Law Commons^™

China's Anti-Secession Law: Background, Legal Significance, And Recent Developments, Donald C. Clarke

GW Law Faculty Publications & Other Works

What is the significance of China’s 2005 Anti-Secession Law (ASL) specifically as a legal document? In other words, how if at all is it different for any practical purpose from a policy announcement? Would anything be different if it did not exist at all? What was the point of having the National People’s Congress issue it instead of, for example, the State Council (whose Taiwan Affairs Office in 2022 issued a White Paper)? What was the point of calling it a law, instead of something like “An Announcement to Taiwanese Compatriots,” as the NPC Standing Committee had done in 1979? …

Guardians Of Ethics For The Profession Of Arms: Judge Advocates Assisting Commanders To Choose The Harder Right Over The Easier Wrong, Lisa M. Schenck

GW Law Faculty Publications & Other Works

This article provides an explanation of the unique and critical role of members of the Service Judge Advocate General’s Corps, not only as attorneys providing legal services to commanders, staff, personnel, and family members, but also as Guardians of Ethics for the military, the Profession of Arms. Moreover, military lawyers are key leaders who are responsible to lead or guide others to the right ethical decision. And when Judge Advocates are not present at the table to provide sage, educated, measured, advice—or fail to speak up and address potential ethical issues that arise or they are ignored— military leaders do …

Modern Military Justice: Cases And Materials (4th Ed.) (2024) (West Academic), Lisa M. Schenck

GW Law Faculty Publications & Other Works

This textbook comprehensively covers the modern military justice system of the United States, under the Uniform Code of Military Justice. This text is appropriate for all students, with or without prior military experience. It covers court-martial procedures, substantive criminal law, and nonjudicial punishment under the Uniform Code of Military Justice, in addition to the Military Extraterritorial Jurisdiction Act, which gives federal courts jurisdiction over certain acts committed abroad. Materials from every Service within the Armed Forces show how the military justice system addresses all criminal offenses, ranging from minor infractions to serious offenses, such as the misconduct of soldiers at …

Disability, Race, And Immigration: The Intersectional Impact Of Policing, Tania N. Valdez

GW Law Faculty Publications & Other Works

Law enforcement officers commonly must respond to situations in which a person is experiencing acute symptoms of a mental illness. Yet from the first moment of police involvement, these community members face the possibility of negative outcomes. Consequences include officers' use of excessive force leading to injury or death, criminal arrest and prosecution that results in deprivation of liberty, separation from the community, and the creation of a permanent criminal record that affects other rights.

Although potential violence and criminalization are important reasons to avoid relying on police during mental health events, another key consideration is often ignored in the …

Copyright And The Training Of Human Authors And Generative Machines, Robert Brauneis

GW Law Faculty Publications & Other Works

There are many limitations on copyright of which human authors can and do take advantage as they are learning. However, there is no blanket fair use immunity for use of copyrighted works to educate human authors, even though those authors typically do not go on to create substantially similar works. Human authors typically end up paying, directly or indirectly, for most of the copyrighted works from which they learn. Should it be different when human beings use copyrighted works to train generative AI models? This article concludes that it should not, in spite of two prominent arguments to the contrary. …

Policy Brief: On Remand In Cantero, The Second Circuit Should Uphold New York's Interest-On-Escrow Law And Reject Bank Of America's Preemption Claim, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

In Cantero v. Bank of America, N.A., 144 S. Ct. 1290 (2024), the Supreme Court vacated and remanded a decision of the Second Circuit Court of Appeals. Bank of America argued that the National Bank Act (NBA) preempted New York General Obligation Law (NYGOL) § 5-601, thereby exempting the bank from any duty to comply with the New York statute. The Second Circuit agreed with the bank’s preemption claim.

NYGOL § 5-601 requires national banks and other mortgage lenders operating in New York to pay at least 2% annual interest on funds deposited by borrowers in mortgage escrow accounts. …

Compensation Under The Microscope: Michigan, Jeffrey Gutman

GW Law Faculty Publications & Other Works

The number of exonerees denied compensation in Michigan – 25 – is the third highest in the country, behind New York and California. As of this writing, there are 107 Michigan exonerees listed in the National Registry of Exonerations who have filed for state compensation. By comparison, of the 88 exonerees who filed in Ohio, only six have been denied. The purpose of this article is to analyze why the number of denials in Michigan is as high as it is. Part of the answer lies in a particularity of the Michigan compensation statute. The Michigan legislature is, however, considering …

Plenary Power: Teaching The Immigration Law Of The Territories, Cori Alonso-Yoder

GW Law Faculty Publications & Other Works

Immigration law dominates national headlines and policy debates while immigrant communities struggle to secure legal representation. Law students are increasingly aware of these issues, often bringing lived experiences of the immigration system into the classroom. As immigration law professors seek to engage these students with doctrinal and clinical coursework, they often struggle to incorporate policy priorities and executive actions that shift with the political winds. In this tumult, many immigration law professors fail to realize that there is an entire body of U.S. immigration law they are not teaching-the immigration law of the U.S. territories. Indeed, many professors may not …

The Implications Of Section 230 For Black Communities, Spencer A. Overton, Catherine Powell

GW Law Faculty Publications & Other Works

Section 230 of the Communications Decency Act generally immunizes online platforms such as Facebook, YouTube, Amazon, and Uber from liability for third-party user content (e.g., posts, comments, videos) and for moderation of that content. This article addresses an important issue overlooked by both defenders and critics of Section 230: the implications of the law and proposed reforms for Black communities. By relieving tech platforms of most legal liability for third-party content, Section 230 helps facilitate Black social activism, entrepreneurship, and artistic creativity. Further, Section 230 also relieves platforms of most legal liability for content moderation, which boosts platforms’ freedom to …

The Overton Window And Privacy Enforcement, Alicia Solow-Niederman

GW Law Faculty Publications & Other Works

On paper, the Federal Trade Commission’s consumer protection authority seems straightforward: the agency is empowered to investigate and prevent unfair or deceptive acts or practices. This flexible and capacious authority, coupled with the agency’s jurisdiction over the entire economy, has allowed the FTC to respond to privacy challenges both online and offline. The contemporary question is whether the FTC can draw on this same authority to curtail the data-driven harms of commercial surveillance or emerging technologies like artificial intelligence.

This Essay contends that the legal answer is yes and argues that the key determinants of whether an agency like the …

State Sovereign Immunity And The New Purposivism, Anthony J. Bellia, Bradford R. Clark

GW Law Faculty Publications & Other Works

Since the Constitution was first proposed, courts and commentators have debated the extent to which it alienated the States’ preexisting sovereign immunity from suit by individuals. During the ratification period, these debates focused on the language of the citizen-state diversity provisions of Article III. After the Supreme Court read these provisions to abrogate state sovereign immunity in Chisholm v. Georgia, Congress and the States adopted the Eleventh Amendment to prohibit this construction. The Court subsequently ruled that States enjoy sovereign immunity independent of the Eleventh Amendment, which neither conferred nor diminished it. In the late twentieth-century, Congress began enacting statutes …

The Cost Of Justice At The Dawn Of Ai, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

Justice isn’t free, but it might soon get much less expensive. Policies concerning issues such as arbitration, class actions, and plea bargaining depend on how much legal services cost, but the legal literature has generally ignored past and future cost trends and their implications. The result is a legal system that may change dramatically because of economic forces without active consideration of potential responses. Part of the reason for the lack of attention is that changes in legal productivity can be difficult to measure or forecast. Some commentators have concluded that the legal sector has become more expensive in recent …

Assessing Percipient.Ai After Loper Bright Enterprises – Potentially A New Trajectory In Government Procurement Law, Christopher R. Yukins

GW Law Faculty Publications & Other Works

In early June 2024 the U.S. Court of Appeals for the Federal Circuit issued its decision in Percipient.ai, Inc. v. United States, 104 F.4th 839 (Fed. Cir. 2024). The Percipient decision was noteworthy primarily because it seemed at odds with established precedents regarding standing to bring a bid protest: the case recognized standing in a non-bidder that was not even a potential prime contractor. But a few weeks later the Supreme Court issued its landmark decision in Loper Bright Enterprises v. Raimondo, No. 22-451, in which the Court departed from a forty-year practice of judicial deference under Chevron …

Compensation Under The Microscope: What Has Gone Wrong With Oregon's Wrongful Compensation Statute?, Jeffrey Gutman

GW Law Faculty Publications & Other Works

Oregon’s legislature passed one of the country’s most recent wrongful conviction compensation statutes in 2022. Not surprisingly, it borrows statutory structure and language from existing statutes that follow a litigation model in which a plaintiff files a claim for compensation in court and a judge (or jury) decides the case. In the nearly two and half years since passage, only three Oregon exonerees, of 27 listed on the National Registry of Exonerations who are potentially eligible, have received compensation, and two of those were compensated by settlement before even filing a complaint. The storyline of the Oregon statute is one …

Are "Book Bans" Unconstitutional? Reflections On Public School Libraries And The Limits Of Law, Catherine J. Ross

GW Law Faculty Publications & Other Works

Since 2021, the number of demands that public school libraries remove materials from their shelves based on content has accelerated almost too quickly to track. Book removal incidents are more prevalent today than at any time since data became available, doubling between 2021 and 2022. Such “book bans” (as opponents characterize them) or “targeted book removals” (as the courts call them) arise in the context of intense political and cultural divisions and, in turn, exacerbate those conflicts. Indeed, national organizations as well as politicians at every level have played a role in the contemporary attack on library materials, which disproportionately …

Constitutional Federalism And The Nature Of The Union, Anthony J. Bellia Jr., Bradford R. Clark

GW Law Faculty Publications & Other Works

Federalism is an essential feature of the Constitution’s design and structure, but the Constitution does not spell out every respective authority of the federal government and the States in precise detail. This omission has led some observers to embrace broad—if not unlimited—federal power and reject certain longstanding federalism doctrines—such as state sovereign immunity, the anti-commandeering doctrine, and the equal sovereignty of the States. The objection to such doctrines is that the Constitution does not affirmatively grant States these sovereign rights and powers. This charge overlooks long forgotten background context essential to faithful interpretation of the Constitution. The former British Colonies …

On Remand In Cantero, The Second Circuit Should Reject Bank Of America's Preemption Claim And Hold That New York's Interest-On-Escrow Law Applies To National Banks, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

In Cantero v. Bank of America, N.A., 602 U.S. 205 (2024), the Supreme Court vacated and remanded a decision of the Second Circuit Court of Appeals. Bank of America argued that the National Bank Act preempts New York General Obligation Law (NYGOL) § 5-601, thereby exempting the bank from any duty to comply with § 5-601. The Second Circuit agreed with Bank of America’s preemption claim.

NYGOL § 5-601 requires national banks and other mortgage lenders operating in New York to pay at least 2% annual interest on funds deposited by borrowers in mortgage escrow accounts. The Second Circuit held …

Putting Lipstick On A Pig: Biogas, Methane Digesters, And The Greenwashing Playbook, Randall S. Abate

GW Law Faculty Publications & Other Works

Industrial animal agriculture pitches biogas and methane digesters as solutions to the outsized methane footprint of concentrated animal feeding operations (CAFOs), yet these efforts merely seek to convey to the public that CAFOs’ operations are environmentally responsible. In reality, quite the opposite is true because biogas and methane digesters more deeply entrench these facilities into the status quo of unsustainable production and disposal methods at CAFOs. This article first describes industrial animal agriculture’s impacts on climate change, with a focus on methane emissions. It then addresses biogas and methane digesters as ineffective solutions to the methane emissions from CAFOs. Next, …

A Financial Case For A Medical-Legal Partnership: Reducing Lengths Of Stay For Inpatient Care, Barak D. Richman, Breanna Barrett, Riya Mohan, Devdutta Sangvai

GW Law Faculty Publications & Other Works

While Medical-Legal Partnerships (MLPs) have improved the health and well-being of the people they serve, most healthcare institutions will only invest in an MLP if they are convinced that doing so will improve its balance sheet. This article offers a detailed estimation of the cost savings that an MLP targeted toward the most acute legal needs would accrue to an academic medical center (AMC) in North Carolina.

Hiding In Plain Sight: Erisa's Cure For The $1.4 Trillion Health Benefits Market, Amy Monahan, Barak D. Richman

GW Law Faculty Publications & Other Works

Since 1974, the Employee Retirement Income Security Act (ERISA) has imposed fiduciary duties on those who manage and administer employee benefit plans. But for the largest employee benefits – retirement benefits and health plans, which together constitute 13% of total national compensation – ERISA’s fiduciary duties have played very different roles. For retirement benefits, ERISA scrutinizes plan managers and requires employers to select plan investments with care. For health plans, there is a regulatory vacuum, as ERISA imposes few federal requirements yet preempts state efforts to ensure quality plan offerings. In short, ERISA has advanced protections for retirement plans but …

The Objectives Of Medicaid: A Statutory And Scholarly Examination Of America's Most Important Health Program, Barak D. Richman, Laura Richman

GW Law Faculty Publications & Other Works

When Kentucky and Arkansas instituted work requirements in 2018 as a condition to receiving Medicaid benefits, residents from both states sued the Trump Administration to block the program, arguing that the requirements were contrary to the Medicaid statute. In Gresham v. Azar, the DC Circuit agreed, holding that "the objective of Medicaid was to furnish medical assistance." Even though the Secretary of Health and Human Services determined that the work requirements were "likely to assist in improving health outcomes," the court concluded that "better health outcomes as [an] objective of Medicaid… lacks textual support. Indeed, the statute makes no mention …

“I Was But The Learner, Now I Am The Master”: Using The Protégé Effect To Accelerate Learning Outcomes, Anita M. Singh

GW Law Faculty Publications & Other Works

Like most legal writing professors, I frequently use peer editing, collaborative editing, and rewriting in my classes and have done so since I began teaching in 2009. Last year, looking to increase student self-direction, promote ownership and accountability, and drive students to engage more meaningfully with my feedback, I added something slightly different to the mix. By combining “learning by teaching” and self-reflection, I stumbled upon an exercise that students across-the-board called “[t]he most important thing [we did] for my writing” and “the best reviewing exercise we [did] all year.” It had the added bonus of supporting students’ professional identity …

Coastal Migration With Dignity: Safeguards For Vulnerable Communities, Randall S. Abate, Aashini Choksi

GW Law Faculty Publications & Other Works

This Comment proposes to apply social justice-oriented safeguards to vulnerable communities in the climate migration context, focusing on recommendations to diminish the vulnerability of communities in two climate migration case studies in the United States. Part I describes the troubling realities of climate gentrification in Florida as well as forced displacement from coastal areas for native communities in Alaska. Part II addresses the existing federal and state legal frameworks in these contexts, and how gaps in each framework exacerbate the vulnerability of these overburdened communities. Part III proposes law reforms to address these concerns. It first recommends adjustments to the …

Enhancing Protection Of “Climate Refugees” In Destination Hubs: A Comparative Analysis Of Legal Mechanisms And Governance Challenges In The United States And India, Randall S. Abate, Chhaya Bhardwaj

GW Law Faculty Publications & Other Works

The plight of climate refugees is a global crisis that requires global cooperation and regional responses. The United States and India are important regional destination countries for climate refugees. “Climate refugees” are not recognized as a category of people entitled to protection in either country; however, legal mechanisms in both countries can be applied to cross-border displacement due to climate change. Part I of the article introduces the challenge of defining the term “climate refugees.” Part II addresses legal mechanisms in India that can be used to protect people displaced across the border as refugees or protected persons, and Part …

Sex, Lies, & Videotapes: Denial Of Wrongs Against Women, Laurie S. Kohn

GW Law Faculty Publications & Other Works

“He totally denies it . . . he says it didn’t happen.” With that, former President Donald Trump dismissed all allegations against then-Senate candidate Judge Roy Moore for sexual misconduct with minors. While in office and since then, Trump has repeatedly displayed the power of denial in the face of allegations of wrongdoing toward women. Trump is largely right that denial works. He is not alone in considering an accused’s denial as the end of the story, even in the face of strong contradictory evidence. In doing so, Trump merely echoes a dominant attitude in the United States. Our culture …

How To Procure Ai Systems That Respect Rights, Jessica Tillipman

GW Law Faculty Publications & Other Works

This essay responds to a recent article calling for human rights to be treated as a foundational principle in government procurement, with a focus on AI systems. While supporting the spirit of the proposal, the essay cautions that the suggested framework risks overburdening already strained contracting officers and could further erode the federal supplier base by deterring small and emerging firms. The essay argues that durable reform depends not on additional mandates, but on sustained engagement with procurement professionals and a practical understanding of the procurement system’s operational constraints.

Testimony Of Jessica Tillipman Associate Dean For Government Procurement Law Studies, The George Washington University Law School, Before The Senate Committee On Homeland Security & Governmental Affairs Safeguarding The Homeland: Examining Conflicts Of Interest In Federal Contracting To Protect America’S Future, Jessica Tillipman

GW Law Faculty Publications & Other Works

This testimony, presented before the U.S. Senate Committee on Homeland Security & Governmental Affairs, examines longstanding deficiencies in the regulatory framework governing organizational conflicts of interest (OCIs) in federal contracting. While acknowledging recent legislative progress, including the enactment of the Preventing Organizational Conflicts of Interest in Federal Acquisition Act, the testimony highlights how current Federal Acquisition Regulation (FAR) provisions are outdated, inconsistently applied, and ill-suited to modern procurement practices—particularly in advisory and consulting services with national security implications. The testimony argues for a balanced and modernized approach to OCI reform that enhances clarity, strengthens compliance and disclosure obligations, and provides …

Grappling With Dei Issues Through An Environmental Negotiation Case Study, Robin L. Juni

GW Law Faculty Publications & Other Works

This article will describe a teaching module that grapples with diversity, equity, and inclusion (DEI) issues in the context of an environmental negotiation case study, seeking to provide guidance useful to professors in both doctrinal and skills courses. The teaching tools offered could readily be adapted to case studies other than the hazardous waste permitting scenario described here, and could be applied in an environmental law or administrative law course, as well as in a negotiation or other skills course.

This teaching module is structured in four parts: first, assigning advance readings and handouts; second, utilizing case studies that require …

Causing Or Risking Climate Catastrophe, Donald Braman, Aaron Regunberg, David Arkush

GW Law Faculty Publications & Other Works

This Essay explores the potential criminal liability of major fossil fuel companies (FFCs) under state laws prohibiting reckless conduct that causes or risks catastrophe. Using Pennsylvania's criminal code § 3302 as a case study, we argue that FFCs' decades-long pattern of deceptive conduct regarding climate change—continuing to aggressively market and sell fossil fuels while actively concealing and denying the catastrophic risks their own scientists had identified—constitutes criminal behavior under these statutes. We demonstrate how FFCs' actions satisfy the key elements of these crimes: they created risks of catastrophe through their emissions and disinformation campaigns, acted recklessly in doing so given …

Foreign Country Judgments And Full Faith And Credit, William S. Dodge

GW Law Faculty Publications & Other Works

Despite the common understanding that the Full Faith and Credit Clause and Act do not apply to foreign judgments, these provisions do sometimes intrude on the recognition and enforcement of such judgments. This essay discusses two such situations. The first is when a court in one U.S. state recognizes a foreign judgment. The question then arises whether the U.S. judgment recognizing the foreign judgment is entitled to full faith and credit in other U.S. states. The second situation is when a foreign judgment and a domestic judgment conflict. When domestic judgments conflict, the usual rule in the United States is …