Law Commons^™

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 The OCC’s proposal is unlawful and must be rescinded.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 …

The Evolving Procurement Fraud Landscape: Emerging Risks For Government Contractors, Jessica Tillipman, Sarah Needham

GW Law Faculty Publications & Other Works

This Briefing Paper examines the evolving procurement fraud enforcement landscape and identifies emerging risk areas that government contractors should monitor. While procurement fraud has long been an enforcement priority across administrations, the current Department of Justice has aggressively expanded its use of the False Claims Act (FCA) and related authorities, embedding fraud enforcement into the contractor compliance infrastructure through new task forces, mandatory contract clauses, Federal Acquisition Regulation deviations, and disclosure obligations aligned with current policy priorities including cybersecurity, anti-discrimination, and trade compliance.

The Paper begins by mapping the federal fraud enforcement taxonomy, distinguishing among criminal fraud provisions under Title …

Misinformation In Parental Alienation Discourse Can Mislead Courts And Endanger Children, Joan S. Meier

GW Law Faculty Publications & Other Works

Common social science assertions by parental alienation proponents – in expert opinions, judicial trainings and scholarship – can persuade judges that parental alienation is both so real and so destructive that it requires the draconian remedies of removal of children from a loving, physically safe parent and/or forcing them into contact with a parent they fear. These assertions are typically stated as though they are research-based or well-established. Review of cited or other relevant research, however, shows that these assertions are misinformation, unsupported by and/or contrary to established research. This article explores two such claims: first, that children’s fear or …

Brief Of Amici Curiae Professor Steven L. Schooner In Support Of Plaintiffs-Appellees And Affirmance In Epa Et Al. V Green & Healthy Homes Initiative, Inc. Et Al., (U.S. Fourth Circuit, 25-1808), May 19, 2026., Steven L. Schooner, David Livshiz, Nathaniel Castellano, Jayna Rust, Catherine Katz, Miguel Serrano

GW Law Faculty Publications & Other Works

This is an amicus brief in support of affirmance in EPA et al. v Green & Healthy Homes Initiative, Inc. et al., (D.C. Md. 1:25-cv-01096).  Amicus is interested in ensuring that contractors, grantees, and others who do business with the Government and/or participate in Government funded programs are treated fairly when pursuing their rights and remedies and also ensuring that public institutions (particularly the courts) appreciate and account for the many ways that Congressional mandates, public contracts, grants, cooperative agreements, and other funding mechanisms impact  the public's quality of life.

The brief asserts that the Government errs and does a …

Clickwrap Accountability, Alicia Solow-Niederman

GW Law Faculty Publications & Other Works

Picture a public-facing generative AI chatbot on a government website that can answer questions about benefits eligibility.  Systems like these expose a sociotechnical-legal divide: they route around the standard due process framework, because there has been no formal government determination, yet they induce reliance from users, above and beyond past rounds of automated legal guidance.  Moreover, if there is an error, current doctrine on government errors and equitable estoppel makes relief unlikely.

This Essay focuses on government deployment of public-facing generative AI chatbots and critically assesses the front-end power dynamics that determine who is filtered out of government programs before …

Brief Amicus Curiae Of Administrative And Constitutional Law Professors In Support Of Petitioners, Alan B. Morrison, Robert L. Glicksman, Richard J. Pierce Jr, Peter Strauss, Jeffrey Lubbers

GW Law Faculty Publications & Other Works

This amicus brief was filed in DOL v. Sun Valley Orchards by Professors Alan Morrison, Rob Glicksman, Richard Pierce, Peter Strauss and Jeffrey Lubbers. Amici argue that the Supreme Court should reverse the Third Circuit’s decision that DOL lacks the power to adjudicate disputes involving the safety and adequacy of the housing, food, and transportation provided by employers to non-citizen temporary agricultural workers. The Third Circuit’s holding was based on its belief that the constitution confers the power to adjudicate such disputes exclusively on Article III courts.

Amici argue that the dispute at issue falls squarely within the scope of …

Two Heads Are Better Than One: Integrating International Law And Global Public Health Approaches To Firearm Violence To Promote Public Safety And Human Rights, Arturo J. Carrillo, Jonathan E. Lowy

GW Law Faculty Publications & Other Works

In his Advisory of June 25th, 2024, the U.S. Surgeon General, Vivek H. Murthy, declared firearm violence a public health crisis and presented a damning picture of the widespread deaths, injuries and trauma caused by gun violence in the United States. A critical feature of the firearm violence crisis in the United States that the Surgeon General did not expressly address in his report–or even mention–is the role of the manufacturers, distributors, and dealers of firearms, collectively referred to as “the gun industry.” It is an open secret that the U.S.-based firearm industry engages in manufacturing, marketing, distribution and sale …

The Future Of Governance, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

In this contribution to a symposium, Professor Pierce describes the traditional ways in which we have governed the federal regulatory process and then describes the major changes in the legal and political environment that require us to create a new regulatory governance structure. He concludes that we need to take three steps: (1) change the primary election process in every state from a closed primary to either an open primary or a bipartisan primary; (2) defend the rulemaking process from the many attacks on it; and (3) be prepared to abandon the traditional structure of agency adjudications in favor of …

Relevance Between Strict Liability Theory And Banking Crimes In The Transfer Of Customer Funds: Negligence And Intent, Astrid Athina Indradewi, Evi Kongres, Ananda Chrisna D. Panjaitan, Evelyn Hutami Gunawarman

Research Collection Yong Pung How School Of Law

This article discusses the relevance of the Strict Liability theory to banking crimes in the transfer of customer funds involving elements of negligence as well as intent committed by bank managers. Strict liability places responsibility on the perpetrator without the need to prove fault, but rather by establishing a causal relationship between the act and the harm. In the context of civil law, Articles 1365 and 1367 of the Indonesian Civil Code recognize a form of liability resembling this concept through the mechanism of vicarious liability, whereby the bank as employer may be held liable for the unlawful acts of …

Kedudukan Hukum Eks-Kreditor Pasca Debt To Equity Swap Yang Dihomologasi Dalam Pkpu Kedua Dan Kepailitan Debitor Akibat Pembatalan Perdamaian, Reza Rahmawati

Jurnal Hukum & Pembangunan

Debt to Equity Swap (DES) under a composition plan in Suspension of Debt Payment Obligations (PKPU) proceedings constitutes a restructuring mechanism that transforms the legal status of a Creditor into that of a shareholder upon homologation. Legal issues arise when The Debtor subsequently enters a Second PKPU due to newly incurred debts or is declared bankrupt following the annulment of the composition, while Law No. 37 of 2004 on Bankruptcy and Suspension of Debt Payment does not expressly regulate the legal consequences of a DES under such circumstances. This normative legal research aims to analyze the legal standing and legal …

Voyage Of Injustice: The Socioeconomic Exploitation In The Cruise Industry, Tarissa L. Peterson

Vanderbilt Journal of Transnational Law

No abstract provided.

Dollar Challenger? Cbdcs, Complexities, And Monetary Hegemony, Heng Wang

Research Collection Yong Pung How School Of Law

Digitalization is transforming the architecture of the international monetary system, reshaping how currencies function and financial infrastructures evolve. Among the significant developments are central bank digital currencies (CBDCs)—new digital forms of national currencies. While CBDCs promise benefits such as efficiency, they also generate relational, technological, legal, and governance complexities that would profoundly affect the global financial landscape. Against this backdrop, a compelling question arises: will CBDCs, particularly cross-border CBDCs, challenge U.S. dollar dominance?

To address this, this Article adopts a forward-looking approach to examine three interrelated crucial questions: what makes CBDCs complex? What governance complexity is likely to arise? Will …

‘Salami Slicing’ And Issue Estoppel: Foreign Decisions On The Governing Law, Adeline Chong

Research Collection Yong Pung How School Of Law

Whether an issue estoppel arises over foreign decisions on the governing law of the claim has not been directly considered by an English court, but decisions in other jurisdictions show that this question is increasingly being raised in litigation. Is there identity of issue if the two courts apply different choice of law rules? The answer turns on whether a broad or narrow framing of the issue is adopted. It is suggested that, absent an issue which is subject to forum international public policy, forum overriding mandatory rules or which is one that the forum court retains the prerogative to …

Tinjauan Frasa “Setiap Orang” Dalam Pasal 3 Ayat (1) Peraturan Pemerintah Nomor 56 Tahun 2021 Tentang Pengelolaan Royalti Hak Cipta Lagu Dan/Atau Musik, Fajar Hidayansyah Ilham, Luna Dezeana Ticoalu

Jurnal Hukum & Pembangunan

Copyright is one form of legal protection for intellectual works, occupying an important position within the intellectual property law system. The Copyright Law explicitly grants exclusive rights to creators, encompassing both moral rights and economic rights. Economic rights, as stipulated in Article 9 paragraph (1), allow creators to obtain economic benefits from their works, ranging from publication, reproduction, distribution, performance, to communication to the public. This provision shows that creators hold a primary position as legal subjects entitled to protection, while also serving as central actors in the creative industry ecosystem. In practice, the mechanism for copyright protection requires implementing …

Democratizing Restitution: Trust As An Equitable Approach To Competing Claims On Cultural Heritage Objects, Britta Redwood

Articles

As formerly colonized states began to win their independence in the mid-twentieth century, a growing chorus of voices called on museums in London, Paris, Berlin, and other European cities to return objects taken during the colonial period. Having largely ignored these requests until recently, museums throughout Europe and the United States have begun negotiating returns of these objects to their rightful owners. There is a growing recognition among Western cultural institutions that continuing to hold cultural heritage objects taken under conditions of coercion or violence is morally untenable. More recently, some scholars have argued for a human rights approach to …

Property Rights V. Taxpayer Rights: The Battle Over Tax Foreclosures, Stewart E. Sterk

Articles

No abstract provided.

Regulating Robotaxis, Bryant Walker Smith, Matthew T. Wansley

Articles

In several sunbelt cities, commercial robotaxi service has arrived. The leading robotaxi company is providing over 400,000 trips per week. The industry claims that robotaxis will save lives and provide convenient and affordable mobility. Critics counter that they will increase congestion, undermine transit, and subject the public to ubiquitous surveillance. We argue that the social impact of robotaxis depends on how they are regulated. We emphasize two points missing from the debate. First, some of the benefits of robotaxis may be political rather than technological—some longstanding public policy goals may become viable in a robotaxi world. Second, letting one private …

Fraudulent Transfers And Sovereign Immunity, David G. Carlson

Articles

The article argues that the Supreme Court's decision in United States v. Miller was wrongly decided because it failed to recognize that sovereign immunity is waivable and does not protect the government when it trespasses upon preexisting property rights. The analysis contends that fraudulent transfer claims are quasi in rem actions, meaning the sovereign is subject to the incidental procedures of bankruptcy once enmeshed in such proceedings.

How The U.S. Constitution Shapes International Tax Law: Instrument Choice In Tax Agreements, Noam Noked, Young Ran (Christine) Kim, Reuven S. Avi-Yonah

Articles

The U.S. Constitution’s Treaty Clause, which requires Senate approval by a two-thirds vote for treaties, has significantly influenced the development of international tax law. This Article examines the implications of Senate supermajority requirements on bilateral and multilateral tax treaties and agreements, alternative instruments, relevant international tax standards, and global tax governance.

Historically, tax treaties have been approved exclusively as Article II treaties requiring Senate approval. The difficulty of entering into treaties with the United States has influenced the instrument choice and design of U.S. and international tax standards. To address this challenge, several U.S. and international tax reforms have employed …

The Enduring Case For Bankruptcy Exceptionalism, Jared Mayer

Articles

Nearly fifty years after Congress enacted the Bankruptcy Code, a debate has emerged over the existence and desirability of “bankruptcy exceptionalism”: the idea that bankruptcy law should utilize “flexibility, creativity, and pragmatism over technicalities of process and form” to “prioritize fidelity” to “the purposes for which it was created.”  This question is especially salient in the world of corporate reorganizations, where distressed companies and their investors retain counsel precisely for the purpose of hammering out deals in complex commercial settings. In this Essay, I defend bankruptcy exceptionalism in corporate reorganizations.  I show that bankruptcy exceptionalism is a necessary and desirable …

Challenging Agency Deregulation, Todd S. Aagaard

Faculty Publications

The administrative state is experiencing two seismic shifts. First, in recent years, the Supreme Court has issued a series of decisions that significantly curtailed the powers of administrative agencies. Second, President Donald Trump is using administrative agencies to aggressively deregulate in his second term. The conventional wisdom is that the Supreme Court’s recent precedent will facilitate the Trump Administration’s deregulatory agenda.

This Article argues the opposite. Instead of promoting agency deregulation, recent Supreme Court precedent restraining agency authority provides a potentially powerful basis for challenging agency deregulation as administrative overreach. Time and time again, the Court has taken agencies to …

The Weight Of Stigma, Rebekah A. King, Michael S. Sinha

All Faculty Scholarship

Many health care providers, both implicitly and explicitly, perpetuate stigma in their treatment of patients classified as obese. While medical professionals understand that a one-size-fits-all approach to treatment is ineffective, patients classified as obese are frequently offered limited treatment options that fail to account for their unique needs. Access to a range of effective treatment options has historically been limited, but new GLP-1 receptor agonist medicines like Wegovy (semaglutide) and Zepbound (tirzepatide), have shown incredible promise in addressing the obesity crisis. Unfortunately, these transformative drugs are costly, in high demand, and not widely covered by insurance, rendering them inaccessible for …

Integrating Human Rights Into State And Federal Court Litigation, Lauren E. Bartlett

All Faculty Scholarship

Human rights have never been more important in the United States as they are today. After more than 10 years of dormancy, the seminal work that guides public interest attorneys in incorporating human rights work has been finally updated. The Human Rights in the U.S. Handbook for Public Interest Attorneys is a handbook that provides practical direction to public interest attorneys, including clinical law teachers, legal aid attorneys, public defenders, and others, on how to use human rights in their everyday work. The Handbook invaluably advises attorneys on best practices for using human rights arguments before U.S. state and federal …

The Asexual Assumption, Faith K. Whatley-Blaine, Michael S. Sinha

All Faculty Scholarship

Inclusion-focused dating shows such as ‘Love on the Spectrum’ feature individuals with developmental or neurological disabilities on a quest for love. Despite the focus on disability representation, these shows perpetuate stigma against the disabled community by fostering an infantilizing portrayal of individuals with disabilities. This portrayal undermines the premise of encouraging meaningful romantic relationships and reinforces the stigmatizing association of asexuality with disability. This framing aligns with the broader societal narrative that individuals with disabilities are incapable of or lack interest in participating in romantic relationships or physical intimacy.

The stigma that associates asexuality with disability extends beyond mere entertainment, …