Law Commons^™

The Right Objection, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

Crafting the right objection to evidence presented at trial is important both to win an evidence fight and to preserve an issue for appeal. This article examines United States v. Davis, 596 F.3d 852 (D.C. Cir. 2010) to illustrate just how difficult making the right objection can be.

Biblical Literalism And Constitutional Originalism, Peter J. Smith, Robert W. Tuttle

GW Law Faculty Publications & Other Works

Critics of constitutional originalism have often described originalists as “fundamentalists” or “literalists” as a way of discrediting originalism. This comparison has obvious rhetorical force because it tends implicitly to taint originalism with guilt by association, given views in the academy of Protestant fundamentalism. But originalism’s critics are not the only ones who appear to have noticed the similarities between the two interpretive approaches; when they have entered the arena of policy and judicial politics, proponents of biblical literalism have generally embraced originalism as the correct approach to constitutional interpretation.

It is not surprising that both critics of constitutional originalism and …

Aggregate Litigation: Critical Perspectives, Roger H. Trangsrud

GW Law Faculty Publications & Other Works

While aggregate litigation has become an integral part of the U.S. civil justice system, it is often the cause of intense controversy among the private bar, the bench, and the academy. In 2009, the American Law Institute completed a project on the Principles of the Law of Aggregate Litigation, whose goal was to identify good procedures for handling aggregate lawsuits. The completion of these Principles spurred a host of reactions from attorneys, judges, and scholars. At a symposium hosted by The George Washington University Law School, the questions that were posed included: What is the optimal level of aggregation? When …

Venture Capital Investment And Small Business Affiliation Rules: Why A Limited Exception Is Crucial To Economic Recovery Efforts, Jessica Tillipman, Damian Specht

GW Law Faculty Publications & Other Works

Small businesses and venture capital are a natural pair. While many small businesses are born of technical expertise and innovation, few are well financed. One of the reasons for this lack of financing is that small concerns are often viewed as risky investments. Small businesses are rarely led by experienced business people and, as many statistics demonstrate, are more likely than not to fail. Unlike their under financed counterparts, venture capital companies (“VCCs”) are well financed and what they lack in technical capability, they make up for in business acumen and financial wherewithal. Moreover, risky investments with large upsides are …

A Random Walk: The Federal Circuit’S 2010 Government Contracts Decisions, Steven L. Schooner

GW Law Faculty Publications & Other Works

This Article discusses the Federal Circuit's 2010 government contracts cases. It begins with some perspective on, and empirical quantification of, the Federal Circuit’s level of specialization and evolving jurisprudence in the field of government contracts. It eventually turns to analysis of a hodge-podge of unrelated cases: three award controversies (or bid protests), a handful of post award performance disputes, a few selections from the ongoing behemoths of litigation in the U.S. Court of Federal Claims - Winstar and Spent Nuclear Fuel, and a potentially analogous implied warranty case. Overall, the article suggests that the Federal Circuit's 2010 government contracts cases …

The Long And Winding Road: Developing An Online Research Curriculum, Jessica L. Clark, Nicole Evans Harris

GW Law Faculty Publications & Other Works

In the realm of online research instruction, electronic research vendors (such as LexisNexis and Westlaw) play various roles in teaching and training law students. Some students take advantage of all free training opportunities, while others ignore even mandatory trainings assigned as supplemental course instruction through a first-year legal writing program. This article details the results of a cooperative initiative among a law professor, a librarian, and the Westlaw and LexisNexis academic account managers, designed to integrate online research instruction into the first-year curriculum. The multiple goals of the initiative included taking advantage of the vendors’ expertise and resources, reinforcing lessons …

The Impact Of Labor Unions On Worker Rights And On Other Social Movements, Charles B. Craver

GW Law Faculty Publications & Other Works

Labor unions have been in existence for over two hundred years, initially as craft organizations, and more recently as industrial and service organizations. During their existence they have significantly enhanced the wages and fringe benefits of represented workers through the collective bargaining process, and indirectly affected the wages and benefits enjoyed by nonunion employees whose employers provided them with such benefits to preclude their unionization. Unions have also provided members with job security through just cause disciplinary limitations and grievance-arbitration procedures. Over the past sixty years, many social movements have employed union tactics to advance other critical issues such as …

The Model Business Corporation Act At Sixty: Shareholders And Their Influence, Lisa M. Fairfax

GW Law Faculty Publications & Other Works

In the sixty years since the Committee on Corporate Laws (Committee) promulgated the Model Business Corporation Act (MBCA), there have been significant changes in corporate law and corporate governance. One such change has been an increase in shareholder activism aimed at enhancing shareholders’ voting power and influence over corporate affairs. Such increased shareholder activism (along with its potential for increase in shareholder power) has sparked considerable debate. Advocates of increasing shareholder power insist that augmenting shareholders’ voting rights and influence over corporate affairs is vital not only for ensuring board and managerial accountability, but also for curbing fraud and other …

The Uneasy Case For The Inside Director, Lisa M. Fairfax

GW Law Faculty Publications & Other Works

In the wake of recent scandals and the economic meltdown, there is nearly universal support for the notion that corporations must have independent directors. Conventional wisdom insists that independent directors can more effectively monitor the corporation and prevent or otherwise better detect wrongdoing. As the movement to increase director independence has gained traction, inside directors have become an endangered species, relegated to holding a minimal number of seats on the corporate board. This Article questions the popular trend away from inside directors by critiquing the rationales in favor of director independence, and assessing the potential advantages of inside directors. This …

Board Diversity Revisited: New Rationale, Same Old Story?, Lisa M. Fairfax

GW Law Faculty Publications & Other Works

Recently, board diversity advocates have relied on market- or economic-based rationales to convince corporate America to increase the number of women and people of color in the boardroom, in lieu of moral or social justifications. This shift away from moral or social justifications has been deliberate, and it stems from a belief that corporate America would better respond to justifications that centered on the corporate bottom line. However, recent empirical data reveals that despite the increased reliance on, and apparent acceptance of, market- or economic-based rationales for board diversity, there has been little change in actual board diversity. This Article …

Throwing Precaution To The Wind: Nepa And The Deepwater Horizon Blowoutthrowing Precaution To The Wind: Nepa And The Deepwater Horizon Blowout, Robert L. Glicksman, Sandra Zellmer, Joel Mintz

GW Law Faculty Publications & Other Works

On April 20, 2010, BP’s Deepwater Horizon oil platform blew up. Eleven workers were killed in the explosion. When the platform sank to the bottom of the Gulf of Mexico two days later, oil erupted out of the riser - a 5,000-foot pipe connecting the platform to the well on the ocean floor. After a number of failed attempts to stop the leak, BP eventually capped the well in July, three months after the explosion. Nearly 5,000,000 barrels of oil were released into the Gulf, making the Deepwater Horizon the largest offshore oil spill in world history. In this paper, …

Package Bombs, Footlockers, And Laptops: What The Disappearing Container Doctrine Can Tell Us About The Fourth Amendment, Cynthia Lee

GW Law Faculty Publications & Other Works

In the 1970s, the Court announced in a series of cases that police officers with probable cause to believe contraband or evidence of a crime is within a container must obtain a warrant from a neutral, detached judicial officer before searching that container. In requiring a search warrant, the Container Doctrine put portable containers on an almost equal footing with houses, which enjoy unquestioned Fourth Amendment protection.

This Article demonstrates that the Container Doctrine is fast becoming a historical relic as the Court expands the ways in which law enforcement officers can search containers without first obtaining a warrant issued …

Calling Law A 'Profession' Only Confuses Thinking About The Challenges Lawyers Face, Thomas D. Morgan

GW Law Faculty Publications & Other Works

It is appropriate to want lawyers to be mature, moral people and to help legal education reinforce those qualities. It is also appropriate to be sure students understand lawyers’ fiduciary responsibilities and the ways lawyers fall short of meeting them. It only confuses work on those issues, however, to call them part of teaching "professionalism." Law is not a "profession" as that term has traditionally been used. Calling law a profession does not help understanding the challenges lawyers face.

What Should We Do About Administrative Law Judge Disability Decisionmaking?, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

The Social Security Advisory Board, the Congressional Budget Office, and independent researchers at MIT and the University of Maryland have concluded that the Social Security disability programs have become excessively generous and fiscally unsustainable. The percentage of the population that has been determined to be disabled has doubled, the cost of the programs has increased over four-fold, and the programs are predicted to have exhausted their funding sources by 2018. All of the studies attribute the looming crisis in this area in large measure to Social Security Administration (SSA) Administrative Law Judges (ALJs).

In this article, Professor Pierce argues that …

An Empirical Study Of Judicial Review Of Agency Interpretations Of Agency Rules, Richard J. Pierce Jr, Joshua A. Weiss

GW Law Faculty Publications & Other Works

In this essay, Pierce and Weiss report the results of a study of judicial review of agency interpretations of agency rules. Prior studies found that, while courts at all levels uphold about 70% of agency actions, the Supreme Court upholds 91% of agency interpretations of agency rules. Pierce and Weiss find that lower courts do not confer this type of super deference on agency interpretations of agency rules. District courts and circuit courts uphold 76% of such agency actions. That is within the range of the findings of prior studies of judicial review of other types of agency actions and …

‘Nothing But Wind’? The Past And Future Of Comparative Corporate Governance, Donald C. Clarke

GW Law Faculty Publications & Other Works

Corporate law scholarship has come a long way since Bayless Manning some four decades ago famously pronounced it dead. Not only has doctrinal scholarship continued its project of critique and rationalization, but empirical and economic approaches have injected new life into the field.

Recent years have seen the rise of comparative corporate governance (CCG) as an increasingly mainstream approach within the world of corporate governance studies. This is a function partly of an increasing international orientation on the part of legal scholars and partly of an increasingly empirical turn in corporate law scholarship generally. Different practices in other jurisdictions present …

Constitutional Law: A Contemporary Approach, Gregory E. Maggs, Peter J. Smith

GW Law Faculty Publications & Other Works

Constitutional Law: A Contemporary Approach (2d ed. 2011) is a textbook written by Professors Gregory E. Maggs and Peter J. Smith (both of the George Washington University Law School) and published by West (ISBN-13: 9780314273550).

The second edition of the textbook, which is suitable either for a one- or two-semester course, strives to make constitutional law easily teachable and readily accessible for students. The authors have selected the cases very carefully and provided fuller versions of the opinions so that students get a good sense of the Court's reasoning. Text boxes call the students' attention to important aspects of each …

Desiderata: Objectives For A System Of Government Contract Law, Steven L. Schooner

GW Law Faculty Publications & Other Works

This brief paper - presented at a symposium presented for a developing nation engaged in drafting of a government procurement law - offers a diverse menu of aspirations frequently mentioned in the context of public purchasing. This paper introduces nine goals frequently identified for government procurement systems: (1) competition; (2) integrity; (3) transparency; (4) efficiency; (5) customer satisfaction; (6) best value; (7) wealth distribution; (8) risk avoidance; and (9) uniformity. The exercise of identifying aspirations is important, particularly because it is difficult for legislators or policymakers to articulate what they hope to achieve through a buying regime. While no system …

‘They Saw A Protest’: Cognitive Illiberalism And The Speech-Conduct Distinction, Donald Braman, Dan M. Kahan, David A. Hoffman, Danieli Evans, Jeffrey J. Rachlinski

GW Law Faculty Publications & Other Works

“Cultural cognition” refers to the unconscious influence of individuals’ group commitments on their perceptions of legally consequential facts. We conducted an experiment to assess the impact of cultural cognition on perceptions of facts relevant to distinguishing constitutionally protected “speech” from unprotected “conduct.” Study subjects viewed a video of a political demonstration. Half the subjects believed that the demonstrators were protesting abortion outside of an abortion clinic, and the other half that the demonstrators were protesting the military’s “don’t ask, don’t tell” policy outside a campus recruitment facility. Subjects of opposing cultural outlooks who were assigned to the same experimental condition …

Randomizing Law, Michael B. Abramowicz, Ian Ayers, Yair Listokin

GW Law Faculty Publications & Other Works

Governments should embrace randomized trials to estimate the efficacy of different laws and regulations. Just as random assignment of treatments is the most powerful method of testing for the causal impact of pharmaceuticals, randomly assigning individuals or firms to different legal rules can help resolve uncertainty about the consequential impacts of law. We explain why randomized testing is likely to produce better information than nonrandom evaluation of legal policies and offer guidelines for conducting legal experimentation successfully, considering a variety of obstacles, including ethical ones. Randomization will not be useful for all policies, but once government gains better experience with …

Visa As Property, Visa As Collateral, Eleanor Marie Brown

GW Law Faculty Publications & Other Works

Although the "tragic choice" framework has not been applied in the context of U.S. immigration law, current immigration policy is rife with tragic choices, defined as a commitment by policy elites to maintaining certain illusions which shield from public view tough policy choices that offend deeply held values. Take, for example, the issue of commodification of visas. Policy makers remain committed to maintaining the historical illusion that U.S. visas are open to well-deserving migrants, and are not being "sold" Yet U.S. immigration practice has long made concessions to commodification at the margins. Indeed, some migrants “pay” very high prices to …

The Myth Of Buick Aspirin: An Empirical Study Of Trademark Dilution By Product And Trade Names, Robert Brauneis, Paul J. Heald

GW Law Faculty Publications & Other Works

Trademark dilution is a highly controversial cause of action that has been the subject of hundreds of law review articles, but no significant scientific work. We analyze 60 years of telephone white pages, corporate & LLC naming data, advertisements from the New York Times, Wall Street Journal, and Washington Post, state and federal trademark databases, and all recorded dilution litigation. Our data suggest strongly that famous trademarks are frequently borrowed for use as trade names in services, but almost never as trade marks on products. Given that Congress based anti-dilution legislation on the assumption that uses like Buick Aspirin were …

Trademark Infringement, Trademark Dilution, And The Decline In Sharing Of Famous Brand Names: An Introduction And Empirical Study, Robert Brauneis, Paul J. Heald

GW Law Faculty Publications & Other Works

This article provides an introduction to the study of brand-name sharing, and presents results from an empirical study of sharing rates among 131 famous brand names from 1940 through 2010, conducted through an examination of business names in the white pages telephone directories of Chicago, Philadelphia, and Manhattan. Perhaps the most dramatic finding of the study is that independent uses of the 131 brand names – that is, uses of those names by businesses other than those that made the names famous – have declined from 3000 to 1380 between 1960 and 2010, a 54% drop. The article then assesses …

Comments On The Normative Challenge Of Environmental “Soft Law”, Dinah L. Shelton

GW Law Faculty Publications & Other Works

This paper describes the increased presence of non-binding soft law in international environmental law and begins by listing the possible uses of a “non-binding normative instrument.” Next, the paper describes the relationship between soft law and customary international law and notes that soft law may result in subsequent codification of those principles or interpret existing treaty obligations. The paper then contemplates why states are utilizing soft law in international environmental law and discusses issues regarding compliance with non-binding soft law. The paper concludes that the complicated nature of the international system prevents a prediction of the extent to which states …

Self-Determination In Regional Human Rights Law: From Kosovo To Cameroon, Dinah L. Shelton

GW Law Faculty Publications & Other Works

This article discusses the right to self-determination in Africa and America and begins by examining the right to self-determination in regional human rights treaties. No treaty in the Inter-American system provides a right to self-determination; however, the African Charter provides a right to self-determination, which I attribute to its history of colonization and apartheid. Next, the article describes secession claims made in Africa, starting in 1995 and discusses self-determination of indigenous and tribal groups by analyzing case law from the Inter-American system and the African Commission. The article concludes that these regions have established the framework for self-determination and must …

Environmental Protection And Human Rights, Dinah L. Shelton, Donald K. Anton

GW Law Faculty Publications & Other Works

This book concentrates on the relationship between human rights and the environment. The first chapter provides the framework for the book’s analysis and begins by defining “environment” and noting recent changes to environmental conditions and their causes, such as reduced biodiversity and increased population and resource consumption. The first portion of the chapter concludes by suggesting actions such as removing financial incentives for over-consumption of limited economic resources, that could improve the current environmental trends.

International Law And Domestic Legal Systems: Incorporation, Transformation, And Persuasion (Introduction), Dinah L. Shelton

GW Law Faculty Publications & Other Works

This book discusses developments in international law and their relationship to national legal systems. The introduction of the book notes that countries who received their independence from authoritarian regimes are more receptive to international law. A country may adopt either a monist approach to international law, where it considers international law part of its domestic law, or a dualist approach, in which a country separates its national law from international law. The introduction then proceeds to identify sources of international law, including treaties and countries’ methods of complying, customary international law, and declarations. The introduction concludes by noting the increasing …

Masculinities And Child Soldiers In Post-Conflict Societies, Naomi R. Cahn, Dina Francesca Haynes, Fionnuala D. Ni Aolain

GW Law Faculty Publications & Other Works

A fairly substantial amount of literature has been generated over the years regarding the forms of masculinity that emerge in times of armed conflict and war. This war-focused literature (which links to, among other things, masculinities studies) has drawn from broader theoretical research identifying an organic link between patriarchy, its contemporary manifestations, and various forms of masculinity as they arise within societies and institutions. It builds on, and extends, the more general scholarship that has deepened our understanding of how masculinities are constructed and differentiated. While the war literature has made significant conceptual and practical use of the term "masculinity" …

The Pii Problem: Privacy And A New Concept Of Personally Identifiable Information, Daniel J. Solove, Paul M. Schwartz

GW Law Faculty Publications & Other Works

Personally identifiable information (PII) is one of the most central concepts in information privacy regulation. The scope of privacy laws typically turns on whether PII is involved. The basic assumption behind the applicable laws is that if PII is not involved, then there can be no privacy harm. At the same time, there is no uniform definition of PII in information privacy law. Moreover, computer science has shown that in many circumstances non-PII can be linked to individuals, and that de-identified data can be re-identified. PII and non-PII are thus not immutable categories, and there is a risk that information …

Problems In Environmental Protection And Human Rights: A Human Right To The Environment, Dinah L. Shelton

GW Law Faculty Publications & Other Works

This "case study" was intended to be included in Anton & Shelton, Environmental Problems and Human Rights (Cambridge, 2011), but space limitations forced its omission from the printed text. The assertion of a human right to a healthy environment has persisted over the last 40 years. Here we examine the international guarantees and national guarantees that have developed. We also look at moves toward a Declaration on Human Rights and the Environment.