Law Commons^™

The Sarbanes-Oxley Act: Legal Implications And Research Opportunities, Lawrence A. Cunningham, Stephen Kwaku Asare, Arnold Wright

GW Law Faculty Publications & Other Works

Congress passed the Sarbanes Oxley Act to restore investor confidence, which had been deflated by massive business and audit failures, epitomized by the demise of the Enron Corporation and Arthur Anderson LLP. The Act altered the roles and responsibilities of auditors, corporate officers, audit committee members, as well as other participants in the financial reporting process. We evaluate the potential legal implications of some of the Act's major provisions and anticipate participants' likely responses. Our evaluation suggests that these provisions will significantly change behavior, increase compliance costs and alter the legal landscape. We also identify promising avenues for future research …

Constructing A Bid Protest Process: Choices Every Procurement Challenge System Must Make, Daniel I. Gordon

GW Law Faculty Publications & Other Works

Many public procurement systems, within the United States and abroad, have established systems for allowing vendors to challenge the conduct of procurement processes. Providing an effective domestic review mechanism for vendors who believe that government procurement officials have not conducted an acquisition lawfully brings an important measure of transparency and accountability to public procurement systems. This brief article discusses the goals of these bid protest systems, and then presents key choices that must be made in crafting such a system. For example: Where in the government is the protest forum located? How broad is the forum's jurisdiction? Who has standing …

Justice Rehnquist And The Dismantling Of Environmental Law, Robert L. Glicksman, James May

GW Law Faculty Publications & Other Works

Chief Justice William H. Rehnquist was uniquely situated to have a profound impact on the development of federal environmental law - both because of the overlap of his tenure with the development of the field of environmental law and because of his four-decade tenure on the U.S. Supreme Court, more than one-half of which was as Chief Justice. Before his death on September 3, 2005, Rehnquist heard the vast majority of the Court`s environmental cases during the modern environmental era, penning opinions in 25% of them, and affording him an opportunity to shape environmental law, especially during its formative years, …

Using Ex Post Evaluations To Improve The Performance Of Competition Policy Authorities, William E. Kovacic

GW Law Faculty Publications & Other Works

Competition policy is a work in progress. Charting the future course of competition policy can benefit heavily from looking back and asking two fundamental questions. First, did the agency’s interventions produce good results? Second, did the agency’s managerial processes help ensure that the agency selected initiatives that would yield good outcomes? This article discusses how government competition authorities might use ex post evaluations of enforcement decisions, operational mechanisms, and organizational design to improve the quality of their work. Preparing performance measures and conducting evaluations provide valuable tools for answering critical questions about the administration of competition policy.

The article also …

What The Shutts Opt-Out Right Is And What It Ought To Be, Alan B. Morrison

GW Law Faculty Publications & Other Works

This article discusses the ramifications of the U.S. Supreme Court's decision in Phillips Petrolem v. Shutts, 472 U.S. 797 (1985), regarding the right of an absent class member to opt out of a class action. The article addresses both the current prevailing understanding of Shutts, which is based on the personal jurisdiction strain of due process jurisprudence, and what the authors believe is a more useful understanding, based on the property rights strain of due process jurisprudence. As an addendum to the article, the authors propose a new civil procedure rule governing class actions that would implement their ideas about …

The Corporate Lawyer And 'The Perjury Trilemma', Thomas D. Morgan

GW Law Faculty Publications & Other Works

This paper extends Monroe Freedman's idea of the criminal lawyer's "perjury trilemma" to current issues faced by corporate lawyers dealing with perceived pressures on the attorney-client privilege. The duties of criminal defense and corporate lawyers are more similar than they often seem. Corporate lawyers' duties of honesty in dealing with third parties are closely analogous to criminal lawyers' duties of honesty in dealing with a court. Both sets of lawyers also have an important interest in fostering open communications with their clients. Where their situations differ is not with respect to lawyer obligations but with respect to their clients' rights. …

Linking Domestic Violence, Child Abuse, And Animal Cruelty, Joan Schaffner

GW Law Faculty Publications & Other Works

For years social science has demonstrated a link between animal abuse and human violence but the legal system has been slow to recognize this link. This article discusses the link among domestic violence, child abuse and animal abuse in the home and how one jurisdiction, the District of Columbia, is addressing this complex and integrated cycle of abuse as family abuse. The legal proposals include mandatory cross-reporting of abuse between child services and animal protection services, recognizing pet abuse with the intent of injuring a human family member as grounds for an intra-family abuse protective order, providing companion animal protection …

A Grand Slam Of Professional Irresponsibility And Judicial Disregard, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

Many examples of bad lawyering and indifferent judicial responses to bad lawyering concern those who seek to raise the standards of professional conduct and assure adequate legal representation for all clients. This article discusses one case (a death penalty prosecution of William Charles Payton for rape, murder and attempted murder in 1981) to illustrate just how poor the performance of lawyers can be and how largely indifferent judges often are to such performances. With the defendant's life on the line, it appears that none of the legally trained professionals at trial did what professional standards required of them. The prosecutor …

The Fourth Amendment: Internal Revenue Code Or A Body Of Principles?, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

The Supreme Court has made the body of Fourth Amendment law too complicated, inconsistent, and confusing. Prior to Mapp v. Ohio, in 1961, the Court focused its attention on federal law enforcement and devoted less of its docket to criminal procedure cases. After Mapp, the Court was called upon to review state cases and forced to deal with the myriad of state law enforcement issues that inevitably arise. Since Mapp, the Court has made the meaning of the relatively few words that constitute the Fourth Amendment extremely complicated, so that the total body of Fourth Amendment law has begun to …

Trial Tactics: Reverse Rule 404(B) Evidence: Parts I And Ii, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

Defendants have the same right to offer Rule 404(b) evidence as prosecutors, and they are not required to give pretrial notice under the Federal Rules of Evidence. When defendants offer this evidence, they attempt to prove that someone else is guilty of the crime attributed to them. This often is referred to as reverse Rule 404(b) evidence. Some defense evidence will be admitted - indeed the Confrontation Clause or Compulsory Process Clause may require admission in some cases - but not all defense evidence will be admitted. The issue is where to draw the line between admissible and inadmissible evidence. …

Was The Disparate Impact Theory A Mistake?, Michael Selmi

GW Law Faculty Publications & Other Works

The disparate impact theory has long been viewed as one of the most important and controversial developments in antidiscrimination law. In this article, Professor Selmi assesses the theory's legacy and challenges much of the conventional wisdom. Professor Selmi initially charts the development of the theory, including a close look at Griggs v. Duke Power Co. and Washington v. Davis, to demonstrate that the theory arose to deal with specific instances of past discrimination rather than as a broad theory of equality. In the next section, Professor Selmi reviews the success of the theory in the courts through an empirical analysis …

Women In The Workplace: Which Women, Which Agenda?, Michael Selmi, Naomi R. Cahn

GW Law Faculty Publications & Other Works

Much of the work family literature that has blossomed over the last decade has focused on professional women and has emphasized policy changes that would be of less utility to many other working women and men. In this symposium contribution, we explore the recent data on working time to demonstrate that in today's economy more women are underemployed rather than overemployed. We also demonstrate that although professional women tend to work the longest hours, they also tend to have the greatest means, both in income and workplace benefits, to support them in achieving a workable balance between their work and …

Privacy For The Working Class: Public Work And Private Lives, Michael Selmi

GW Law Faculty Publications & Other Works

Privacy has become the law's chameleon, simultaneously everywhere and nowhere. This is particularly true of the workplace where employees often seek some private space but where the law, particularly the formidable employment-at-will rule, typically frustrates that search. As the workplace has expanded both in its scope and importance, additional concerns have been raised about an employer's potential reach outside of the workplace. In this symposium contribution, I explore the privacy issue by asking a fundamental question: what do employees deserve? My answer is that, as a matter of policy, we ought to concede privacy issues as the employer's domain at …

Race In The City: The Triumph Of Diversity And The Loss Of Integration, Michael Selmi

GW Law Faculty Publications & Other Works

This symposium piece explores the current state of our cities with a particular emphasis on political power, education and housing, and examines whether our move away from integration and towards diversity has been a trade worth making. Despite the transformation of most of the largest cities to majority-minority status, the latest data indicate that our housing remains deeply segregated, and urban schools deeply troubled, and in many instances, whites have been able to retain political power. The increased emphasis on diversity has not translated into the expected multicultural renaissance. The essay also explores the emerging issues relating to the ascendancy …

Overcoming The Fear Of Guns, The Fear Of Gun Control, And The Fear Of Cultural Politics: Constructing A Better Gun Debate, Donald Braman, Dan M. Kahan

GW Law Faculty Publications & Other Works

The question of how strictly to regulate firearms has convulsed the national polity for the better part of four decades, and in this article Donald Braman and Dan M. Kahan conclude that the best way to engender productive debate is to investigate deeper than the statistics and address the competing American social attitudes on guns themselves: guns symbolizing honor, human mastery over nature, and individual self-sufficiency on the one hand, and guns creating the perpetuation of illicit social hierarchies, the elevation of force over reason, and the expression of collective indifference to the well-being of strangers on the other. Braman …

Filartiga’S Legacy In An Era Of Military Privatization, Laura T. Dickinson

GW Law Faculty Publications & Other Works

Filartiga v. Pena-Irala established the idea that domestic tort suits might be brought under the Alien Tort Claims Act ("ATCA") against those accused of violating human rights norms. But what is the legacy of this case in an era of military privatization? Are there available legal responses to what we might call the privatization of torture? In the Abu Ghraib prison in Iraq, where detainees were tortured and abused, the individuals involved in the torture included not only members of the military, but contractors hired from the private sector. Because U.S. constitutional scrutiny traditionally applies only to state actors, privatization …

Cultural Cognition And Public Policy, Donald Braman, Dan M. Kahan

GW Law Faculty Publications & Other Works

People disagree about the empirical dimensions of various public policy issues. It's not surprising that people have different beliefs about the deterrent effect of the death penalty, the impact of handgun ownership on crime, the significance of global warming, the public health consequences of promiscuous sex, etc. The mystery concerns the origins of such disagreement. Were either the indeterminacy of scientific evidence or the uneven dissemination of convincing data responsible, we would expect divergent beliefs on such issues to be distributed almost randomly across the population, and beliefs about seemingly unrelated questions (whether, say, the death penalty deters and whether …

From Cooperative To Inoperative Federalism: The Perverse Mutation Of Environmental Law And Policy, Robert L. Glicksman

GW Law Faculty Publications & Other Works

Beginning in 1970, Congress adopted a series of statutes to protect public health and the environment that represented an experiment in cooperative federalism. The operative principle of cooperative federalism is that the federal government establishes a policy - such as protection of public health and the environment and sustainable natural resource use - and then enlists the aid of the states, through a combination of carrots and sticks, in pursuing that policy. The result is a system in which both levels of government work together to achieve a common goal. If the process works well, the synergism of related federal …

The Rehnquist Court's Noninterference With The Guardians Of National Security, Gregory E. Maggs

GW Law Faculty Publications & Other Works

Based on an examination of the Rehnquist Court's national security cases decided between 1986 and 2005, this essay makes three claims. The first claim is that the Rehnquist Court generally did not interfere with the governmental units that serve as the guardians of national security. The Rehnquist Court almost always rejected challenges to governmental actions when the official responsible justified the actions based on the need to protect the United States from external threats. The second claim is that the Rehnquist Court's hands-off approach generally had favorable consequences. It promoted national security by leaving the subject to the governmental units …

Voter Identification, Spencer A. Overton

GW Law Faculty Publications & Other Works

In the wake of closely contested elections, calls for laws that require voters to present photo identification as a condition to cast a ballot have become pervasive. Advocates tend to rely on two rhetorical devices: (1) anecdotes about a couple of elections tainted by voter fraud; and (2) common sense arguments that voters should produce photo identification because the cards are required to board airplanes, buy alcohol, and engage in other activities. This Article explains the analytical shortcomings of anecdote, analogy, and intuition, and applies a cost-benefit approach generally overlooked in election law scholarship. Rather than rushing to impose a …

International Trade And Developing Countries (Introduction), Steve Charnovitz

GW Law Faculty Publications & Other Works

This article is an introduction to the Fordham International Law Journal, Volume 29, Number 2. The journal issue addresses the challenge of trade and developing countries. The most powerful countries have sound financial, political, environmental, and social reasons to promote sustainable economic growth throughout the world. Nevertheless, the policies used to do so have failed or have, in some instances, been designed in such a hypocritical way that they could not possibly succeed in their ostensible purposes. The issue offers a useful contribution to the debate about what works and does not work in promoting development.

The Relevance Of The Nlra And Labor Organizations In The Post-Industrial Global Economy, Charles B. Craver

GW Law Faculty Publications & Other Works

As the United States continues to transition from a manufacturing to a post-industrial service-oriented economy that is directly affected by global competition, the strength of domestic labor organizations has declined and private sector union membership has fallen to below 8 percent. Most unions continue to behave like the craft and industrial organizations of the mid-1900s. They employ appeals that once worked well for blue collar manufacturing workers to appeal to new-age white collar and service personnel who view traditional unionization as working class. If labor organizations hope to appeal to twenty-first century employees, they must devise strategies that will resonate …

Shareholders As Proxies: The Contours Of Shareholder Democracy, Dalia Tsuk Mitchell

GW Law Faculty Publications & Other Works

This article explores the long-standing suspicion of the individual shareholder and the corresponding ambivalence about shareholder democracy as it is seen in conversations about the shareholder's role in the modern public corporation throughout the twentieth century.

The article examines two competing conceptions of the shareholder's role in the corporation: one focuses on the role of shareholders as investors, the other emphasizes the role of shareholders as potential participants in corporate management. I argue that scholars and reformers who have conceived of shareholders as investors limited the locus of shareholder democracy to the market. The writings of Louis Brandeis, Henry Manne, …

Foster Children Awaiting Adoption Under The Adoption And Safe Families Act Of 1997, Catherine J. Ross

GW Law Faculty Publications & Other Works

This article discusses the Adoption and Safe Families Act of 1997 and how it relates to the rules created by constitutional law and federal legislation about shifting children between foster care and adoption. The article focuses on the 15/22 months rule, which provides that a state should pursue adoption for a child who has remained in foster care for fifteen of the preceding 22 months and encourages states to take action to implement the 15/22 months rule to comply with the Constitution and federal law, noting that many children in foster care will need pre-adoptive and adoptive homes.

Lost In Translation? Corporate Legal Transplants In China, Donald C. Clarke

GW Law Faculty Publications & Other Works

This essay examines an old question - why it is often so difficult for transplanted legal norms and institutions to take - with the hope of shedding a bit of new light on it through a specific focus on institutions for corporate governance in China. Foreign norms and institutions are borrowed because they seem to the borrowers to serve some need. Very often they are borrowed in a time of rapid social change in which the home culture, so to speak, is lagging behind. But the problem of fit is real and severe.

First, although the borrowers may imagine their …

Protecting Privacy Against The Police In The European Union: The Data Retention Directive, Francesca Bignami

GW Law Faculty Publications & Other Works

This essay examines the European Union's new turn towards protecting personal data against the police. The first part explores the developments that have given rise to these policies: the dramatic possibilities of today's digital technologies for the police and the intensification of police cooperation in the European Union following the terrorist attacks in New York, Madrid, and London. The second part analyzes the piece of legislation with the most significant data protection ramifications to be enacted at the time of this writing: the Data Retention Directive. The essay concludes with some thoughts on how the largely positive rights experience of …

Is It Sometimes Good To Run Budget Deficits? If So, Should We Admit It (Out Loud)?, Neil H. Buchanan

GW Law Faculty Publications & Other Works

There are bad deficits and there are good deficits. What makes a fiscal deficit good or bad depends on both the context in which the deficit is run and the reason that the deficit is rising. The belief that it is unquestionably foolish to adopt policies that directly or indirectly increase the government's annual borrowing on the financial markets - which is what it means to run a budget deficit - is not the universal truth that the current conventional wisdom might imply. Budget deficits are potentially dangerous and must be monitored carefully, but they are not always, inevitably, completely, …

Women In Post-Conflict Reconstruction: Dilemmas And Directions, Naomi R. Cahn

GW Law Faculty Publications & Other Works

A critical issue for post conflict reconstruction is moving beyond criminal prosecutions that ensure accountability of perpetrators toward a system that also serves the needs of victims. When reconstruction includes disarmament, demobilization, and reintegration (DDR) and development services, these programs cannot be separated from perpetrator responsibility. The traditional criminal justice is perpetrator-centric. Alternative forms of justice have broadened this focus, recognizing that the legal system must respond to both victims and perpetrators. Transitional justice, which focuses on responding to past human rights violations, is critical to holding violators accountable for their acts.

In addition to criminal and civil accountability (rights-based …

Poor Children: Child Witches And Child Soldiers In Sub-Saharan Africa, Naomi R. Cahn

GW Law Faculty Publications & Other Works

This paper, written for a symposium on The Mind of a Child, examines two different aspects of the accountability of children: those children who are thrown away by their families because they are sorcerers, and those children who become soldiers and, through their involvement in armed conflict, inflict violence and death on others, including children. Like all other children, both sets of children are especially vulnerable because of their developmental (im)maturity. Indeed, as policy-makers struggle to develop strategies for responding to the needs of these children, the new neuroscientific literature provides yet another basis for arguing that children must be …

The (Neglected) Employment Dimension Of The World Trade Organization, Steve Charnovitz

GW Law Faculty Publications & Other Works

A key assumption underlying the World Trade Organization (WTO) is that its program of trade negotiations will strengthen the world economy and lead to more trade, investment, employment and income growth throughout the world. In the author's view, the WTO truly is strengthening the world economy and promoting trade and investment in many parts of the world. Yet the rest of the thesis is debatable. Is it necessarily true that the WTO and the trade negotiations it sponsors are increasing employment and income growth throughout the world? Indeed, even aggregating the world economy into one planetary unit, one wonders whether …