Law Commons^™

The Trans Panic Defense Revisited, Cynthia Lee

GW Law Faculty Publications & Other Works

Violence against transgender individuals in general, and trans women of color in particular, is a significant problem today. When a man is charged with murdering a transgender woman, a common defense strategy is to assert what is called the trans panic defense. The trans panic defense is not a traditional criminal law defense. Nor, despite its name, is it recognized as a stand-alone defense. Rather, trans panic is a defense strategy associated with the provocation or heat of passion defense. A murder defendant asserting trans panic will claim that the discovery that the victim was a transgender female—an individual thought …

The U.S. Federal Trade Commission Workshop On Non-Compete Clauses, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

On January 9, 2020, the FTC held a workshop on non-compete clauses. Professor Pierce wrote this article for a journal that is published in London primarily lawyers and economists in the UK and the EU. He describes the powerful evidence that supports the need for the FTC to take some action to reduce the growing trend to include non-compete clauses in many employment contracts and the difficult task the FTC faces in deciding how to address that problem.

Comment Letter In Opposition To The Occ's Proposed "Valid-When-Made" Rule, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

This comment letter responds to a proposed rule issued by the Office of the Comptroller of the Currency (OCC), which would “codify” an alleged federal common-law “principle” known as “valid-when-made.” The proposed rule would amend two of the OCC’s regulations – 12 C.F.R. 7.4001 and 12 C.F.R. 160.110 – by providing that “interest on a loan that is permissible” for a national bank or a federal savings association, under 12 U.S.C. 85 or 12 U.S.C. 1463(g)(1), “shall not be affected by the sale, assignment, or other transfer of the loan.” 84 Fed. Reg. 64229, 64230-31 (Nov. 21, 2019). Thus, the …

Sentenced To Surveillance: Fourth Amendment Limits On Electronic Monitoring, Kate Weisburd

GW Law Faculty Publications & Other Works

As courts and legislatures increasingly recognize that “digital is different” and attempt to limit government surveillance of private data, one group is conspicuously excluded from this new privacy-protective discourse: the five million people in the United States on probation, parole, or other forms of community supervision. This Article is the first to explore how warrantless electronic surveillance is dramatically transforming community supervision and, as a result, amplifying a growing privacy-protection disparity: those in the criminal legal system are increasingly losing privacy protections even while those not in the system are increasingly gaining privacy protections. The quickly expanding use of GPS-equipped …

The Combination Of Chevron And Political Polarity Will Have Awful Effects, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

In this contribution to the annual administrative law symposium sponsored by Duke Law Journal, Professor Pierce explains why he has changed his position and is now urging the Supreme Court to replace the Chevron test with the Skidmore test. He supported the Chevron test for decades because it gives politically accountable agency heads, rather than politically unaccountable judges, the power to make policy decisions and because it increases the number of federal statutes that have the same meaning in all parts of the country.

Professor Pierce now believes that the country can no longer afford the cost of the Chevron …

Competition Policy Retrospective: The Formation Of The United Launch Alliance And The Ascent Of Spacex, William E. Kovacic

GW Law Faculty Publications & Other Works

In May 2005, Boeing and Lockheed Martin announced plans to form the United Launch Alliance, a joint venture which combined the only two suppliers of medium-to-heavy national security related launch services to the U.S. government. The Federal Trade Commission reviewed the transaction’s antitrust implications and, in consultation with the Department of Defense, approved the deal in October 2006 subject to restrictions governing ULA’s relationship other satellite manufacturers and providers of launch services. The DOD endorsed the transaction on the ground that the joint venture would increase launch reliability by concentrating production and launch services in a single team rather than …

Misinformation Mayhem: Social Media Platforms’ Efforts To Combat Medical And Political Misinformation, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

Social media platforms today are playing an ever-expanding role in shaping the contours of today’s information ecosystem. The events of recent months have driven home this development, as the platforms have shouldered the burden and attempted to rise to the challenge of ensuring that the public is informed – and not misinformed – about matters affecting our democratic institutions in the context of our elections, as well as about matters affecting our very health and lives in the context of the pandemic. This Article examines the extensive role recently assumed by social media platforms in the marketplace of ideas in …

The Price Of Prevention: Anti-Terrorism Pre-Crime Measures And International Human Rights Law,, Arturo J. Carrillo

GW Law Faculty Publications & Other Works

How far can law go to prevent violent acts of terrorism from happening? This Article examines the response by a number of Western democratic States to that question. These States have enacted special legal mechanisms that can be called ‘anti-terrorist pre-crime measures.’ Anti-terrorist pre-crime measures, or ATPCMs for short, are conditions or restrictions imposed on a person by law enforcement authorities as the outcome of a legal process set up to identify and neutralize potential sources of terrorist activity before it occurs. The issue is whether the ATCPMs regimes in existence today comply with the corresponding States’ international obligations under …

Covid-19: Lessons Learned In Public Procurement. Time For A New Normal?, Laurence Folliot Lallion, Christopher R. Yukins

GW Law Faculty Publications & Other Works

The COVID-19 crisis upended markets and assumptions in public procurement, and posed an almost existential threat to traditional procurement systems. Seismic changes in economic relationships – governments were no longer monopsonists, government officials failed as economic intermediaries between suppliers and the public, and supplies that were traditionally treated as private (such as medical equipment) suddenly became “public” goods under worldwide demand. Traditional trade rules were rendered irrelevant, as the goal was no longer simply to open individual procurements but rather to open borders to intense global demand. Although the disruption was revolutionary, ironically the solution is to return to first …

Peremptory Norms Of General International Law (Jus Cogens) And Other Topics: The Seventy- First Session Of The International Law Commission, Sean D. Murphy

GW Law Faculty Publications & Other Works

This essay analyzes the outcome of the International Law Commission (ILC)’s seventy- first session, held from April 29 to June 7 and from July 8 to August 9, 2019 in Geneva, under the chairmanship of Pavel Šturma (Czech Republic). Notably, the Commission completed the first reading of its topic on peremptory norms of general international law (jus cogens). The Commission also completed the first reading of its topic on protection of the environment in relation to armed conflict and completed the second reading of its topic on crimes against humanity. Progress was also made in developing draft articles on succession …

‘Warming Up’ To Sustainable Procurement, Steven L. Schooner, Markus Speidel

GW Law Faculty Publications & Other Works

Procurement professionals will play a critical role in the belated but necessary effort to slow the pace of climate change. That critical, evolved role will lie in sustainable procurement, which, if effectively implemented, will dramatically alter markets and fundamentally change purchasing behaviors. To be effective, procurement professionals will need to rethink how we define our profession, assess our outcomes, and bring value to our government customers. Successfully establishing a sustainable procurement regime will require dramatic change, including, among other things, overcoming the persistent tyranny of low price, understanding and adopting lifecycle costing, considering externalities in the value proposition, and, of …

Outing On Outside Group Spending On Elections, Miriam Galston

GW Law Faculty Publications & Other Works

Outside spending has increased dramatically since 2010, exceeding the rate of increase of total federal campaign spending and even accounting for more spending than did the candidates in more than 120 competitive races in the last decade. This essay outlines the detrimental effects of these developments on candidates, campaigns, and institutions, e.g., an increased threat of corruption, intensified political polarization, marginalization of political parties, and increasing levels of negative advertising. Because of the rapid rate at which outside spending is increasing, the trajectory of these adverse impacts threatens the integrity of political campaigns in 2020 and future elections.

Doctrinal changes …

Modeling Settlement Bargaining With Algorithmic Game Theory, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

Past computational models of settlement bargaining have lacked explicit game theoretic foundations. Algorithmic game theory, however, offers techniques that can find perfect Bayesian equilibria even where closed-form mathematical solutions may be intractable. Some recent mathematical models tackle two-sided asymmetric information, including evidentiary signals models, in which the judgment is a sum of both shared and independent private information, and correlated signals models, in which both parties receive noisy signals about the same information. To relax assumptions inherent in these models, this paper employs several progressively more complicated techniques, including iterative elimination of dominated alternatives, no regret learning, and counterfactual regret …

The Occ's And Fdic's Attempts To Confer Banking Privileges On Nonbanks And Commercial Firms Violate Federal Laws And Are Contrary To Public Policy, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

The Office of the Comptroller of the Currency (OCC) and the Federal Deposit Insurance Corporation (FDIC) have adopted several recent measures that attempt to confer benefits and privileges of banks on nonbank providers of financial services and commercial firms. The OCC’s and FDIC’s initiatives are unlawful and dangerous because they would allow nonbanks and commercial firms to subvert fundamental public policies embodied in federal laws governing banks and bank holding companies.

In 2018, the OCC announced that it would approve national bank charters for “fintech” firms that provide lending and payment services but do not accept deposits. The New York …

The Death Of The Genus Claim, Dmitry Karshtedt, Mark A. Lemley, Sean B. Seymore

GW Law Faculty Publications & Other Works

The central feature of patent law in the chemical, biotechnology, and pharmaceutical industries is the genus claim – a patent that covers not just one specific chemical but a group of related chemicals. Genus claims are everywhere, and any patent lawyer will tell you they are critical to effective patent protection.

But as we show in this article, the law has changed dramatically in the last twenty-five years, to the point where it is no longer possible to have a valid genus claim. Courts almost always hold them invalid. Remarkably, they do this without having acknowledged that they have fundamentally …

Administrative Investigations, Aram A. Gavoor, Steven Platt

GW Law Faculty Publications & Other Works

This Article establishes the subject of federal administrative investigations as a new area of study in administrative law. While the literature has addressed investigations by specific agencies and congressional investigations, there is no general account for the trans-substantive constitutional value of administrative investigations. This Article provides such an account by exploring the positive law, agency behaviors, and constraints pertaining to this unresearched field. It concludes with some urgency that the Administrative Procedure Act of 1946—the statute that stands as a bill of rights for the Administrative State—does not serve to regulate administrative investigations and that the Article III courts have …

Graduate Level Distance Learning: Enhanced Student Experience, Significant Scalability Challenges: A Multiyear Case Study, Karen Thornton, Steven L. Schooner, Markus Speidel

GW Law Faculty Publications & Other Works

This article describes our experiences and "lessons learned" providing degree-based distance (online) education to graduate students (studying business, law, and policy related to government contracts or public procurement). Temporal note: our pilot, and the five years of experience described in this case study, predate the 2020 Coronavirus Pandemic emergency distance teaching transition.

Among other things, we discuss our experiences with regard to fundamentally rethinking our pedagogical approach, "flipping the classroom," chunking, and scaffolded learning. We extol the benefits of working with, and being open to, advice from experienced instructional designers.

We conclude that embracing distance education, at least in a …

Look Up And Around: Musings On Mentors, Role Models, And Professionalism (Revised And Updated), Steven L. Schooner

GW Law Faculty Publications & Other Works

As part of Contract Management magazine's 2020 Professional Development issue, this (revised and updated) article offers a rather simple overarching suggestion for successful professionals and future leaders: look up and around. The article encourages readers to identify mentors, embrace the strengths of their role models, and open themselves up to learn from others, evolve, and grow. The article discusses, among other things, education, networking, professional development (and, of course, writing), and the power of optimism.

The German Right To Fiscal Stability And The Counter-Majoritarian Difficulty: The Pspp Judgment Of 5 May 2020, Francesca Bignami

GW Law Faculty Publications & Other Works

The PSPP litigation involved the European Central Bank’s (ECB’s) Public Sector Purchase Programme for the purchase of government bonds on the secondary market with the aim, among others, of combating deflation. Although the Court of Justice of the EU (CJEU) found the PSPP lawful, the German Federal Constitutional Court (FCC) disagreed: On May 5, 2020, the FCC held that the CJEU’s judgment was not binding in Germany and that the PSPP was unlawful and required further ECB action to bring it into compliance with German law.

This article contributes to the growing scholarship on the PSPP litigation by analyzing the …

Equity, Punishment, And The Company You Keep: Discerning A Disgorgement Remedy Under The Federal Securities Laws, Theresa Gabaldon

GW Law Faculty Publications & Other Works

Since its inception in 1934, the Securities and Exchange Commission (the “Commission” or the “SEC”) has wielded statutory authority to seek injunctive relief for violations of the federal securities laws. Since 1970 courts have, at the Commission’s behest and without much analysis, ordered violators to disgorge profits – make that lots and lots of profits – gained in the course of their wrongdoing. In some instances, the profits are returned to victims. In others, either because the victims are too many and too scattered or because the violation is a victimless one such as engaging in bribery, the ill-gotten gains …

The Compliance Mentorship Program: Improving Ethics And Compliance In Small Government Contractors, Jessica Tillipman, Vijaya Surampudi

GW Law Faculty Publications & Other Works

Over the past decade, the anti-corruption, ethics, and compliance landscape has changed dramatically. This is a direct consequence of a global anti-corruption enforcement effort led by the United States through its enforcement of the Foreign Corrupt Practices Act. The increase in enforcement has also been spurred by the adoption of several multilateral anti-corruption agreements, such as the Organization for Economic Co-operation and Development (OECD) Anti-Bribery Convention and the United Nations Convention Against Corruption (UNCAC). These agreements have spurred several countries to enact anti-corruption laws, such as the U.K. Bribery Act, Brazil’s Clean Company Act, and France’s Loi Sapin II. The …

Effects Of The Covid-19 Pandemic On The Work Of The International Law Commission, Sean D. Murphy

GW Law Faculty Publications & Other Works

The International Law Commission (ILC) was scheduled to hold its seventy-second session from April 27 to June 5 and from July 6 to August 7, 2020 in Geneva. 1 The COVID-19 pandemic, however, precluded the Commission members traveling to and meeting in Geneva. This short essay explains that it became necessary to postpone the session until 2021 and to address various collateral matters, including whether the current five-year terms of Commission members should be extended by one year, so as to conclude in 2022 instead.

Initiative On Quality Shareholders Highlights, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

Highlights of a research initiative that formalizes the longstanding intuition that the sorts of shareholders a company attracts influences its performance. Contains lists of the best shareholders in corporate America, measured by long holding periods and high portfolio concentration, and lists of the companies that attract such shareholders in high density. Notes and explains how such shareholders and companies have been prone to outperform rivals. Explores what quality shareholders look for in companies and a dozen of the practices and policies that, evidence shows, companies can use to attract quality shareholders. Includes bibliographic references and suggestions for further research.

Brand Name Or Equal: Without "Equal," It's Not Competitive, Steven L. Schooner

GW Law Faculty Publications & Other Works

One of the more common rules in federal government procurement is that the Government may describe its needs to the private sector by specifying a “brand name” product, as long as the Government adds the words “or equal” to the brand name and articulates the product’s salient physical, functional, or performance characteristics that are essential to the Government’s needs. This broadens the potential for competition and helps reduce the government's reliance on unduly restrictive specifications.

Two recent examples - one the subject of a GAO bid protest decision, the other a recently posted commercial-item procurement - suggest that, while some …

Covid-19: Lessons Learned In Public Procurement. Time For A New Normal?, Laurence Folliot Lalliot, Christopher R. Yukins

GW Law Faculty Publications & Other Works

The COVID-19 crisis upended markets and assumptions in public procurement, and posed an almost existential threat to traditional procurement systems. Seismic changes in economic relationships – governments were no longer monopsonists, government officials failed as economic intermediaries between suppliers and the public, and supplies that were traditionally treated as private (such as medical equipment) suddenly became “public” goods under worldwide demand. Traditional trade rules were rendered irrelevant, as the goal was no longer simply to open individual procurements but rather to open borders to intense global demand. Although the disruption was revolutionary, ironically the solution is to return to first …

Probable Cause With Teeth, Cynthia Lee

GW Law Faculty Publications & Other Works

The killing of George Floyd, along with other high profile cases of police officers using fatal force against Black Americans, has led to widespread protests and prompted calls for legal reform. One criticism of the legal system is that police officers often stop, interrogate, and arrest Black Americans for activities that would rarely lead to intervention if engaged in by white individuals. This disparity calls into question whether police officers have been arresting individuals with the quantum of suspicion of wrongdoing that should be required by law.

The Fourth Amendment requires police to have probable cause that a crime has …

Enhanced Debriefings: A Toothless Mandate?, Steven L. Schooner

GW Law Faculty Publications & Other Works

This short piece discusses the (alleged) manner in which the Department of Defense (DoD) conducted the disappointed offeror's post-award debriefing following the award of the $10 billion, $10-year Joint Enterprise Defense Infrastructure (JEDI) cloud computing contracting opportunity. While the quality of DoD’s debriefing is unlikely to alter the outcome in the pending protest litigation, it seems inconsistent with policy, the current trend favoring greater transparency, and the recent Congressional mandate for “enhanced debriefings.”

The piece suggests that, consistent with decades of study and experience, debriefings make sense, but only if they are informative or, more to the point, responsive. Conversely, …

Withdrawing The United States From The Wto Government Procurement Agreement (Gpa): Assessing Potential Damage To The U.S. And Its Contracting Community, Christopher R. Yukins

GW Law Faculty Publications & Other Works

The Trump administration is mulling an executive order that would trigger U.S. withdrawal from the WTO Agreement on Government Procurement (GPA), according to reports from Bloomberg and POLITICO. Withdrawal from the GPA would deprive U.S. suppliers of a key point of access to public procurement markets internationally, under a world-wide agreement which has set global standards and opened over a trillion dollars annually in business opportunities. See, e.g., Anderson et al., “Assessing the Value of Future Accessions to the WTO Agreement on Government Procurement (GPA): Some New Data Sources, Provisional Estimates, and An Evaluative Framework for Individual WTO Members Considering …

Comments Of Richard J. Pierce, Jr. On Promoting The Rule Of Law Through Transparency And Fairness In Civil Administrative Enforcement And Adjudication Docket Number Omb-2019-0006, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

On January 30, 2020, OMB published a Notice entitled “on Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication.” OMB solicited comments by March 16 on the issues raised by eleven questions. The wording of the Notice and President Trump’s reference to it in his State of the Union address strongly suggest that the President plans to use the record created by the Notice as the basis for an Executive Order in which he will limit in many ways the actions that agencies can take in investigations and enforcement proceedings.

In these comments, Professor …

The Case For Empowering Quality Shareholders, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

Abstract Anyone can buy stock in a public company, but not all shareholders are equally committed to a company’s long-term success. In an increasingly fragmented financial world, shareholders’ attitudes toward the companies in which they invest vary widely, from time horizon to conviction. Faced with indexers, short-term traders, and activists, it is more important than ever for businesses to ensure that their shareholders are dedicated to their missions. Today’s companies need “quality shareholders,” as Warren Buffett called those who “load up and stick around,” or buy large stakes and hold for long periods. While scholars in recent years have extensively …