Law Commons^™

Between A River And A Wall: An Impossible Choice For Migrants Living Under Operation Lone Star And S.B. 4, Salimah Khoja, Paulina Leyva Hernandez

City University of New York Law Review

In 2023 the Texas legislature passed Senate Bill 4 (“S.B. 4”), which empowers state and local law enforcement agencies to engage in immigration enforcement by arresting and deporting migrants who are suspected of crossing the southern border. Anti-immigrant state laws like Texas’s S.B. 4 and Arizona’s Senate Bill 1070 (“S.B. 1070”) were created to test the limits of state power and limit the reach of federal immigration enforcement within the states. Legal challenges to state laws like S.B. 4 and S.B. 1070 demonstrate the ongoing tension between federal and state governments related to authority over immigration matters, even though immigration …

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 …

Indigenous Knowledge As Federal Policy, Sara C. Bronin

GW Law Faculty Publications & Other Works

In 2024, the federal historic preservation agency unanimously voted to adopt a policy supporting the full recognition and integration of Indigenous Knowledge in the preservation field. Indigenous Knowledge can be described roughly as the body of observations, knowledge, practices, and beliefs developed by Indigenous Peoples through their interaction and experience with the environment. The policy acknowledges that Indigenous Knowledge is valid, sound, and self-supporting, and that designated representatives of Indian Tribes, Alaska Native villages, and Native Hawaiian organizations should be recognized as subject-matter experts with regard to properties of religious and cultural significance to them. Indigenous Knowledge has not been …

The Centennial Of Meyer And Pierce: Parents’ Rights, Gender-Affirming Care, And Issues In Education, Ira C. Lupu

GW Law Faculty Publications & Other Works

This paper was prepared for a Symposium marking the centennial of the Supreme Court’s decisions in Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925). At their inception, Meyer and Pierce reflected constitutional principles of economic freedom and parental control of their children’s education. Part I traces the path of ideas put in motion by Meyer and Pierce. These include the decline of their economic freedom component and the broader grounding of their doctrines of parental authority. Eventually, the chameleon-like legacy of Meyer and Pierce stretched to include First Amendment concerns of religious exercise and knowledge acquisition, as …

Food Procurement: An Essential Ingredient To Mitigating Climate Change And Enhancing Public Health, Chloë Waterman, Rachel Clark, Steven L. Schooner

GW Law Faculty Publications & Other Works

This short article addresses a critical, but often underappreciated, aspect of the evolving suite of efforts to reduce greenhouse gas (GHG) emissions: food and agriculture systems, which account for at least a quarter of GHG emissions and more methane emissions than any other sector. The article invites government leadership to become more intentional in focusing on sustainable food procurement as a key strategy to mitigate climate change. The authors argue that public food procurement can – and should – be leveraged to generate a wide range of cascading social benefits beyond mitigating climate change and improving public health, including worker …

Durability, Flexibility And Plasticity In The U.N. Convention On The Law Of The Sea, Sean Murphy

GW Law Faculty Publications & Other Works

The overall resilience of the U.N. Convention on the Law of the Sea during the forty years since its adoption in 1982—its durability, its flexibility and its plasticity in the face of myriad challenges that have unfolded over time—is largely attributable to certain design features within the Convention, to a willingness to ‘bend’ the Convention toward practical outcomes when necessary, and to the foresight of the drafters in closely tying the Convention to other agreements and standards, as well as to the general field of international law, so that the Convention might evolve as the world evolves. There are risks …

Firearms And The Homeowner: Defending The Castle, The Curtilage, And Beyond, Cynthia Lee

GW Law Faculty Publications & Other Works

In the spring of 2023, a series of back-to-back shootings shook the nation. A Black teenager in Missouri trying to pick up his two younger siblings went to the wrong door and rang the doorbell. The homeowner came to the door with a gun and, without saying a word, fired two shots at the Black teenager, hitting him in the face and the arm. A few days later, a Caucasian woman and her friends in upstate New York, looking for a party, drove up the wrong driveway. The homeowner came out of his house with a shotgun and fired two …

Feature Comment: Don’T Let Post-Employment Conflicts Derail Your Contract Award, Jessica Tillipman, Bryan Dewan

GW Law Faculty Publications & Other Works

Often referred to as “revolving door” restrictions, the U.S. Government has devised numerous laws, policies and procedures designed to combat unethical or anti-competitive conduct that may stem from a Government employee’s decision to leave federal service. The laws range from ethics restrictions designed to minimize the appearance of impropriety while a federal employee endeavors to leave the Government, to criminal laws, which seek to punish conflicts of interest and improper conduct that may occur after Government service concludes.

In addition to the ethical and criminal considerations that must be taken into account when navigating the Government’s myriad post-Government employment restrictions, …

The Intentional Pursuit Of Purpose: Nurturing Students’ Authentic Motivation For Practicing Law, Katya S. Cronin

GW Law Faculty Publications & Other Works

“Why do you want to pursue a career in the law?” Nearly every aspiring attorney answers this question as part of their law school application personal statement. They pour their hopes, dreams, and challenges into the answer to this question—their formative struggles, deeply held values, and resolve to make the world a better place as legal practitioners. Soon after starting law school, however, law students turn their attention from core aspirations to immediate concerns. Forgotten and slowly choked by the thorns of competition, prestige, and external validation, law students’ internal sense of self and purpose begin to wither away until, …

Bystanders To A Public Health Crisis: The Failures Of The U.S. Multi-Agency Regulatory Approach To Food Safety In The Face Of Persistent Organic Pollutants, Katya S. Cronin

GW Law Faculty Publications & Other Works

Per- and polyfluoroalkyl substances (“PFAS”) are devastating our food systems and our health. Recent studies link even small exposure to PFAS to a host of adverse health outcomes, including cancer, autoimmune diseases, thyroid disease, liver damage, childhood obesity, infertility, and birth defects.

Food consumption is a primary route of PFAS exposure. PFAS are omnipresent at dangerous levels in our marine and agricultural environments, including in water, soil, fertilizers, compost, and air. From there, they can find their way into virtually every plant, fish, animal, and animal product, and ultimately (in the greatest concentration) into the consumer. In addition, PFAS-laden food …

Extraterritoriality, Francesca Bignami, Giorgio Resta

GW Law Faculty Publications & Other Works

This chapter argues that the competing American ballot-box and European fundamental rights paradigms of regulatory law have marked the specific domain of digital regulation. These regulatory paradigms and their associated state interests are projected extraterritorially through the market power of Silicon Valley, on the one hand, and the privacy rights of European Union (EU) regulators, on the other hand. This chapter also analyzes recent developments in the EU, where there is now a state effort to make digital markets and, relatedly, an emerging preference for some data localization to promote both fundamental rights and economic and security interests. In China, …

Why Sustainable Procurement? Read All About It, Steven L. Schooner

GW Law Faculty Publications & Other Works

As procurement professionals (knowingly or unknowingly) await regulations promulgated in an effort to adapt to and mitigate climate change, significant opportunities exist within current federal regulations and policy to affect change. For now, the burden to stimulate innovation falls upon procurement professionals, individually, and collectively. In that context, information is power. What better place to start than with a good book?

With an eye towards informing productive conversations across the federal acquisition community about evolving expectations, practices, and policies in sustainable procurement, this article suggests some reading from the massive and diverse body of work related to climate change.

This …

Policy Brief: Congress Should Reject The Lummis-Gillibrand Stablecoin Bill Because It Would Endanger Consumers, Investors, And Our Financial System, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

On April 17, 2024, Senators Cynthia Lummis (R-WY) and Kirsten Gillibrand (D-NY) introduced a bill entitled “The Lummis-Gillibrand Payment Stablecoin Act.” The bill’s declared purpose is to create “a clear regulatory framework for payment stablecoins that will protect consumers, enable innovation and promote U.S. dollar dominance while preserving the dual banking system.”

Contrary to its stated purpose, the Lummis-Gillibrand bill would establish a weak and deeply flawed regulatory regime for stablecoins, thereby exposing consumers, investors, and our financial markets to grave dangers. The bill would allow stablecoins, which are volatile, deposit- like instruments, to be offered to the public without …

Will Protectionism Prevail In Global Public Procurement?, Laurence Folliot Lalliot, Christopher R. Yukins

GW Law Faculty Publications & Other Works

For public procurement, the pendulum of trade policy seems to be swinging back towards protectionism. Governments can have a profoundly important impact on their home economies when they raise barriers to foreign competition. Recent protectionist efforts by major economic powers, including the United States and the European Union, suggest a new world order—of new import and export barriers, tight technology controls and “friend-shoring” to limit public procurement trade to a closed circle of aligned nations. Will this be the new economic order in public procurement? This article, originally published in Concurrences Review, concurrences.com, argues not. Open international trade in …

Protecting The U.S. National Security State From A Rogue President, Laura T. Dickinson

GW Law Faculty Publications & Other Works

The presidency of Donald Trump revealed weaknesses in the U.S. constitutional structure and its legal rules, weaknesses that had been covered over for most of our history because presidents of all political parties voluntarily obeyed norms of behavior that kept the presidency within the bounds of constitutional democratic governance. Unfortunately, there is no guarantee that such norms have been permanently restored. Thus, scholars, policymakers, and judges must consider now how to protect the rule of law from a rogue president, rather than waiting for the next crisis to occur. This Article provides a comprehensive set of achievable reforms targeted specifically …

In Memoriam: Honorable Ruth Thelma Cooper Breslauer Burg (1926-2023), Judge Reba Page, Judge Mary Ellen Coster Williams, John S. Pachter, Steven L. Schooner

GW Law Faculty Publications & Other Works

This collection of short pieces celebrate the extraordinary life of Judge Ruth Thelma Cooper Breslauer Burg (1926-2023). As Judge Page reflects: "Those of us privileged to know her held Judge Burg in awe, and she remains a personal and professional inspiration. Judge Burg is celebrated for many reasons: her exceptional intellect; her professional accomplishments as a judge, lawyer, and mediator; her dedication to her Jewish faith; and her deep allegiance to her family and friends." Judge Williams explains that "a few luminaries in the ABA Section of Public Contract Law ... epitomize the Section’s attributes—commitment to excellence in the law, …

Modeling Fee Shifting With Computational Game Theory, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

While modern mathematical models of settlement bargaining in litigation generally seek to identify perfect Bayesian Nash equilibria, previous computational models have lacked game theoretic foundations. This article illustrates how computational game theory can complement analytical models. It identifies equilibria by applying linear programming techniques to a discretized version of a cutting-edge model of settlement bargaining. This approach makes it straightforward to alter some assumptions in the model, including that the evidence about which the parties receive signals is irrelevant to the merits and that the party with a stronger case on the merits also has better information. The computational model …

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 …

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. …

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 …

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 …

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 …

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 …

The Supreme Court’S Opinion In Sec V. Jarkesy Has The Potential To Be Extremely Destructive, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

In this essay, Professor Pierce describes the legal framework within which the Supreme Court decided whether an agency could adjudicate a class of disputes prior to its 2024 opinion in SEC. v Jarkesy and then explains why the reasoning in Jarkesy has the potential to require federal courts to adjudicate many thousands of regulatory disputes that they lack the expertise and resources to adjudicate in a competent manner.

The Sentinel Stirs: Government Procurement Law After Loper Bright Enterprises, Christopher R. Yukins, Kristen Ittig, Nicole Williamson

GW Law Faculty Publications & Other Works

Administrative law – and by extension, government procurement law – is in a period of transition in the United States. The judiciary, sometimes alarmed by the perceived excesses of the administrative state, is reexamining the deference traditionally afforded agency interpretations of law. As part of that transition, the Supreme Court in Loper Bright Enterprises v. Raimondo (June 2024) overruled the test it first established in Chevron v. Natural Resources Defense Council (1984), which held that if a statute was ambiguous, the courts would defer to an agency’s reading of that statute so long as the agency’s interpretation was reasonable. This …

The Old And The New Governors: Efforts To Regulate And To Influence Platform Content Moderation, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

The era of “Hands off the Internet” is clearly at an end. Fueled by conservatives’ charges of platform bias, state governments have enacted, and the federal government has proposed, regulations to control platforms’ discretion in moderating content. Justice Thomas recently provided a roadmap for such regulation, suggesting that governments impose common carrier or public accommodation regulations on platforms to limit “viewpoint discrimination.” States like Texas then enacted regulation prohibiting “viewpoint discrimination” in content moderation, and this regulation was upheld by the Fifth Circuit. Florida enacted similar legislation, but such this statute was largely struck down by the Eleventh Circuit. This …

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 …

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.