Law Commons^™

Cruel And Unusual Punishments And The Constitutional Status Of The Idea Of Progress, R. George Wright

FIU Law Review

To this point, we have developed some idea of what progress might have meant to the constitutional Framers, ratifiers, and later judges. We need not attempt the fruitless task of doing any precise head count of the variations of the concrete meaning, perceived likelihood, or value of progress among those parties. Doubtless some persons were more optimistic than others.178 But we need only assume that enough constitutional Framers, ratifiers, and judicial interpreters sufficiently shared any mainstream understanding of progress. Any such constitutional legitimacy of the idea, or the multiple ideas, of progress licenses the language of progress embraced in Trop.

Race, Reparative Justice, And Climate Change-Related Migration, Monica Visalam Iyer

FIU Law Review

The question of how to appropriately respond to migration linked to climate change is increasingly being debated in academia, in government and policy circles, and, crucially, in international legal and climate policy forums. These debates often center on data and on understanding the true numbers of people who might migrate in the context of climate change, and how much of this migration can accurately be linked to climate change, or on the security and logistical concerns associated with responding to this “challenge,” or on the appropriate legal box into which people migrating in this context can be shoved. Too often, …

When Convenience Compromises Rights: How The European Union And Washington State Confront Facial Recognition Risks, Debora Rodriguez Lugo

FIU Law Review

As facial recognition technology (FRT) becomes increasingly embedded in policing, concerns and controversies over the lack of consent, misidentification, and mass surveillance grow. This Comment compares how the European Union (EU) and Washington State (Washington) regulate law enforcement’s use of FRT to mitigate risks to individual rights. The EU governs FRT use through a robust legal framework, including the General Data Protection Regulation (GDPR), the Law Enforcement Directive (LED), and the Artificial Intelligence Act (AI Act), which offer protections against these risks. In contrast, Washington’s pioneering statute, Wash. Rev. Code section 43.386, promotes transparency and limits the use of FRT. …

Table Of Contents, Fiu Law Review

FIU Law Review

No abstract provided.

Editorial Board, Fiu Law Review

FIU Law Review

No abstract provided.

Publisher Info, Fiu Law Review

FIU Law Review

No abstract provided.

Introduction, Jorge L. Esquirol

FIU Law Review

No abstract provided.

The Protection Of Geographical Indications Under Comparative Lens: Whether Law Artificially Creates Scarcity Of Goods, Domenico Di Micco

FIU Law Review

The economic principles of supply and demand dictate that market prices are contingent on the conditions under which supply and demand converge. Within this theoretical framework, the concepts of scarcity and abundance assume paramount significance. When goods are scarce, prices tend to escalate, while in cases of abundant supply, prices tend to decline. But what factors determine scarcity and abundance? In many cases, scarcity is inherent to the nature of the commodity (for example, diamonds are rarer than common stones). In other cases, such as geographical indications, scarcity is constructed through the legal denomination associated with the commodity, thereby creating …

Geographical Indications For Agricultural Products: Inconsistencies And Conflicts In Europe And The Global Arena, Lorenzo Bairati

FIU Law Review

Food systems are regulated by a global and hybrid legal framework. In fact, while supranational and international sources play an increasingly important role, private regulators are also becoming more and more involved alongside traditional public policy-makers. Within this context, Geographical Indications (GIs) serve as the main tool in the European Union and beyond to protect quality agri-food products.

This Article aims to explore these instruments in depth in order to analyze several critical aspects from the perspective of global governance, i.e., the networked, hybrid, and diffuse legal space that develops through the participation, negotiation, and strategic interaction between public and …

Comparing Access To Land: Drawing Parallels In Diverse Jurisdictions, Helena Alviar Garcia, Anamaría Muñoz Rincón

FIU Law Review

By exploring the intersection between transitional justice initiatives and transformative constitutionalism, this article proposes that fruitful comparative study covering similarities and differences between diverse definitions of property—challenges and possibilities of accessing it and the main characteristics of the disputes over it—in four jurisdictions can be advanced. A close examination of the classic liberal paradigm framing the transitional process reveals the ways in which a progressive and justice-driven understanding of property falls short in all the countries considered. To examine this, we look at how property clauses, substantively and procedurally, are construed in transformative constitutions sitting at the heart of the …

Contracting For Innovation In The Global South: Empirical Evidence From Brazil, Pablo Marcello Baquero

FIU Law Review

As innovation cycles accelerate, companies seeking to remain at the forefront of the knowledge economy increasingly partner with sophisticated firms to co-create innovation. These collaborations involving pervasive uncertainty are structured through hybrid contractual arrangements that combine features of market-based independence with those of the close coordination typical of the firm. To date, contracting for innovation has been examined primarily in the context of the Global North. In the United States, the literature has focused on the governance mechanisms that parties employ to continuously define their obligations and mitigate opportunism amid profound uncertainty. In Europe, scholarship on contractual networks or organizational …

The Italian Rice Production: Between Tradition And Globalization, Bianca Gardella Tedeschi

FIU Law Review

The Article examines the Italian rice sector as a case study in how law mediates the tensions between territorial agricultural traditions and the pressures of globalization. Focusing on the rice-producing districts of Piedmont and Lombardy, the Article argues that the resilience of Italian rice production cannot be explained solely by agronomic or economic factors. Rather, it depends on a dense legal and institutional framework that structures water governance, quality control, market organization, and contractual relations across the supply chain.

The Article develops three principal claims. First, it shows that the competitiveness of Italian rice production rests on an integrated model …

The New European Union Regulation On Geographical Indications For Craft And Industrial Products And The Protection Of "Lace Of Cantù": A Work In Progress, Barbara Pozzo

FIU Law Review

Regulation (EU) 2023/2411 of the European Parliament and of the Council of 18 October 2023 has introduced the protection of geographical indications for craft and industrial products. The contribution aims at investigating how the Regulation may have implications in the fashion world. In particular, it will focus on a particular case study undertaken in Northern Italy, concerning the possibility of protecting the “Lace of Cantù” through a geographical indications for craft.

The Making Of Egyptian Cotton: An Alternative Narrative Between Empire And Global Capital, Dina I. Waked

FIU Law Review

Egyptian cotton has become a celebrated brand. Referring to cotton as “Egyptian” signals a certain quality, luxury, and durability. Egyptian cotton has, thus, become its own trademark, a signifier of value, and a symbol of national heritage. This image is carefully curated. It is now protected under a licensing scheme of branding and marketing that assures that fraudulently claimed “Egyptian cotton” does not benefit from the added value this geographic location ascribes to it. The Egyptian Cotton Association was thus created 2005 to license and accredit the brand. Part of the curation of the brand image is a historical narrative …

Virtual Harm, Real Consequences: Constitutional Justifications For Criminalizing Ai-Generated Child Pornography, Adam Abdin

FIU Law Review

Advances in artificial intelligence (AI) have enabled the creation of hyper-realistic child sexual abuse images without any real child involved. These AI-generated depictions pose a unique challenge: they replicate the most pernicious form of pornography—child pornography—while potentially being claimed as “speech” immune from regulation. This paper argues that it is both constitutionally permissible and morally imperative to criminalize AI-generated child pornography. This article presents two doctrinal pathways to justify a ban. First, such content can be treated as unprotected speech under existing First Amendment exceptions. Courts have long held that child pornography and obscenity lie outside First Amendment protection, and …

Small-World Simulations: A New Method To Test The Effect Of Legal Rules, Johannes Kruse

Coase-Sandor Institute for Law & Economics Research Paper Series

Small-world simulation exposes an artificial society to a legal rule and observes what its members do. The agents are driven by language models: their conduct is not stipulated in equations but reasoned in their own words. The architecture can be turned on any legal regime; personalized speed limits are the demonstration, chosen because rational-choice and behavioral predictions there conflict. Validated against documented driving patterns, the simulation generates behavior no one wrote into it. Because language models are trained on what people say rather than do, the method estimates orderings, not levels: a benchmark, not a substitute for evidence.

Buying Blind: Corruption Risk And The Erosion Of Oversight In Federal Ai Procurement, Jessica Tillipman

GW Law Faculty Publications & Other Works

The United States is accelerating toward a corruption crisis of its own making. In its race to rapidly acquire artificial intelligence (AI), current policy risks undermining longstanding procurement integrity safeguards. This article examines how AI increases traditional corruption risks and introduces new vulnerabilities that current oversight mechanisms are ill-equipped to address.

Recent federal AI policies have accelerated adoption while simultaneously narrowing regulatory oversight, effectively leaving “regulation by contract” as the primary—and profoundly inadequate—mechanism for embedding safeguards. The consequence of these policies is that the government is “buying blind,” acquiring AI technologies without adequate transparency, audit rights, or testing requirements. These …

Ethnonationalism By Algorithm, Spencer A. Overton

GW Law Faculty Publications & Other Works

In the United States, artificial intelligence (“AI”) policy has become a critical arena for ethnonationalism—an ideology that defines national belonging through shared ancestry, culture, and language. Amid rapid demographic change and cultural anxiety, the second Trump Administration has harnessed federal AI governance to advance its broader agenda of dismantling diversity—most notably through Executive Order 14,179, “Removing Barriers to American Leadership in Artificial Intelligence” and related legal directives. By eliminating safeguards against algorithmic bias and recasting equity as an ideological threat to innovation, the policies facilitate exclusion under the guise of neutrality. These moves are not merely deregulatory; they represent a …

The Federalism Canons As Ordinary Interpretation, Anthony J. Bellia Jr., Bradford R. Clark

GW Law Faculty Publications & Other Works

Scholars remain generally skeptical of substantive canons of statutory interpretation even as courts continue to employ such canons in important cases. Unlike semantic canons, which help judges discern the best meaning of statutory text in context, substantive canons provide tiebreakers when the text is unclear or require special clarity in order for the text to perform certain functions. Among the substantive canons, the so-called “federalism canons” have been singled out for special scrutiny. The federalism canons are a family of canons that require courts to avoid interpreting an act of Congress to divest states of certain sovereign rights or powers—including …

Governing Ai Without Agencies: Self-Regulatory Organizations And The Federal Backstop, Aram A. Gavoor

GW Law Faculty Publications & Other Works

Artificial intelligence is accelerating American innovation and strategic advantage. The governance task is to provide predictable compliance baselines that support scale and competitiveness while remaining workable under executive branch policy, statutory baselines, and the rules that now govern the administrative state. Congress remains slow and factional, and agencies face rising procedural and remedial constraints. Recent Supreme Court doctrine has reduced the administrative state’s interpretive and enforcement leverage. Regulated entities can challenge agency rules when those rules newly impose concrete harm, litigate statutory meaning without Chevron-style mandatory deference to agency statutory interpretations with limited exceptions, and invoke strengthened procedural safeguards in …

Feature Comment: Governance As A “Blocker”: How The Pentagon’S New Ai Strategy Trades Oversight For Speed, Jessica Tillipman

GW Law Faculty Publications & Other Works

The Department of Defense's January 2026 AI Strategy memorandum presents governance and speed as a zero-sum tradeoff, labeling core oversight mechanisms such as ATOs, test and evaluation, and contracting processes as "blockers" to be waived through a newly established Barrier Removal Board. By doing so, the memo converts governance from a baseline into a negotiable exception. It also redefines "Responsible AI" in ways that depart from the Department's prior lifecycle-assurance framework, mandates "any lawful use" contract language that shifts risk management responsibility to the government, and elevates undefined criteria like "model objectivity" to primary procurement standards, without providing contracting officers …

Deploying The “Trade Bazooka”: How The Anti-Coercion Instrument Reshapes Eu Public Procurement, Amanda Lythgoe, Christopher R. Yukins

GW Law Faculty Publications & Other Works

As trade disputes continue to batter the relationship between the U.S. and its partners in the European Union, a new countermeasure by the EU—the Anti-Coercion Instrument (ACI)—has emerged as a serious threat to trade flows, including in public procurement. Although formally framed as a trade-defense mechanism, the ACI is a legal instrument capable of addressing a broad range of economic coercion. Notably, although the ACI is presented as a means of deterrence and de-escalation, the ACI authorizes countermeasures that extend well beyond tariffs, and can severely restrict foreign firms’ access to EU public procurement markets. This article provides an historical …

Brief Of Amicus Curiae Professor Steven L. Schooner In Support Of Petitioners' Petition For Certiorari In King V. United States (U.S. Supreme Court), Aram A. Gavoor, Eric Frank, Giovanna Milano, Matt Novotny, Tegan Oliver, Kaci Waguespack, Steven L. Schooner

GW Law Faculty Publications & Other Works

This is an amicus brief in support of a U.S. Supreme Court petition for certiorari in King v. United States (No. 25-856), in which GW Law School's GW Law’s Administrative Law, Issues, and Appeals Clinic represented government contracts expert, GW Law Professor Steven L. Schooner). Petitioners—retired UPS employees William King, Stephen Dardzinski, and the Estate of Anthony Gugliuzza (on behalf of a class of retirees and pension beneficiaries)—challenge the Federal Circuit’s novel “underlying assets” test (created in reviewing a matter initially decided in the U.S. Court of Federal Claims), which withholds per se Takings Clause protection for vested rights to …

Policy Brief: The Occ's Unlawful Proposal To Preempt State Interest-On-Escrow Laws Reveals That The Agency's Ultimate Goal Is To Revive Its Illegal De Facto Field Preemption Regime For National Banks, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

In December 2025, the Office of the Comptroller of the Currency (“OCC”) issued a proposal to preempt all state laws that require national banks and federal savings associations to pay interest on borrowers’ funds held in mortgage escrow accounts. The OCC’s proposal is unlawful and must be rescinded. Under 12 U.S.C. § 25b and the Supreme Court’s decisions in Cuomo v. Clearing House and Cantero v. Bank of America, the OCC does not have authority to preempt state interest-on-escrow (IOE) laws.

The OCC’s proposal for a categorical, across-the-board preemption of state IOE laws violates three requirements set forth in 12 …

The Unacceptable Risks Of Uninsured Nonbank Stablecoins: Written Testimony Presented To The Uk House Of Lords' Financial Services Regulation Committee, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

This written testimony was submitted to the Financial Services Regulation Committee of the United Kingdom House of Lords, in response to that Committee’s “Call for evidence” on the “Growth and proposed regulation of stablecoins in the UK,” https://committees.parliament.uk/call-for-evidence/3845/. This testimony provides an overview of the global stablecoin market and the current leading uses of stablecoins. The testimony also describes the unacceptable dangers that uninsured nonbank stablecoins pose to financial stability, economic welfare, consumer protection, monetary policy, regulatory compliance, and law enforcement. The testimony presents the following policy recommendations:

(1) Stablecoins should be regulated in the same way as bank deposits. …

Brief For International Law Scholars As Amici Curiae In Support Of Respondents, Cisco Systems, Inc. V. Doe I, William S. Dodge

GW Law Faculty Publications & Other Works

This amicus brief was filed with the U.S. Supreme Court on behalf of international law scholars in Cisco Systems, Inc. v. Doe I. The brief addresses whether claims for aiding and abetting violations of international human rights may be brought under the Alien Tort Statute. Part I argues that, under Sosa v. Alvarez-Machain (2004), whether aiding and abetting claims are actionable is determined by customary international law rather than U.S. domestic law. Part II argues that customary international law’s prohibition against aiding and abetting human rights violations meets the Sosa standard. Drawing on instruments establishing the Nuremberg tribunals, the International …

Chapter 2: Do We Still Believe In Process? Democracy And The Fundamental Value Of Dialog Across Difference, Paul S. Berman

GW Law Faculty Publications & Other Works

This essay surveys a few of the many ways to understand what democracy actually is and how to evaluate when it exists and when it is lost. Ultimately, I argue for a pluralist vision that emphasizes both democracy and law's potential ability to bring multiple communities and differing worldviews into dialog with each other. But no conception of democracy can survive unless people are willing to embrace the idea that a fair process can lead to an undesired outcome and that, therefore, even those who lose in a process can have sufficient faith in that process to abide by and …

Policy Brief: The Occ Has Violated Four Federal Statutes By Allowing National Trust Banks To Engage In Crypto-Related Nonfiduciary Activities, Including The Issuance Of Stablecoins, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

The Office of the Comptroller of the Currency (“OCC”) has recently approved charters for nine limited-purpose national trust banks controlled by crypto firms (hereinafter “NTB charter approvals”). The OCC’s NTB charter approvals permit those national trust banks to engage in a wide range of nonfiduciary crypto-related activities. The OCC’s NTB charter approvals violate four federal statutes and must be rescinded. Under 12 U.S.C. §§ 27(a) and 92a, national trust banks are authorized to exercise only fiduciary powers and to act solely in federally-recognized fiduciary capacities. Sections 27(a) and 92a forbid the OCC from allowing national trust banks to engage in …

Taking Legal Pluralism Seriously: Federalism, Diversity Jurisdiction, And The Erie Doctrine, Paul S. Berman, Emma Bjeldanes

GW Law Faculty Publications & Other Works

The U.S. Supreme Court’s watershed decision in Erie Railroad Co. v. Tompkins is sometimes read to require federal judges hearing claims based on federal diversity jurisdiction to apply state law, essentially as if the case were being decided in a state court. The doctrine therefore appears to create a categorical rule disempowering federal courts from ever departing from state law, despite the Constitution’s grant of federal jurisdiction. However, as the Court’s 2026 Erie case, Berk v. Choy, makes clear, sometimes the Erie analysis is used to empower federal courts to override clear state policy choices embodied in state law simply …

Erie And The Constitution's Constraints On General Law, Anthony J. Bellia Jr., Bradford R. Clark

GW Law Faculty Publications & Other Works

The Constitution of 1787 was the instrument by which the people of the States made a partial and conditional transfer of sovereign authority to a new federal government. To preserve the States’ residual sovereignty, the Constitution established a system of conditional federal supremacy. Specifically, it made the federal government’s ability to displace of state law contingent on compliance with specific structural and procedural safeguards. The Supremacy Clause identifies only three sources of “the supreme Law of the Land”—the Constitution, laws enacted pursuant to it, and treaties made under its authority. For each of these sources of law, the Constitution specifies …