Law Commons^™

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 …

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. …

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 …

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 …

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, …

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 …

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 …

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 …

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 …

The Practice Of Small Island Developing States On The Consent Regime For Marine Scientific Research: Developing And Reframing The Law Of The Sea In Changing Circumstances, Luciana Fernandes Coelho

World Maritime University Ph.D. Dissertations

The 1982 United Nations Convention on the Law of the Sea (LOSC) seeks to reconcile competing interests in marine scientific research (MSR) within areas under national jurisdiction through the consent regime. Amidst the heightened focus on the limited capacity of Small Island Developing States (SIDS) to undertake the necessary MSR to maintain their livelihoods, it has been suggested that the consent regime for MSR could offer support in enhancing the scientific and technological capabilities of SIDS. However, the framework's fitness for purpose in light of changing circumstances has been questioned. Within this context, this thesis analyzes the influence of SIDS …

Not Why, But How: Applying The Sharp Edge Of The Law In Administrative Law Judicial Review In Singapore, Tan K. B. Eugene

Research Collection Yong Pung How School Of Law

The management and control of power, and, in particular, the endeavour to strike the appropriate balance between affording governments the ability to act swiftly and decisively in the public interest while providing for adequate safeguards against governmental excess, is an intensely difficult undertaking. There is no one model that is correct for all times and all places.

Book Review: Rethinking Participation In Global Governance: Voice And Influence After Stakeholder Reforms In Global Finance And Health, Melissa (M.J.) Durkee

Scholarship@WashULaw

Who is entitled to contribute to rulemaking at the international or transnational levels? "Rethinking Participation in Global Governance takes an empirical tack," confronting the important and understudied—but methodologically confounding—question of how effectively to improve the representativeness of global governance. The volume’s carefully constructed qualitative studies offer a wealth of insights but few systematic or easily generalizable answers. Nevertheless, the book has much to offer, describing models and techniques to expand participation, offering examples of how various actors in the Global South were able to make use of them, then embedding this description in the push and pull of a scholarly …

Colonizing Queerness, Jeremiah A. Ho

All Faculty Scholarship

This Article investigates how and why the cultural script of inequality persists for queer identities despite major legal advancements such as marriage, anti-discrimination, and employment protections. By regarding LGBTQ legal advancements as part of the American settler colonial project, I conclude that such victories are not liberatory or empowering but are attempts at colonizing queer identities. American settler colonialism’s structural promotion of a normative sexuality illustrates how our settler colonialist legacy is not just a race project (as settler colonialism is most widely studied) but also a race-gender-sexuality project. Even in apparent strokes of progress, American settler colonialism’s eliminationist motives …

Antisocial Innovation, Christopher Buccafusco, Samuel N. Weinstein

Articles

Innovation is a form of civic religion in the United States. In the popular imagination, innovators are heroic figures. Thomas Edison, Steve Jobs, and (for a while) Elizabeth Holmes were lauded for their vision and drive, and seen to embody the American spirit of invention and improvement. For their part, politicians rarely miss a chance to trumpet their vision for boosting innovative activity. Popular and political culture alike treat innovation as an unalloyed good. And the law is deeply committed to fostering innovation, spending billions of dollars a year to make sure society has enough of it. But this sunny …

Blinded By The Light: Resolving The Conflict Between Satellite Megaconstellations And Astronomy, David A. Koplow

Vanderbilt Journal of Transnational Law

The sudden emergence of large constellations of small satellites in low altitude orbits represents one of the most dramatic contemporary innovations in outer space. Promising low-cost, low-latency global communications and spectacular capacities for remote sensing of the Earth, these satellites will soon number in the tens of thousands, sponsored by diverse corporations and countries around the world. But this proliferation of spacecraft comes at a steep cost in unavoidable interference with ground-based astronomy: as the satellites overfly the observatories, they block the views of remote objects and phenomena, leaving obliterating white streaks on the collected imagery, and obscuring access to …

Environmental Justice As Environmental Human Rights, John H. Knox, Nicole Tronolone

Vanderbilt Journal of Transnational Law

For many years, the environmental justice movement in the United States and the evolution of international human rights law concerning the environment have pursued parallel but separate paths, only occasionally noting that they share common concerns. This Article seeks to build a stronger bridge between them, in three ways.

First, it presents the most detailed restatement of environmental human rights law yet published. International human rights bodies have developed a robust environmental jurisprudence setting out concrete obligations on States, including procedural obligations to provide public access to environmental information, decision-making, and remedies, substantive obligations to adopt and enforce effective environmental …

Fights Over Continuity - In Life And Law, Jamison E. Colburn

Faculty Scholarship

What is the whole: a river or that river and its tributaries? There is no “natural” answer to the question, only so many answers as there are reasons for asking. Lately, the Clean Water Act has been the captive of such diversions in our Supreme Court’s agenda. Changing it will not free it from that captivity. For whatever reforms we choose could still provide boundless opportunities for frustration in questions like the above. If the Court is as eager to cause that frustration as it has appeared lately, maybe we should help the Court to its fight with this iconic …

Defining 'Victim' Through Harm: Crime Victim Status In The Crime Victims' Rights Act And Other Victims' Rights Enactments, Paul Cassell, Michael Ray Morris

Utah Law Faculty Scholarship

Who qualifies as a “victim” is the foundational question for the Crime Victims’ Rights Act (“CVRA” or “Act”) and other crime victims’ rights laws. This article provides the first comprehensive exploration of this “victim” definition question. It traces how the CVRA (and many states) define “victim” as broadly covering anyone who has been harmed as the result of a crime. This article begins by reviewing how the definition of “victim” has evolved in the criminal justice system since the Nation’s founding. In the last several decades, as crime victims’ rights protections have proliferated, it has become necessary to define “victim” …

California, An Island?, Lincoln L. Davies, Stephanie Lenhart

Utah Law Faculty Scholarship

A monumental change quietly is unfolding in the American West. For decades, the region has lagged the rest of the nation in coordinating electricity operations. Multiple efforts to change this stalled or never got off the ground. Now, everything is different. In the face of climate uncertainty and deepening concern that the region is unprepared for its energy future, stakeholders—government, industry, interest groups—are posturing to create formal electricity markets that will transform the region’s infrastructure, resilience, and economy for the remainder of this century.

Two paths are on the table. In one, much if not all the West will join …

Abortion And The Extremism Of Bright Line Rules, Teneille R. Brown

Utah Law Faculty Scholarship

Rather than eliding the workability or necessity of bright-line rules in certain domains, this Essay is a rallying cry for epistemic humility regarding what biological criteria can and cannot say. Policymakers sometimes lean on the biosciences to offer “objective” solutions to thorny
moral and legal issues. But descriptive biological data cannot answer normative questions on their own. Cloaking the theoretical, normative scaffolding in biological criteria is a disingenuous but common phenomenon I refer to as the “bio-legal mismatch.”

In this Essay, I discuss various abortion-restrictive statutes and cases to elucidate the problems with the bio-legal mismatch. Specifically, I explore the …

A Global Crypto Code Of Conduct: Crafting An Internationally Centralized Regulatory Body For A Decentralized Asset, Mary Kavaloski

Vanderbilt Journal of Transnational Law

The advent of Bitcoin in 2009 presented a previously unfathomable possibility for the future of currency and monetary transactions. Now, cryptocurrency is ubiquitous; it is increasingly seizing media headlines, novel swathes of investors, institutional bank involvement, and most importantly of all, the attention of government regulators. Yet governments around the globe have failed to adequately keep up with the pace of cryptocurrency's evolution, particularly because of their lack of expertise in this unprecedented area. This Note discusses how cryptocurrency's truly global footprint warrants a partnership between national regulators and industry actors at the international level. Specifically, by exploring the approaches …

Addressing Unlawful Cyber Operations In Armed Conflict Through Human Rights Bodies Instead Of The International Criminal Court, Zachary R. Orr

Vanderbilt Journal of Transnational Law

Although the ICC-or other similarly-situated international criminal tribunals-could soon see the first cyber war crime prosecution, two glaring issues persist. First, the universe of conduct that could give rise to such a prosecution is limited. Second, heavy reliance on the war crimes framework fails to provide a forum for redress of many harms caused by other unlawful cyber operations in armed conflict. The fragmented nature of international law and its enforcement mechanisms requires solutions that harness the full range of the integrated architecture of the international system. Cyber operations might soon feature at the ICC, but only a fraction of …

Temporary Protection For Ukrainians In The European Union: Why Now And When Again?, Maryellen Fullerton

Vanderbilt Journal of Transnational Law

In 2022, the Russian invasion of Ukraine produced an unprecedented wave of temporary immigration protections throughout the European Union (EU). Within the first few months of the war in Ukraine, over 4 million displaced individuals had registered for temporary protection. EU States distant from Ukraine sheltered hundreds of thousands of displaced families, while Poland and other EU States that border Ukraine sheltered more than 2 million. This groundswell response marked a striking departure from just seven years earlier, when the EU Commission and EU Council failed to use readily available laws to provide a temporary protection program for Syrians displaced …

Justifying Aggression: Russia's 2020 Constitutional Amendments And The Invasion Of Ukraine, Robert C. Blitt

Vanderbilt Journal of Transnational Law

Beyond the alluring promise of an enhanced social safety net for Russian citizens, President Vladimir Putin's constitutional amendments of 2020 betrayed a distinct preoccupation with fortifying Russia's international standing and crafting a new national identity. By Putin's own account, these amendments were necessary to steel the country against the malevolent action of international conspirators committed to Russia's downfall. As this Article posits, these specific constitutional changes systematically entrenched an exceptionalist vision of Russian sovereignty and a civilizational identity that left the country constitutionally untethered from international norms and institutions, saturated in religious fervor and visions of imperial glory, and poised …

Constitutional Clash: Labor, Capital, And Democracy, Kate Andrias

Faculty Scholarship

In the last few years, workers have engaged in organizing and strike activity at levels not seen in decades; state and local legislators have enacted innovative workplace and social welfare legislation; and the National Labor Relations Board has advanced ambitious new interpretations of its governing statute. Viewed collectively, these efforts — “labor’s” efforts for short — seek not only to redefine the contours of labor law. They also present an incipient challenge to our constitutional order. If realized, labor’s vision would extend democratic values, including freedom of speech and association, into the putatively private domain of the workplace. It would …

Justice Via Chat? How Litigants’ Preferences And Attorneys’ Recommendations Influence The Choice To Use Online Dispute Resolution, Andrea C. F. Wolfs, Donna Shestowsky

Psychology Faculty Articles and Research

There is a significant need for empirical evidence concerning how litigants compare and choose between various modalities of online dispute resolution (ODR) and traditional in-person mediation for resolving legal disputes. To fill this need, we examined three potentially relevant psychological factors: (a) baseline attitudes toward in-person, video, and text-based mediation; (b) past communication style used by litigants; and (c) expert advice via attorney recommendations. We utilized a 2 × 3 × 3 design with communication style as a between-subjects variable, mediation modality as a within-subjects variable, and attorney recommendation randomized as either aligning with or differing from the participant’s baseline …