfully tapped into many Americans’ deeply held expectations about the role of the Court and the Constitution as a unique and …

Regulating Off-Campus Student Expression: Mahanoy Area School District V. B.L.: The Good News For College Student Journalists, Leslie Klein, Jonathan Peters

Scholarly Works

This essay argues that the 2021 U.S. Supreme Court case Mahanoy Area School District v. B.L. protects off-campus college student journalism (if not published in a school-sponsored outlet) from school censorship and punishment—thanks to the majority opinion's reliance on in loco parentis principles. In short, Mahanoy made clear that K-12 students generally have diminished First Amendment rights on campus because parents have delegated to teachers and staff some of their supervisory authority. That reasoning applies with less force when students speak off campus, and it applies with no force if the speaker is a legal adult, as nearly all college …

Campbell V. Reisch: The Dangers Of The Campaign Loophole In Social Media Blocking Litigation, Clare R. Norins, Mark Bailey

Scholarly Works

Since 2016, social media blocking by government officials has been a lively battleground for First Amendment rights of free speech and petition. Government officials increasingly rely on social media to communicate with the public while ever greater numbers of private individuals are voicing their opinions and petitioning for change on government officials' interactive social media accounts. Perhaps not surprisingly, this has prompted many government officials to block those users whose comments they deem to be critical or offensive. But such speech regulation by a government actor introduces viewpoint discrimination—a cardinal sin under the First Amendment.

In 2019, three United States …

International Tax Reform: Who Gets A Seat At The Table?, Assaf Harpaz

Scholarly Works

The international tax framework relies on early-twentieth-century principles and favors the interests of the Global North, which created it. It bases taxing rights on a corporation’s physical presence and mostly allocates profits to the country of residence. Moreover, it has been slow to adapt to modern business practices. In the digital economy, companies shift profits with relative ease and often do not require a physical presence in the location of their consumers. International taxation needs reform, but leading proposals do not reflect meaningful input from the Global South and are unlikely to serve the needs of developing countries.

In 2021, …

Rights-Based Sanctions Procedures, Desiree Leclercq

Scholarly Works

Federal agencies are increasingly interpreting international labor rights and imposing a wide array of economic and financial penalties, or “rights-based sanctions,” under various laws and regulations. Congress recently vested the Office of the United States Trade Representative (USTR) with authority to impose targeted rights-based sanctions on foreign factories. USTR has begun administering its new authority with vigor. Policymakers and rights advocates hope that USTR’s enforcement activities will strengthen the protection of workers abroad.

Hidden from view, and thus largely overlooked, are the exclusory procedures that agencies follow when they administer rights-based sanctions. The Treasury Department’s Office of Financial Asset Control …

The Prosecution Bar, William Ortman

Scholarly Works

The American legal profession needs a prosecution bar. Before lawyers are permitted to appear for the government in a criminal case, they should be licensed not just to practice law, but to practice prosecution. The two are not the same. Regulating them as if they were fosters injustice and fortifies the carceral state.

“Doing justice” is the orienting creed of prosecutorial ethics, in theory, while on the ground, American prosecutors routinely indulge in unjust practices. This Article argues that prosecutors’ membership in an undifferentiated legal profession is the key to understanding the contradiction. Lawyers’ training, socialization, and professional regulation fixate …

Promise & Peril Of Plain English: Mutual Fund Disclosure Readability, Anne M. Tucker, Yusen Xia

Scholarly Works

The SEC requires mutual funds to write disclosures for the average investor using plain English. These requirements make funds’ investment strategies and associated risks transparent and accessible to investors. Improved investor understanding furthers the SEC’s regulation-through-disclosure regime. But our examination of funds’ summary prospectuses—an abbreviated discussion of a fund’s strategies and risks—suggests that funds often fail to meet the plain English standard. Our analysis of all summary prospectuses filed between 2010 and 2020 reveals that mutual funds write long, hard-to-read, and complex disclosures. Importantly, we find that failure to draft disclosures in plain English is more than a technical error. …

529 Plans And School Choice, Victoria J. Haneman

Scholarly Works

Some politicians believe that market-based approaches to education will meaningfully reshape public education in the United States. Advocates of school choice insist that competition for students will improve academic outcomes, drive innovation and improvement, and reduce political interference in the education system. Critics believe that there is little empirical support for any of these claims and fear that school choice policies worsen the problem of educational inequality. Although consumer choice is appealing, making an informed choice requires parents to navigate complicated application processes and transportation requirements, which may prove insurmountable to low-income families. The net effect of this is that …

Facts, Law, And Politics: My Account Of The House Select Committee To Investigate The Impeachment Of Attorney General Jason Ravnsborg, Ryan Cwach

South Dakota Law Review

No abstract provided.

Compensation Under The Microscope: Pardons And Compensation, Jeffrey Gutman

GW Law Faculty Publications & Other Works

A governor’s pardon power is a potentially double-edged sword. On the one hand, a governor can provide justice for a deserving criminal defendant when the judicial branch cannot or does not act. On the other hand, the governor can use the pardon power for less altruistic purposes, such as to benefit friends or political allies.

The most recent controversial use of the pardon power occurred in Kentucky. According to the Louisville Courier-Journal, Governor Matt Bevin of Kentucky issued 670 pardons and commutations during his last two months of office, including 254 pardons issued in the month between his re-election defeat …

Modern Merger Law: Dante’S Inferno Revisited, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

In this essay, Professor Pierce compares the transparent and successful operation of the Hart-Scott-Rodino decision-making process when FTC and DOJ act in accordance with the published merger guidelines, with the opaque and confused operation of that decision-making process when FTC and DOJ act in ways that are inconsistent with the guidelines. He predicts that any new guidelines that accurately reflect the policies that DOJ and FTC are actually attempting to further will be immediately enjoined. As long as FTC and DOJ continue to implement the HSR decision-making process in ways that are inconsistent with the guidelines, Professor Pierce urges firms …

The Eu Foreign Subsidies Regulation: Implications For Public Procurement And Some Collateral Damage, Pascal Friton, Max Klasse, Christopher R. Yukins

GW Law Faculty Publications & Other Works

The European Union has erected a significant new barrier to foreign competitors that seek to compete in EU Member State public procurements. In the European Union there are uniform rules (known as “State aid” rules) on subsidies for all Member States, which are intended to ensure that competition in the internal market is not distorted by government subsidies. To counter (perceived) disadvantages of EU firms when competing with competitors from non-EU countries not subject to the EU “State aid” regime, the EU has adopted the Foreign Subsidies Regulation (FSR), which entered into force in January 2023 and will go into …

Rights Violations As Punishment, Kate Weisburd

GW Law Faculty Publications & Other Works

Is punishment generally exempt from the Constitution? That is, can the deprivation of basic constitutional rights—such as the rights to marry, bear children, worship, consult a lawyer, and protest—be imposed as direct punishment for a crime and in lieu of prison, so long as such intrusions are not “cruel and unusual” under the Eighth Amendment? On one hand, such state intrusion on fundamental rights would seem unconstitutional. On the other hand, such intrusions are often less harsh than the restriction of rights inherent in prison. If a judge can sentence someone to life in prison, how can a judge not …

To Find The Best Future System Of Agency Adjudication We Should Return To The Past, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

Professor Pierce wrote this essay for inclusion in a symposium on the future of agency adjudication:

In 1946, Congress and the Supreme Court unanimously embraced a method of conducting agency adjudications. We abandoned that method gradually through a variety of steps that we have taken in the ensuing years. We should return to the original model for conducting agency adjudications.

In section one, I describe and evaluate the method of agency adjudication that Congress adopted in the Administrative Procedure Act of 1946 after years of study and debate. In section two, I describe and criticize the changes that we have …

Fool Me Once, Shame On You: Promoting Corporate Accountability For The Human Rights Impacts Of Climate Washing, Randall S. Abate

GW Law Faculty Publications & Other Works

Effective climate change governance faces two overarching challenges. The first is mobilizing the political will to regulate climate change with sufficient ambition. Second, when regulatory measures are in place to address climate change, the next challenge is ensuring that governmental and private sector entities are on track to comply with these time-sensitive climate governance commitments. This article addresses the second challenge. It reviews “climate washing” litigation that seeks to hold fossil fuel companies and other private sector entities accountable for misleading the public about their compliance with climate change mandates or goals. The article argues that climate washing tactics threaten …

Take A Chance? The Controversy Over Releasing D.C. Prisoners Under The Second Look Act, Peter H. Meyers

GW Law Faculty Publications & Other Works

This article analyzes prisoner release under the D.C. Second Look Act, including the pros and cons of such release, and the procedures for release under the Act. The article explores the best practices for obtaining release of prisoners who have served long sentences but have been rehabilitated and are no longer dangerous.

Leveraging The Federal Government’S Buying Power To Mitigate Climate Change, Polly Hall, Tim Cooke, Steven L. Schooner

GW Law Faculty Publications & Other Works

As global temperatures continue to rise, this brief article focuses on the evolution of sustainable public procurement (primarily in the United States federal or central government marketplace).

Among other things, the article introduces expanding efforts by the National Contract Management Association (NCMA) and its community of practice (COP) to raise awareness of the procurement profession's and community's role in adapting to and mitigating climate change, support knowledge sharing about existing work in this area, provide resources and training to contracting professionals, and integrate sustainability into contracting professional standards. Ultimately, what procurement officials buy, how they buy, and who they buy …

Transforming Military Justice: 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 …

Regulating History, Sara C. Bronin, Leslie R. Irwin

GW Law Faculty Publications & Other Works

America’s local historic commissions collectively wield tremendous influence over millions of privately-owned parcels of land. By reviewing rehab proposals, blocking demolitions, and mandating property maintenance, these commissions have helped to protect many of America’s most beloved neighborhoods. They fill a vacuum left by federal and state governments, which have declined to offer robust legal protections to private historic sites. Litigation challenging local historic decisions and press vilifying commissions for their alleged elitism, anti-environmental decisions, and general obstruction of progress have put preservation in the contemporary crosshairs. While we align with those who believe that clear-thinking commissions can successfully mediate between …

A “Rhode” Block On The Journey To The American Dream, Jesse Manning

Roger Williams University Law Review

No abstract provided.

Amending The Defense Production Act: Preventing Another Pandemic, Madalyn Mcgunagle

Roger Williams University Law Review

No abstract provided.

State V. Regan, 273 A.3d 116 (R.I. 2022), Rebecca Costello

Roger Williams University Law Review

No abstract provided.

Lacera V. Department Of Children, Youth, And Families, 272 A.3d 1064 (R.I. 2022), Hilary L. Levey Friedman

Roger Williams University Law Review

No abstract provided.

Zab V. R.I. Dep’T Of Corrs., 269 A.3d 741 (R.I. 2022)., Michaela A. Conley

Roger Williams University Law Review

No abstract provided.

In Re Lucas D., 272 A.3d 109 (R.I. 2022), Kat L. Mccorkle

Roger Williams University Law Review

No abstract provided.

In Re Mandy M., 239 A.3d 1152, 1155 (R.I. 2020), Jacklyn Henry

Roger Williams University Law Review

No abstract provided.

Providence Place Group V. State, 266 A.3d 1231 (R.I. 2022), Danielle M. Brackett

Roger Williams University Law Review

No abstract provided.