Law Commons^™

When The Math Matters: Finding The “Glue” In Class Action Commonality Determinations, Robin L. Juni

GW Law Faculty Publications & Other Works

This Article is another offering in the “When the Math Matters” series, seeking to help readers understand use of mathematical and scientific concepts in legal contexts and unpack how to do things better. This Article focuses on the seminal case of Wal- Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), describing how the analytical approach to identify whether a class could be certified for purposes of that litigation continues to resonate through recent cases in the federal courts. The Article explains the statistical analysis that lawyers must present to unpack a correlative analysis in similar cases, focusing on adverse …

One Union Soldier's Service With The 141st Regiment Of Pennsylvania Volunteers And That Regiment's Remarkable Record Of Heroism And Sacrifice During The Civil War, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

Christopher C. Wilmarth (my great-great-uncle) served with the 141st Regiment of Pennsylvania Volunteers from August 1862 until June 1863. On May 3, 1863, Christopher was wounded in his leg during the third day of the Battle of Chancellorsville. He was left on the battlefield when the Union army retreated, and he was captured by the Confederates. He remained a Confederate prisoner for at least ten days, and he suffered from exposure to the elements and a lack of adequate medical care until he was returned to the Union army. After multiple amputations, Christopher died in a Union army hospital on …

Money, Money, Money: Universities, Government Funding, And Academic Freedom, Mary-Rose Papandrea

GW Law Faculty Publications & Other Works

Since the federal government began its large-scale funding of research at the start of World War II, the United States and American universities have been in a mutually beneficial relationship. The federal government has reaped the benefits of countless scientific, social science, and technological discoveries that have promoted national security and served the general welfare. In return, American universities have developed extraordinary research enterprises that are regarded as among the best in the world.

From the outset of this relationship, however, scientists and university administrators expressed concern that federal funding would interfere with institutional autonomy and academic freedom. President Trump’s …

Counter-Claims At The International Court Of Justice (2025), Sean Murphy

GW Law Faculty Publications & Other Works

This essay updates and analyzes the practice of counter-claims before the International Court of Justice (ICJ), as well as its predecessor, the Permanent Court of International Justice (PCIJ). In the Court’s jurisprudence, a “counter-claim” is an autonomous legal act by the respondent in a contentious case before the Court, the object of which is to submit a new claim to the Court, one that is linked to the principal claim. A counter-claim is not a defense on the merits to the principal claim; while it is a reaction to that claim, it is pursuing objectives other than simply dismissal of …

Zoning Report: Virginia, Matthew Harris, Scott Markley, Rama Karlapalem, Diana Drogaris, Sara C. Bronin

GW Law Faculty Publications & Other Works

Virginia is rapidly growing and transforming. Its population, now near nine million, is concentrated in Greater Richmond, Hampton Roads, and the urbanized crescent of Northern Virginia. While population growth has been strong, housing construction has struggled to keep pace. With the state facing a shortage of multi-family homes, housing costs continue to outpace incomes. That means too many Virginians are paying too much for their housing.

A significant factor in the cost of housing in Virginia is zoning: the local regulation of land uses, lots, and structures. This report analyzes National Zoning Atlas data on statewide zoning conditions. Part I …

Sharing The Algorithm: The Tax Solution To Generative Ai, Jeremy Bearer-Friend, Sarah Polcz

GW Law Faculty Publications & Other Works

This article argues that tax policy offers a core tool for mitigating the sweeping public policy challenges of generative Artificial Intelligence ("AI"). Specifically, we propose a tax that would allow the public to own a share of AI itself, not just through future income tax liabilities or new excise taxes, but a proposed ownership structure that requires a one-time tax payment by generative AI firms in the form of equity.

Fractional public ownership of AI would directly address four of the key harms of AI that have been well-documented in a deep and still expanding literature. First, many types of …

Why Canada's Terrorism Exception Does Not Violate International Law, William S. Dodge

GW Law Faculty Publications & Other Works

On June 27, 2023, Iran sued Canada in the International Court of Justice (ICJ), alleging that the exception for state supporters of terrorism in Canada’s State Immunity Act violates customary international law. This article argues that Canada’s terrorism exception is consistent with customary international law. Although it is commonly assumed that state-supported terrorism is a sovereign activity and that a general and consistent practice of states accompanied byopinio juris>is required to create an exception to state immunity, in fact, neither assumption is correct.

Under the restrictive theory of immunity, foreign states are generally immune from suit based on …

Erisa And The Failure Of Employers To Perform Their Fiduciary Duties: Evidence From A Survey Of Health Plan Administrators, Barak D. Richman, Amy Monahan, Sara Singer, Jeffrey Pfeffer

GW Law Faculty Publications & Other Works

Employers purchase health benefits for more than 60% of the nonelderly population, making employers both important custodians of employee well-being and important actors in the healthcare ecosystem. Because employers typically have unilateral control over health and retirement benefits, the federal Employee Retirement Income Security Act (ERISA), enacted in 1974, imposes fiduciary obligations on employers when they manage or administer benefits. We provide evidence, from a novel survey of respondents who administer or oversee health benefits for their companies, that many employers appear to neglect even the most basic of their fiduciary obligations to their employees. This neglect may help explain …

Combating The Colorblind Courtroom: Using Race-Switching To Make Racial Bias Salient, Cynthia Lee

GW Law Faculty Publications & Other Works

In criminal courtrooms across the country, well-meaning judges insist on running colorblind courtrooms — courtrooms in which the attorneys are not allowed to call attention to race. Many judges, including many U.S. Supreme Court justices, believe it is best to ignore racial difference and that noticing race will encourage racial discrimination. The problem is that colorblind courtrooms are likely to exacerbate, not ameliorate, implicit racial bias. Decades of social science research have demonstrated that making race salient helps decision makers treat similarly situated individuals of different races the same and that not calling attention to race results in decisionmakers treating …

Prohibiting Threats Of Aggression, Edward T. Swaine

GW Law Faculty Publications & Other Works

Recent events, particularly Russia’s invasion of Ukraine, have revived worries about the international regime regulating the use of force. Vastly less attention has been paid to what often precedes such attacks—threats to use force—and the prohibition on them. While the UN Charter and other legal instruments integrate the threats regime with the regime on actual uses of force, the two regimes are increasingly decoupled, in part because only one considers gradations: the use-of-force regime now identifies more serious variants like aggression and crimes of aggression; threats rules, by contrast, do not. This decoupling reflects real differences in the underlying wrongs, …

Running Government Like A Small Business: Cut Waste, Crush Fraud, Hearing Before The United States Senate Committee On Small Business And Entrepreneurship, Jessica Tillipman

GW Law Faculty Publications & Other Works

This testimony analyzes the 2025 Small Business Administration "audit" of the 8(a) Program within the broader federal procurement integrity framework, emphasizing that oversight is delivered through multiple, overlapping institutions and tools rather than a single, fraud-enforcement process. It explains how independent Inspectors General, GAO, DOJ enforcement, bid protests and eligibility challenges, and disclosure and whistleblower mechanisms operate in parallel, each with distinct evidentiary thresholds, procedural protections, and remedies. It notes that oversight discourse frequently blurs critical distinctions among fraud, improper payments, ineligibility, documentation deficiencies, waste, abuse, and mismanagement. Those categories are not interchangeable: “fraud” is a legal conclusion that typically …

The Survival Of The Jury, Renée Lettow Lerner

GW Law Faculty Publications & Other Works

This Foreword overviews the rich fund of ideas for reform of the jury that were discussed at The George Washington Law Review’s fall 2024 Symposium. The Symposium was inspired by my book The Jury: A Very Short Introduction (Oxford University Press 2023). In many countries, rates of jury trial have been declining. The decline is steepest in the United States, which ironically has one of the most robust formal rights to jury trial in the world. This Symposium brought together distinguished judges, lawyers, and academics and exposed audience members and panelists alike to new ideas and methods of reform concerning …

Procurement For Innovation: Lessons From The Us Experience, Christopher R. Yukins

GW Law Faculty Publications & Other Works

In response to interest from the European Union (EU) in using public procurement to drive innovation in Europe's single market, this article explores US procurement methods which encourage innovation, including competitive negotiations, small business innovation research initiatives, and 'other transactions'. The article also assesses broader US reforms which have facilitated innovation, including the US government's willingness to allow private firms to retain intellectual property rights in innovations created under federal procurements. The article concludes by noting that while not all these approaches may succeed in the EU, in part because of the United States' unique history, culture and economy, the …

What The "Good Moral Character" Test Reveals About Eugenics In Immigration Law, Tania N. Valdez

GW Law Faculty Publications & Other Works

This Essay explores how disability factors into immigration and citizenship law by focusing on three naturalization cases that reveal aspects of the “good moral character” element. A noncitizen’s own disability has been used as grounds for exclusion since the earliest immigration laws. Yet, as it turns out, noncitizens who participate in the eugenic mission of immigration law have been greatly rewarded.

The Eu Versus The Platforms And The First Amendment: Regulating Online Hate Speech, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

What speech should be allowed on social media platforms—and what speech should be prohibited—is a pressing and timely question. Given the recent changes in major social media platforms’ moderation of harmful speech—with the tacit blessing of a 2024 Supreme Court decision and the Trump Administration—and the European Union’s increased regulation of hateful speech and platform content moderation, a clash of these titans is inevitable.

This Article will examine the underlying forces that brought about these conflicts—including First Amendment, CDA Section 230, international, and EU law governing free expression, hate speech, and platforms’ rights and duties regarding content moderation. It will …

Zoning Report: Colorado, Sara C. Bronin, Scott Markley, Matthew Harris, Diana Drogaris

GW Law Faculty Publications & Other Works

Colorado is rapidly growing and transforming. Since 2020, more than 180,000 new residents have decided to call the state home. While housing construction has kept pace with this influx, home types and geographic distribution have not met the changing needs of Colorado’s diverse households. Indeed, housing is being offered at a cost that many Coloradans cannot afford and located in places that are far from jobs and other opportunities. As a result, the state grapples with a housing affordability gap.

This report, a first-of-its-kind analysis of zoning conditions in Colorado, was developed by the authors, affiliates of the National Zoning …

A National Zoning Atlas To Inform Housing Research, Policy, And Public Participation, Sara C. Bronin, Wenfei Xu, Scott Markley, Diana Drogaris

GW Law Faculty Publications & Other Works

Through a unique combination of data science and legal analysis techniques, the National Zoning Atlas is creating the first public, online repository of standardized data about zoning. This article first discusses the context for and methodology behind the atlas. It then establishes three possibilities for using the atlas, including facilitating research (including fair housing research), strengthening planning, and empowering the public.

Zoning Impact Analysis: Texas Senate Bill 785, Sara C. Bronin, Matthew Harris

GW Law Faculty Publications & Other Works

Texas Senate Bill 785 (2025) aimed to increase the amount of land municipalities zone for manufactured housing. Using the comprehensive repository of data in the National Zoning Atlas (NZA), this paper finds that: • SB 785 would increase the amount of land zoned for manufactured housing. • 44% of the 579 municipalities in the NZA dataset would have to enact zoning reforms to comply with SB 785. • 56% would comply with, or be exempt from, SB 785. In addition, the paper recommends that Texas legislators refine definitions, include a "good faith" clause, and require reporting to ensure the legislation …

Zoning Report: Cape Cod, Sara C. Bronin, Diana Drogaris, Matthew Harris

GW Law Faculty Publications & Other Works

Cape Cod is known for its natural beauty, recreational opportunities, and historical significance – attracting around 4 million visitors every year. People not only want to visit the Cape; they also want to live there. Since 2017, the region’s residential population increased by 9% to more than 232,000 year-round residents. Unfortunately, the number of available housing units has not kept up. The Cape faces not only a housing shortage, but also a housing affordability gap. Current residents recognize these issues. In a recent survey, 84% of Cape Cod residents called housing affordability a “moderate or serious problem,” and more than …

Whose Burden Is It Anyway? A Comprehensive Proposal To Reshape Food Safety Review By Treating Food As Medicine, Katya S. Cronin

GW Law Faculty Publications & Other Works

With more than sixty percent of U.S. adults struggling with at least one diet-related health condition, the relationship between nutrition and public health has never been clearer. Indeed, for the first time in over a century, food has a prominent place on the national political stage and is one of the exceedingly few issues that has garnered bipartisan support. The recent rise in popularity of "Food Is Medicine" initiatives, which seek to provide medically tailored or healthy meals to vulnerable populations, underscores the critical importance of food to public health. Yet, while "Food Is Medicine" is shifting the insurance, business, …

A "One Health" Approach To Healthy Food, Katya S. Cronin

GW Law Faculty Publications & Other Works

This Article is brought to you for free and open access by the Law Journals at BrooklynWorks. It has been accepted for inclusion in Brooklyn Law Review by an authorized editor of BrooklynWorks.

A Discourse Analysis Of The Development Of Institutional Compliance Mechanisms At The International Maritime Organization, Rebecca Pskowski

World Maritime University Ph.D. Dissertations

The International Maritime Organization (IMO) plays a pivotal and essential role in international maritime governance, providing a forum for nation states to develop and agree to international standards for maritime safety and security and the protection of the marine environment. IMO is widely perceived to be one of the most successful universal international organizations (IOS), because of the high technical quality of the conventions and other legal instruments it develops, and the near-universal acceptance of most of those instruments. IMO could be seen as an exemplar of the "technical" specialized United Nations agency, where nation-states set aside politics to agree …

Pertanggungjawaban Etik Dokter Dalam Melakukan Aksi Mogok Kerja Di Indonesia, Farel Rifandanu

Jurnal Hukum & Pembangunan

The implementation of strikes by doctors is a complex phenomenon with significant implication that give rise to ethical dilemma. Doctors have a responsibility to provide health services, so that a strike can endanger the health care system. On the other hand, doctors also have the right to fight for fair and decent working conditions. In view of these problems, this study has two (2) problem formulations, how the legal regulations regarding the actions of doctors who go on strike and how the ethical responsibilities of doctors who go on strike. This study uses a normative legal research method that …

Administrative Law: Major Questions About Presidentialism, Jodi L. Short

The Judges' Book

No abstract provided.

Civil Procedure: Cy Pres In Federal Securities Class Actions, Scott Dodson

The Judges' Book

No abstract provided.

Environmental Law: Sackett And The Rules Of Statutory Misinterpretation, Dave Owen

The Judges' Book

No abstract provided.

Health Law: Internet Prescription, Federalism, And The Opioid Crisis, Benjamin A. Barsky

The Judges' Book

No abstract provided.

Constitutional Comparisons And Language, De Maartje Visser

Research Collection Yong Pung How School Of Law

Language can be seen as an intuitive challenge for those who embark on comparative constitutional research: its intricate entanglement with law is often overlooked and not engaged with explicitly. This chapter argues that this is a missed opportunity at best, and arguably presents a hazard for the collective quality of the scholarly discourse. It discusses four ways in which language matters when engaging in constitutional comparisons: the problem of literal translation; the problem of legal-conceptual translation; a multilingual discourse that is marked by fragmentation; and expectations in communication with a foreign or international readership. The approach taken is constructive, with …

Governing Intelligence: Singapore’S Evolving Ai Governance Framework, Jason G. Allen, Jane Loo, Jose Luna

Research Collection Yong Pung How School Of Law

This paper provides an outline analysis of the evolving governance framework for Artificial Intelligence (AI) in Singapore. Across the Singapore government, AI solutions are being adopted in line with Singapore’s “Smart Nation Initiative” to leverage technology to make impactful changes to the nation and the economy. In tandem, Singaporean authorities have been assiduous to release a growing number of governance documents, which we analyse together to chart the city-state’s approach to AI governance in international comparison. Characteristics of Singapore’s AI governance approach include an emphasis on consensusbuilding between stakeholders (particularly government and industry but also citizens) andvoluntary or “quasi” regulation, …

Human Rights At Sea: Analyzing States' Responses To Cruise Ships During The Covid-19 Pandemic, Lixin Chen

Research Collection Yong Pung How School Of Law

In the early stages of the COVID-19 pandemic, the treatment of cruise ships by coastal states was inconsistent, with some ships being allowed to dock while others were not. To that end, this Note focuses on the obligations that a coastal state owes to the individuals onboard the cruise ships in the context of the COVID-19 pandemic, including the rights to life and health. It further considers whether and how such rights are to be balanced with other countervailing considerations of such states, such as the risk of transmission to the local communities. This author concludes with the view that …