Law Commons^™

Sas Institute Inc. V. Iancu: The Statute Is Hereby Clear, Andrew Michaels

GW Law Faculty Publications & Other Works

The Supreme doorkeeper has spoken: the statute is clear, and that's the law.

Section 809 And “E-Portal” Proposals, By Cutting Bid Protests In Federal Procurement, Could Breach International Agreements And Raise New Risks Of Corruption, Christopher R. Yukins, Daniel Ramish

GW Law Faculty Publications & Other Works

Bid protests -- vendors’ challenges to contracting officials’ errors, either before or after award -- have been an established part of federal procurement for at least a century. Protests (sometimes called “challenges” or “remedies proceedings” abroad) are a recognized bulwark against corruption in the United States, and have become a standard part of procurement systems around the world, often at the urging of the United States. But new proposals being considered for U.S. government procurement in practice could dramatically limit bid protests, in the name of streamlining the procurement process. This drastic change to U.S. procurement practices could violate international …

The World Bank's Procurement Framework: An Assessment Of Aid Effectiveness, Christopher R. Yukins, Sope Williams-Elegbe

GW Law Faculty Publications & Other Works

In 2016, the World Bank formally implemented a massive reform of the guidance it applies to procurements conducted under World Bank-financed projects. Because of the prominent role that the World Bank plays in shaping procurement policy, the Bank’s procurement reforms have had a profound impact on procurement in many countries around the world. This piece, a draft chapter in the forthcoming Public Procurement and Aid Effectiveness: A Roadmap Under Construction (Annamaria La Chimia & Peter Trepte, eds., Hart Publishing 2018), reviews the World Bank's Procurement Framework, including its approaches to procurement methods, bid challenges (complaints), country-system procurement, capacity-building and oversight. …

Indefinite-Delivery/Indefinite-Quantity Contracts: Time To Correlate Practice And Policy?, Steven L. Schooner

GW Law Faculty Publications & Other Works

This short piece discusses recent Government Accountability Office (GAO) data chronicling an increase in the Defense Department's reliance on indefinite-delivery/indefinite-quantity (or IDIQ) contracts. The data also indicates that, despite the clearly established preference for multiple awards, about three-quarters of the IDIQ awards made by DoD were to a single contractor, rather than multiple contractors.

Based on GAO's data, the essay describes the dramatic difference between current IDIQ practice and the process described in the the regulations, including the Federal Acquisition Regulation (FAR) and the supplemental regulations promulgated by DoD (including the DFARS and the PGI).

The essay concludes with two …

Should The Court Change The Scope Of The Removal Power?, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

In this essay Professor Pierce argues that the Court should use a strict functional approach in its ongoing process of changing the scope of the power of the president to remove officers. He maintains that the Court can reconcile the potentially conflicting commands of Article II and due process by holding that the president must have unlimited power to remove any officer who can make policy decisions on behalf of the government, but that due process limits the power of the president to remove an officer whose sole responsibility is to adjudicate disputes between private parties and the government.

Law School Clinics And The Untapped Potential Of The Court Watch, Jessica K. Steinberg

GW Law Faculty Publications & Other Works

This is a time of enormous creativity and innovation in civil access to justice. It is now widely recognized that scarcity is reality in the provision of legal services and that overburdened and technologically retrograde courts are struggling to meet the demands of case processing in a fair and efficient manner. Accompanying the proliferation of various interventions is a growing call for empirical research on civil access to justice. Recently, the idea that law school clinics might serve as sites or architects of a civil justice research agenda has been advanced.

Building on these proposals, this Article suggests that “court …

From Town Square To Twittersphere: The Public Forum Doctrine Goes Digital, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

Government officials like President Donald J. Trump and Maryland Governor Larry Hogan are increasingly using popular social media sites like Twitter and Facebook to connect and interact with their constituents and to solicit public comment on matters of public importance – whether on officially-designated government platforms (like https://www.facebook.com/GovLarryHogan/) or on unofficial platforms used for the same purposes. In recent years, government officials have increasingly turned to social media platforms like Twitter and Facebook in place of (and in addition to) actual town halls and other real-space forums to solicit public participation in policy formulation and to engage with their constituents. …

§4.35 Evidence Of Similar Offenses In Sexual Assault And Child Molestation Cases, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the admissibility of evidence of prior similar offenses in sexual assault and child molestation cases under FRE 413 and 414. It discusses the purposes for which such evidence may be offered, the balancing required under FRE 403, and the roles of judge and jury.

§4.25 Civil Settlement Offers Generally Excluded, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the admissibility of settlement offers and settlement discussions under FRE 408. It discusses the requirement that the claim must be disputed and a party must intend to make an offer of compromise. The rule applies to settlements with third parties and also to criminal cases.

§4.23 Subsequent Remedial Measures Generally Excluded, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

Mueller, Christopher B. and Kirkpatrick, Laird C. and Richter, Liesa, §4.23 Subsequent Remedial Measures Generally Excluded (2018). C. Mueller, L. Kirkpatrick, & L. Richter, Evidence §4.23 (6th ed. Wolters Kluwer 2018); GWU Law School Public Law Research Paper No. 2018-57; GWU Legal Studies Research Paper No. 2018-57. Available at SSRN: https://ssrn.com/abstract=3275024

§1.7 Evidence Errors—Harmless, Christopher B. Mueller, Laird Kirkpatrick, Lisea Richter

GW Law Faculty Publications & Other Works

This article discusses when evidentiary error is harmless. It addresses the Kotteakos guidelines and the competing standards set forth by courts. It also addresses the several ways by which evidentiary error may be cured at trial.

§1.5 Offers Of Proof, Christopher B. Mueller, Laird Kirkpatrick, Lisea Richter

GW Law Faculty Publications & Other Works

This article discusses when offers of proof are required and the different methods by which they may be made. It discusses the requirement that they be made outside the jury’s presence and that repeating offers are often unnecessary.

§7.7 Reliability Standard (Daubert, Frye), Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the Daubert standard of reliability for the admission of scientific evidence. It also addresses the requirements of FRE 702, which was amended after Daubert to impose a reliability standard for all expert testimony. It discusses the implications of this requirement, the scope of review, and the conflict among state authorities about the applicable standard for admitting scientific evidence or expert testimony generally.

§6.31 Excluding Felonies For Unfair Prejudice, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the scope of impeachment under 609(a)(1) which allows impeachment of witnesses by prior felony convictions subject to a balancing test. It discusses the different standards of balancing for ordinary witnesses as compared to criminal defendants and the factors that should be considered in such balancing.

§5.35 Psychotherapist-Patient Privilege, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the psychotherapist-patient privilege which was recognized by the Supreme Court in Jaffee v. Redmond. The privilege covers licensed social workers as well as licensed psychiatrists and psychologists. The articles discusses the scope of the privilege and exceptions to it.

§5.32 Marital Confidences Privilege, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the marital confidences privilege. This privilege applies to confidential communications by spouses made during the course of their marriage. The privilege continues even after the termination of the marriage. The privilege protects communications only, but includes conduct that is communicative in nature. Under the prevailing view, both spouses hold the confidences privilege.

§5.12 Communication, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses what is a “communication” for purposes of the attorney-client privilege. It notes that observations, as distinguished from communications, are generally not privileged, but that when observations are a form of confidential communication they are privileged. The article discusses the trend toward a two-way privilege that covers communications from the lawyer to the client as well as from the client to the lawyer.

Anniversary Commemoration And Work Of The International Law Commission’S Seventieth Session, Sean D. Murphy

GW Law Faculty Publications & Other Works

This essay analyzes the outcome of the seventieth session of the U.N. International Law Commission held in the summer of 2018 in New York and Geneva. Notably, the Commission completed on second reading two topics: subsequent agreements and subsequent practice in relation to the interpretation of treaties; and identification of customary international law. The Commission completed on first reading two further topics: protection of the atmosphere; and provisional application of treaties. Progress was also made in developing draft conclusions on peremptory norms of general international law (jus cogens), draft principles on protection of the environment in relation to armed conflict, …

Global Legal Pluralism As A Normative Project, Paul Schiff Berman

GW Law Faculty Publications & Other Works

Legal pluralists have long recognized that societies consist of such multiple overlapping normativecommunities. These communities are sometimes state based but sometimes not, and they are sometimes formal, official, and governmental, but again sometimes they are not. Scholars studying interactions among these multiple communities have often used the term “legal pluralism” to describe the inevitable intermingling of these normative systems.

In recent decades, a new application of pluralist insights has emerged in the international and transnational realm. This new legal pluralism research was born in the decades following the collapse of the bipolar Cold War order in 1989. During this period, …

Response To Professor Farber’S “Regulatory Review In Anti-Regulatory Times”, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

This is a response to an article by Professor Dan Farber presented in a symposium about the Trump Administration and Administrative Law at Chicago-Kent School of Law. After agreeing with Professor Farber’s description, analysis and critique of the Trump Administration’s use and abuse of cost benefit analysis as an aid in making regulatory decisions, Professor Pierce makes four points: (1) President Trump will fail to implement his deregulatory agenda; (2) EPA’s proposed rule on transparency of scientific evidence is a good start on an important project; (3) the Clean Power Plan is a lost cause; and, (4) The Trump Administration …

Law & Entrepreneurship In Global Clinical Education, Susan Jones, Janet Thompson Jackson

GW Law Faculty Publications & Other Works

As clinical legal education (CLE) continues to evolve and prepare practice-ready lawyers, and governments worldwide focus on the multilayered impact of technology, automation and artificial intelligence, there is a pressing need to examine law and entrepreneurship through the lens of global clinical legal education. The range of issues include: corporate social responsibility, disruptive technologies, microbusiness, social entrepreneurship, social impact investing, the creative economy, sustainable local economies, cooperatives and shared work, and inclusive entrepreneurship.

Indeed, new legal entities like benefit corporations and low profit limited liability companies (L3Cs) have emerged to address contemporary legal needs and in the United States. the …

How American Rejectionism Undermines International Economic Law, Steve Charnovitz

GW Law Faculty Publications & Other Works

The completion of the Trump Administration’s first two years is an appropriate moment to take stock of the United States of America’s aggressive international economic policies. The Trump Administration is carrying out a new form of American rejectionism powered by four horsemen of economic instability: first, the rejection of the international rule of law; second, the rejection of open markets; third, the rejection of economic peace in favour of perpetual economic war; and fourth, the rejection of the global interest. The analysis herein shows how these four rejectionist policies are harming the United States, other countries, and the global order. …

Bifurcating Settlements, Michael B. Abramowicz, Sarah Abramowicz

GW Law Faculty Publications & Other Works

In settling a lawsuit, parties agree on their obligations to one another, but they need not separately address each issue, claim, or remedy that a trial court would have confronted. The legal system, however, can bifurcate the settle-ment process, requiring separate resolution of components of a settlement. Bi-furcation can protect third parties, for example, by preventing divorcing parents from trading child custody for money. In addition to identifying a wide range of contexts in which preventing trade-offs may be desirable, this Article shows that bifurcation will generally have only modest (and sometimes beneficial) effects on settlement rates.

The Golden Years, Gray Divorce, Pink Caretaking, And Green Money, Naomi R. Cahn

GW Law Faculty Publications & Other Works

This Article considers the impact of changing family structures on aging in contemporary America. It looks at two critical and interrelated aspects of aging—economic security and caretaking—and offers policy suggestions on how to improve the financial stability of and caretaking possibilities for elders. The core thesis is that our current social, legal, and economic structure for growing old is organized around the nuclear family with respect to both caretaking and financial security. As family structures change in terms of partnering (and re-partnering and non-partnering) and number of children, and with the increase in economic inequality, support for old age needs …

Human Rights Extraterritoriality: The Right To Privacy And National Security Surveillance, Francesca Bignami, Giorgio Resta

GW Law Faculty Publications & Other Works

This chapter focuses on the international right to privacy and national security surveillance by spy agencies. It assesses the extent to which the law of the United States and Europe (EU and ECtHR) afford extraterritorial protection for the right to privacy, in furtherance of the international human right to privacy. The chapter concludes that U.S. law draws a stark line between insiders (U.S. citizens and permanent residents) and outsiders, and affords significantly more protection for insiders. On the European side, even though the EU does not have jurisdiction internally over spy agencies, it does have the power to regulate foreign …

How Perris V. Hexamer Was Lost In The Shadow Of Baker V. Selden, Zvi S. Rosen

GW Law Faculty Publications & Other Works

Perris v. Hexamer stands out as case that is equal parts important and forgotten. It is obviously important – it is one of a preciously small number of Supreme Court decisions on the idea/expression dichotomy, but it is mostly forgotten in favor of the Court’s decision the following year in Baker v. Selden. It is equally obscure – Westlaw counts 2,703 citations of Baker v. Selden, and 81 of Perris v. Hexamer. Yet the subject matter of both decisions is surprisingly similar, and these cases tell us far more when considered in tandem than when either one is considered on …

The Constitutional Case For Chevron Deference, Jonathan R. Siegel

GW Law Faculty Publications & Other Works

Prominent figures in the legal world have recently attacked the doctrine of Chevron deference, suggesting that Chevron is unconstitutional because it interferes with a court’s duty to exercise “independent judgment” when interpreting statutes. This Article shows that Chevron’s critics are mistaken. Chevron deference, properly understood, does not prevent courts from interpreting statutes. An interpretation that concludes that a statute delegates power to an executive agency is still an interpretation. The power implicitly delegated to an agency by an ambiguous statute is not the power to interpret the statute, but the power to make a policy choice within the limits set …

Legal Jurisdiction And The Deterritorialization Of Data, Paul Schiff Berman

GW Law Faculty Publications & Other Works

Electronic data—everything from e-mails and text messages to Facebook and Instagram posts to Twitter pronouncements to drone warfare data to search algorithms to financial transactions to cloud data storage—travels around the globe with little relationship to physical territory. In addition, all of this data is often in the custody and control of data intermediaries such as Google, Facebook, Twitter, Apple, Microsoft, Amazon, private military contractors, and so on.

Three important consequences flow from this ubiquitous technology-enabled, data-driven global societal activity. First, the territorial location of data becomes increasingly arbitrary and substantively unimportant. If I, as a U.S. citizen based in …

Supreme Court Brief Amicus Curiae Of Administrative Law Scholars In Support Of Neither Party, Richard J. Pierce Jr, Robert L. Glicksman, Emily Hammond, Alan B. Morrison, Jonathan R. Siegel

GW Law Faculty Publications & Other Works

This brief on behalf of 29 administrative law scholars takes no position on whether Administrative Law Judges (ALJs) are employees or inferior officers. It urges the Court to issue an opinion that respects the decision that Congress made unanimously in 1946 to enact numerous statutory safeguards that assure that ALJs have decisional independence from the agencies where they work while assuring that agencies retain control over the policy content and legal basis for any decision made in an adjudication in which an ALJ presides.

The brief describes the fifteen years of study and deliberation that led to the unanimous decision …

The Utility And Limits Of Canons Of Construction In Public International Law, Sean D. Murphy

GW Law Faculty Publications & Other Works

This draft chapter, for a volume that considers canons of construction and other interpretive principles in public international law, considers the utility and limits of such canons, drawing in part upon lessons learned from schools of American jurisprudence (formalism, realism, pragmatism) with respect to statutory interpretation. In international law, there are certain obligatory canons of construction that have been expressly incorporated in Articles 31 and 32 of the Vienna Convention on the Law of Treaties. These canons are essential elements of the interpretive process; while in any given context, one or the other of these elements might be favored, they …