Law Commons^™

Tax Experimentation, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

Random experiments could allow the government to test tax policies before enactment into general law. Such experiments can be revenue-neutral, with the tax authority ensuring ex post that average tax revenues received from taxpayers in the treatment and control groups are equal. Taxpayers might thus volunteer even for experiments that would broaden the tax base, for example by eliminating deductions. Continued participation by taxpayers in such experiments would indicate that the proposed reforms are efficient at least if externalities are disregarded. Non-revenue-neutral experiments raise greater concerns about horizontal inequity, but may be helpful in addressing questions about effects of tax …

Prize And Reward Alternatives To Intellectual Property, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

This chapter surveys the literature on alternatives to intellectual property, focusing especially on alternatives to patent law, but with some attention as well to copyright. It does not consider the question whether intellectual property rights are justified, but assumes that absent some form of governmental innovation, inventions and works of authorship might be underproduced relative to the social optimum. The chapter thus considers how institutions besides traditional property rights compare relative to one another and to traditional intellectual property systems. The chapter considers only briefly the possibility that government itself might produce inventions and works of authorship or that government …

Originalism And Structural Argument, Thomas Colby

GW Law Faculty Publications & Other Works

The "new originalism" is all about the text of the Constitution. Originalists insist that the whole point of originalism is to respect and follow the original meaning of the text, and that originalism derives its legitimacy from its unwavering focus on the text alone as the sole basis of higher law. And yet, many leading Supreme Court decisions in matters of great importance to conservatives—in opinions authored and joined by originalist judges, and often praised by originalist scholars—are seemingly not grounded in the constitutional text at all. They rest instead on abstract structural argument: on freestanding principles of federalism and …

Why Is Mississippi The Best State In Which To Be Exonerated? An Empirical Evaluation Of State Statutory And Civil Compensation For The Wrongfully Convicted, Jeffrey Gutman, Lingxiao Sun

GW Law Faculty Publications & Other Works

Wrongful conviction has for decades been a subject of academic study, litigation, and policy reform, but its more recent reach into popular culture is reflected in an array of books, documentaries, podcasts, movies, and TV shows. In both non-fiction and fiction, the theme of wrongful conviction marries a traditionally American revulsion of profound injustice with the captivation of the police procedural, dirty cops, forensic evidence, and the relentless fortitude of incarcerated innocents and their heroic lawyers.

The innocence movement lies at this intersection between law and popular imagination. As the attendance at the 2018 Innocence Network Conference attests, the energy …

§ 8:91 Public Records—Forensic Laboratory Reports, Christopher B. Mueller, Laird Kirkpatrick

GW Law Faculty Publications & Other Works

This article discusses the admissibility of forensic reports under Federal Rule of Evidence 803(8) and under the Confrontation Clause of the Sixth Amendment of the Constitution. It analyzes whether they are "testimonial" for the purpose of the Crawford doctrine and when the analyst must be produced to be cross-examined. It also discusses who from the forensic laboratory must be called to admit a forensic report. It discusses the constitutional requirements set forth in Crawford v. Washington, Bullcoming v. New Mexico, and Williams v. Illinois.

An Empirical Assessment Of Agency Mechanism Choice, David L. Markell, Robert L. Glicksman, Justin Sevier

GW Law Faculty Publications & Other Works

Administrative agencies rely heavily on the foundational legal mechanisms of the administrative state – rulemaking, licensing, and enforcement adjudication – to pursue their statutory objectives. These foundational mechanisms differ from each other in critical ways, including the applicable procedures (and the participatory rights that accompany them), the legal effect of their use, and the nature and extent of oversight (including judicial oversight) that accompany their use. As a result, an agency’s choice of which mechanism(s) to use to implement its statutory mission has significant impacts on key legitimizing features and values of the administrative state.

This Article helps to fill …

The Impact Of Citizen Environmental Science In The United States, George Wyeth, Lee C. Paddock, Alison Parker, Robert L. Glicksman, Jecoliah Williams

GW Law Faculty Publications & Other Works

An increasingly sophisticated public, rapid changes in monitoring technology, the ability to process large volumes of data, and social media are increasing the capacity for members of the public and advocacy groups to gather, interpret, and exchange environmental data. This development has the potential to alter the government-centric approach to environmental governance; however, citizen science has had a mixed record in influencing government decisions and actions. This Article reviews the rapid changes that are going on in the field of citizen science and examines what makes citizen science initiatives impactful, as well as the barriers to greater impact. It reports …

Ali Data Privacy: Overview And Black Letter Text, Daniel J. Solove, Paul M. Schwartz

GW Law Faculty Publications & Other Works

In this Essay, the Reporters for the American Law Institute Principles of Law, Data Privacy provide an overview of the project as well as the text of its black letter. The Principles aim to provide a blueprint for policymakers to regulate privacy comprehensively and effectively.

The United States has long remained an outlier in privacy law. While numerous nations have enacted comprehensive privacy laws, the U.S. has clung stubbornly to a fragmented, inconsistent patchwork of laws. Moreover, there long has been a vast divide between the approaches of the U.S. and European Union (EU) to regulating privacy – a divide …

Are There Universal Standards For Network Neutrality?, Arturo J. Carrillo

GW Law Faculty Publications & Other Works

The regulation of the Internet in general, and network neutrality in particular, has become a priority for many governments around the globe. The United States is no exception. It enacted new rules protecting net neutrality in 2015 and then famously undid them in 2017. Other countries similarly struggle to regulate net neutrality effectively, including Brazil, India and those that comprise the European Union. Most national debates of net neutrality policy tend to be fractious affairs. There is deep disagreement surrounding the best way to approach the issue. In previous work, I have shown how the design and implementation of net …

#Metoo, Wrongs Against Women, And Restorative Justice, Laurie S. Kohn

GW Law Faculty Publications & Other Works

This article considers the allegations that have surfaced against high-profile perpetrators as a sample of the range of accusations raised generally through the #MeToo movement and analyzes the current responses available to redress the wrongs identified. The civil and criminal justice systems provide legal responses to sexual assault and harassment; social media and traditional media have also come to play a responsive role in this movement. The article considers the efficacy of both systems in delivering the resolutions we seek and analyzes the pros and cons of media justice and its potential for delivering just and desirable outcomes for victims …

#Metoo Meets The Ministerial Exception: Sexual Harassment Claims By Clergy And The First Amendment's Religion Clauses, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (2012), the Supreme Court unanimously held that the Religion Clauses of the First Amendment create a “ministerial exception” to certain employment laws. The ministerial exception bars claims by clergy of wrongful dismissal by religious institutions. In the years before Hosanna-Tabor, however, courts had ruled in four prominent decisions – two state, and two federal – that suits by clergy for sexual harassment
based on a pervasively hostile environment could go forward, notwithstanding the ministerial exception. The rise of the #MeToo movement invites new and more detailed consideration of the tension between …

Supreme Court Brief Of Amicus Curiae Richard J. Pierce, Jr. In Support Of Neither Party, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

This amicus brief was filed in Forest Service v. Cowpasture River Preservation Ass'n, Supreme Court Docket Number 18-1584. The question in the case is whether the Forest Service can authorize a natural gas pipeline to be constructed to pass under the Appalachian Trail. Professor Pierce takes no position on that issue. He urges the Court to consider the context in which the question arises. He argues that an inexpensive and abundant supply of natural gas is essential to enable effective mitigation of climate change.

Contractual Tax Reform, Michael B. Abramowicz, Andrew `Blair-Stanek

GW Law Faculty Publications & Other Works

One-size-fits-all taxation fails to accommodate diverse taxpayer circumstances. This Article proposes allowing taxpayers to contract into alternative tax regimes administered by private intermediaries. Participating taxpayers would make payments to the intermediaries pursuant to contract, and the intermediaries would be required to pay to the government at least as much as these taxpayers would have paid the government otherwise. That amount is determined based on the actual tax receipts of a control group, taxpayers who wish to contract with an intermediary but instead are chosen at random to continue under the status quo. These alternative tax regimes might better accommodate taxpayers’ …

The Marketplace Of Ideas Online, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

One hundred years ago, in the 1919 case of Abrams v. United States, Justice Oliver Wendell Holmes, Jr. ushered into existence modern First Amendment jurisprudence by introducing the free trade in ideas model of free speech. According to this model, the ultimate good is reached by allowing speakers to engage in the free trade in ideas—free of government intervention in the way of regulation, censorship, or punishment. Ideas must be allowed to compete freely in an unregulated market, and the best ideas will ultimately get accepted by competing with others in this marketplace. As such, government intervention is unnecessary …

Buckley 2.0: How Would The Buckley Court Decide Buckley Today?, Miriam Galston

GW Law Faculty Publications & Other Works

If you read Supreme Court campaign finance cases, you will be struck by the disconnect between the lofty rhetoric used to justify the constitutional protections afforded political speech and the impoverished sound bites and hyperbolic attack ads that dominate contemporary electoral communications. The origin of this disconnect is in large part two phenomena. First, in the last decade the Court has failed to take the factual record seriously and, as a result, makes generalizations that are belied by contemporary campaign practices. Relatedly, the Court has adopted doctrines that co-exist in uneasy relationships with campaign finance doctrines of longstanding. As a …

Boiling Down Boilerplate In M&A Agreements: A Response To Choi, Gulati, & Scott, Robert Anderson, Jeffrey Manns

GW Law Faculty Publications & Other Works

No abstract provided.

Blockchain-Based Insurance, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

To date, the insurance industry's interest in the blockchain has focused largely on the possibility of recording insurance entitlements in a transparent way. While the blockchain may produce significant efficiencies of this sort, it has considerably greater transformative potential. Smart contracts could serve as a substitute for insurance companies, conventionally conceived. Such contracts could perform the function of deciding whether claims should paid, without the need for or possibility of judicial intervention. The blockchain and smart contracts are difficult to regulate, because ownership and decisionmaking can be decentralized. Blockchain-based insurance may successfully provide a means of avoiding expensive regulation and …

Dismantling The Trusts And Estates Canon, Naomi R. Cahn

GW Law Faculty Publications & Other Works

This Article steps back and reflects on how new perspectives from gender, race, class, and sexual orientation have challenged existing trusts and estates canonical narratives on a number of different levels, both in terms of deepening trusts and estates but also expanding it—that is, challenging core concepts of the field. Part I celebrates how new perspectives have challenged the core trusts and estates canonical narratives. These new perspectives challenge basic concepts of wealth and do the following: 1) bring in alternative conceptions of wealth and of inheritance; 2) question the biases of inheritance law as they reflect conventional social norms; …

Grading Trump's China Trade Strategy, Steve Charnovitz

GW Law Faculty Publications & Other Works

Although much has been written about the ongoing trade war between China and the United States from 2017 to early 2019, this literature omits detailed examination of the substance of the US trade complaints about China. This article seeks to fill that gap in the literature by unpacking the 20 most prominent complaints that are being levelled by the Trump Administration. The article finds that half of the complaints involve behaviour that is contrary to WTO rules and yet the Trump Administration has lodged only three WTO cases against that behaviour. The Trump Administration justifies this omission on the ground …

Can A Sitting President Be Federally Prosecuted? The Founders' Answer, W. Burlette Carter

GW Law Faculty Publications & Other Works

Can a sitting U.S. President be federally indicted or prosecuted? Exploring the history of impeachment and prosecution in (1) England and Great Britain, (2) colonial America, and (3) the states immediately after independence--and comparing these to the Founders' Constitutional discussions--this article considers how the Founders would have answered that question, were it posed to them today. Deviating from most analyses of the problem, it argues that the Founders would have viewed the question as jurisdictional, involving a conflict between Courts of Law on the one hand, and the Congress -- operating as a High Grand Jury (the House) and a …

The International Law Origins Of American Federalism, Anthony J. Bellia Jr., Bradford R. Clark

GW Law Faculty Publications & Other Works

Courts and commentators have long struggled to reconcile robust federalism doctrines with the text of the Constitution. These doctrines include state sovereign immunity, the anti-commandeering doctrine, and the equal sovereignty of the States. Supporters of such doctrines have generally emphasized the history, structure, and purpose of the Constitution over its precise text. Critics of such doctrines have charged that they lack adequate support in the Constitution and are the product of improper judicial activism. This Article reconciles federalism and textualism by looking to a surprising source—international law. The Constitution contains numerous references to “States”—a term of art drawn from the …

Introduction To The Essays Of Warren Buffett: Lessons For Corporate America, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

This is Professor Cunningham's Introduction to his renowned edited collection of Warren Buffett's famous letters to shareholders of Berkshire Hathaway Inc. The collection was originally prepared for a symposium held in New York City in 1997 and has been regularly updated through five editions, with additional Buffett material and Cunningham annotations. This Introduction, from the fifth edition (2019), serves as an encapsulation of the main themes of the resulting collection and locates them in contemporary debates on matters of corporate governance; corporate finance and investing; mergers and acquisitions; and accounting and taxation.

Digital Asset Planning For Minors, Natalie Banta, Naomi R. Cahn

GW Law Faculty Publications & Other Works

No abstract provided.

The Scope Of The Removal Power Is Ripe For Reconsideration, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

This article was requested by The Judges Journal for inclusion in a symposium devoted to the status of administrative law judges. Professor Pierce argues that the scope of the removal power is ripe for review; the Supreme Court should hold that the president must have the power to remove all officers with executive responsibilities at will to allow the president to perform the functions vested in the president by Article II; and the Court should hold that due process requires that officers with purely adjudicative functions must be insulated from potential control by the president by forbidding their removal without …

Modern Military Justice: Cases And Materials, Lisa M. Schenck

GW Law Faculty Publications & Other Works

This textbook is about the modern military justice system of the United States. It covers court-martial procedures, substantive criminal law, and nonjudicial punishment under the Uniform Code of Military Justice, in addition to the Military Extraterritorial Jurisdiction Act, which gives federal courts jurisdiction over certain acts committed abroad. The Third Edition includes several recent cases and updates that address the significant changes made in the 2019 Manual for Courts-Martial, the Military Justice Act of 2016, and other recent legislation.

The Very Brief History Of Decentralized Blockchain Governance, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

An emergent form of blockchain governance involves the use of formal games that give participants incentives to identify focal resolutions to normative questions. This symposium contribution provides a brief survey of the literature proposing and critiquing the use of such mechanisms, and it evaluates early laboratory and real-world experiments with this approach to decentralized decisionmaking.

Emerging Policy And Practice Issues (2018), Steven L. Schooner, David Berteau

GW Law Faculty Publications & Other Works

This paper/chapter, presented at the Thomson Reuters Government Contracts Year in Review Conference (covering 2018), attempts to identify the key evolving trends and issues in U.S. federal procurement for 2018 and beyond. Consistent with prior practice, this chapter offers extensive coverage of the federal procurement, grant, and defense spending trends and attempts to predict what lies ahead, particularly with regard to legislative and executive activity. This year's paper discusses, among other things, the high degree of uncertainty currently being experienced in the public procurement sphere, dramatic increases to the micro-purchase and simplified acquisition thresholds, the work of the Congressionally-mandated Section …

Can Global Legal Pluralism Be Both "Global" And "Pluralist"?, Paul Schiff Berman

GW Law Faculty Publications & Other Works

The scholarly project of global legal pluralism seems to contain a conundrum at its core. How can any theory of law be focused on pluralism and multiplicity and at the same time claim to be a “global” theory? This conundrum helps explain the criticism global legal pluralism receives from committed pluralists on the one hand and from committed international law triumphalists on the other. The pluralists argue that the normative side of global legal pluralism, by emphasizing procedures and institutions that foster dialogue and interaction, is essentially recapitulating

a universalist liberal legality and therefore is not fundamentally pluralist at all. …

Suspension And Debarment In The U.S. Government: Comparative Lessons For The Eu’S Next Steps In Procurement, Christopher R. Yukins, Michal Kania

GW Law Faculty Publications & Other Works

Governments may exclude vendors from procurement awards for many reasons, including poor performance and corruption. Excluding a vendor, whether from a particular procurement (deciding that the vendor is not qualified for award) or from an entire procurement system (suspending or debarring the vendor), calls for a complex assessment of the performance and reputational risks posed by that vendor, and of the costs of exclusion. As the EU’s Member States shape their exclusion systems consistent with the EU’s procurement directives, the Member States may wish to draw on U.S. strategies for managing risks in contractor qualification: requiring that contractors establish strong …

The Admissibility Of Forensic Reports In The Post-Justice Scalia Supreme Court, Laird Kirkpatrick

GW Law Faculty Publications & Other Works

Forensic reports apparently linking a defendant to a crime often constitute the most powerful and persuasive evidence that can be offered at a criminal trial. Yet the Supreme Court is sharply divided about the constitutional requirement for admitting such reports under the Confrontation Clause. In the three cases addressing this question the Court divided 5-4 in its first two decisions and 4-4-1 in its most recent opinion. In a recent dissent to the denial of a Petition for a Writ of Certiorari in Stuart v. Alabama, Justice Gorsuch noted that the Court’s opinions on this question “have sown confusion in …