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Government Procurement Law Perspectives: Spring 2014, Government Procurement Law Program

Government Procurement Law Perspectives

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Denying The Significance Of Race, Cynthia Lee

GW Law Faculty Publications & Other Works

In this book chapter, published in TRAYVON MARTIN, RACE, AND AMERICAN JUSTICE: WRITING WRONG (Sense Publishers 2014), Cynthia Lee analyzes the George Zimmerman trial from a critical race perspective. She analyzes why all the major legal decision makers associated with the Trayvon Martin case (judge, prosecution and defense team) were so eager to deny the significance of race. She posits that they either sincerely believed the case had nothing to do with race or thought it improper or strategically disadvantageous to acknowledge that race was relevant. The judge wanted to run a colorblind trial. The defense did not want the …

Review Essay: Reading The Dream Machine: The Untold Story Of The Notorious V-22 Osprey, By Richard Whittle, In Light Of The Defense Acquisition Performance Study, Steven L. Schooner, Nathaniel E. Castellano

GW Law Faculty Publications & Other Works

This review commends The Dream Machine to a broad range of readers, including public contracts attorneys, acquisition policy officials, contracts professionals, program managers, government procurement law students, as well as consumers of military history. It’s a remarkable story told with style. The review juxtapose some aspects of the author’s exhaustive case study of this seemingly problematic program against the Defense Department’s nascent effort to assess the performance of the Defense Acquisition System. We make no secret of our belief that DoD’s acquisition performance assessment has the potential to become one of the most significant recent developments in defense acquisition. Among …

Sex Offenses Under Military Law: Will The Recent Changes In The Uniform Code Of Military Justice (Ucmj) Re-Traumatize Sexual Assault Survivors In The Courtroom?, Lisa M. Schenck

GW Law Faculty Publications & Other Works

In 2013, the President, Secretary of Defense, and members of Congress responded with shock and outrage to perceptions of increased sex assaults committed by military personnel upon other military personnel. Politicians are considering a variety of changes to substantive and procedural criminal law to make prosecution of such offenses more effective. This Article evaluates substantive military criminal law, UCMJ art. 120, 10 U.S.C. § 920, and Military Rules of Evidence 404(a) and 405(c). Drawing on lessons learned from state and federal laws, the Article then makes recommendations regarding statutory changes in military criminal sexual assault and procedural statutes. Specifically, the …

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

GW Law Faculty Publications & Other Works

This paper, presented at the West Government Contracts Year in Review Conference (covering 2013), attempts to identify the key trends and issues in U.S. federal procurement for 2013. Consistent with prior practice, this chapter offers extensive coverage of the federal procurement spending trend and attempts to predict what lies ahead. Budgetary and financial insecurity were less significant last year, but there is no question that the spending reduction represents a meaningful change in the long-term trend. More broadly, the paper discusses agency purchasing data (particularly at the Defense Department), grants spending and major changes in uniform guidance, the continued Defense …

Musical Work Copyright For The Era Of Digital Sound Technology: Looking Beyond Composition And Performance, Robert Brauneis

GW Law Faculty Publications & Other Works

For over 150 years, federal copyright law in the United States reflected and reinforced the model ofmusic as a two-stage art of composition and performance. Copyright protected scores, the stable, visually perceptible result of the deliberative activity of composition. It did not protect performances, theevanescent, unrepeatable, purely aural realizations of scores. Even as protection was extended tomusical sound recordings, copyright law has maintained a strong distinction between composition andperformance. In the last several decades, however, developments in sound technologies and their uses by musicians and listeners have substantially undermined that distinction. Written notation often no longer figures in any stage …

Merger Control Procedures And Institutions: A Comparison Of The Eu And Us Practice, William E. Kovacic

GW Law Faculty Publications & Other Works

The objective of this paper is to discuss and compare the role that different constituencies play in US andEU procedures for merger control. We describe the main constituencies (both internal and external) involved in merger control in both jurisdictions and discuss how a typical merger case would be handled under these procedures. At each stage, we consider how the procedure unfolds, which parties are involved, and how they can affect the procedure. Our discussion reveals a very different ecology. EU andUS procedures differ in terms of their basic design and in terms of the procedures that are naturally associated with …

Proper And Improper Use Of Other Act Evidence, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

This article examines a case, United States v. Richards, 719 F.3d 746 (7th Cir. 2013), to illustrate how a prosecutor succeeded in having other act evidence admitted, obtained a conviction, and lost it on appeal. The appellate court ruled that the prosecutor erred in making a propensity argument in violation of Federal Rule of Evidence 404(b).

First Amendment Values For The Internet, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

In May 2014, the Federal Communications Commission (FCC), on the ropes from two adverse D.C. Circuit decisions, proposed the latest in a series of regulations of broadband providers--the entities that serve as the gatekeepers for all content, applications, and services on the Internet. While in recent years the FCC has sought to regulate broadband providers to impose on them the duty not to discriminate against any of the traffic flowing through their pipes, in these latest Proposed Rules--in response to the recent D.C. Circuit decision Verizon v. FCC--the FCC has sought to enable broadband providers to discriminate in favor …

The Beginning Of The End Of Internet Freedom, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

Although the Internet was initially viewed as a medium for expression in which censorship would be impossible to implement, recent developments suggest exactly the opposite. Countries around the world--democracies as well as dictatorships--have implemented nationwide filtering systems that are changing the shape of Internet freedom. In addition to usual suspects like China, liberal democracies such as the United Kingdom and Australia have taken steps to implement nationwide Internet filtering regimes. In 2013, United Kingdom Prime Minister David Cameron announced a plan to require mandatory “family friendly” default filtering of all Internet access by the end of 2014. While such Internet …

I’M Still Dancing: The Continued Efficacy Of First Amendment Precedent And Values For New-School Regulation, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

This response essay reflects on the meaning of two foundational First Amendment decisions: New York Times Co. v. Sullivan — characterized by Harry Kalven, Jr., as “an occasion for dancing in the streets”— which imposed limits on public officials’ recovery for defamation, and New York Times Co. v. United States, which reaffirmed the central First Amendment principle against prior restraints. Professor Jack Balkin characterizes these decisions as responses to “old-school speech regulation . . . [in which] the state had used penalties and injunctions directed at speakers and publishers in order to control and discipline their speech.” But, Balkin observes, …

Keeping The Internet Free In The Americas, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

To preserve and protect the Internet as a forum for the uninhibited, robust, and wide-open exchange of ideas and information in the Americas, governments must take active steps to facilitate such free speech values. The relationship between governments and Internet service providers is of pre-eminent importance in this regard, as ISPs are in the position to be the facilitators of the free flow of information and ideas. On the one hand, ISPs should not be shackled with intermediary liability for hosting harmful content. On the other hand, ISPs should not be granted the discretion to restrict communications flowing through their …

§ 9:9 Authenticating Email, Social Media, Web Pages, Text Messages, Instant Messaging, Electronic Signatures, Laird Kirkpatrick

GW Law Faculty Publications & Other Works

A particularly difficult evidentiary problem facing courts today is the proper standard for the authentication of electronic evidence or social media, such as emails, web pages, text messages, instant messaging and electronic signatures. This article analyzes the court decisions addressing these issues.

Second Amendment: Not Constitutional Dysfunction, But Necessary Safeguard, Robert J. Cottrol

GW Law Faculty Publications & Other Works

When Jim Fleming asked me to participate in this Symposium, and more specifically to be part of the Second Amendment panel, I must confess that I was a bit puzzled. There are many parts of our political and constitutional system that are arguably dysfunctional, meaning that our late-eighteenth century Constitution prevents the achievement of policy results that are desirable in our early-twenty-first century present. I do not see, however, the Second Amendment as one of those constitutional features. As a result, this Essay challenges two assumptions: first, that the Second Amendment historically has provided much of a barrier to a …

Comparative Law Study And Analysis Of National Legislation Relating To Crimes Against Humanity And Extraterritorial Jurisdiction, Arturo J. Carrillo, Annalise Nelson

GW Law Faculty Publications & Other Works

This report has three main objectives. The first is to conduct a rigorous quantitative survey of national legislation worldwide to determine the extent to which States have prohibited crimes against humanity (CAH) under domestic law. The second is to engage in a limited but illustrative qualitative analysis of CAH laws where they do exist. And finally, for those States identified as having per se CAH legislation, this report seeks to establish the extent to which it is paired with the extraterritorial jurisdiction provisions necessary to make the CAH norms most effective.

Our report concludes that the prevailing panorama of domestic …

Gifts, Hospitality & The Government Contractor, Jessica Tillipman

GW Law Faculty Publications & Other Works

The government procurement process demands the highest commitment to ethical and unbiased conduct. To ensure that the individuals involved in the procurement process adhere to these standards, government entities in nearly all jurisdictions around the world have enacted codes of conduct, ethical restrictions, and anti-corruption laws designed to protect the integrity of government and ensure that government officials act impartially and do not give preferential treatment to any private organization or individual. To further these goals, most jurisdictions have enacted restrictions on the gifts and hospitality that government officials may accept from individuals and organizations that sell goods and services …

Green Subsidies And The Wto, Steve Charnovitz

GW Law Faculty Publications & Other Works

This paper provides a detailed explanation how the law of the World Trade Organization regulates environmental subsidies with a focus on renewable energy subsidies. The paper begins by discussing the economic justifications for such subsidies and the criticisms of them and then gives examples of different categories of subsidies. Next the paper provides an overview of the relevant WTO rules and caselaw, including the recent Canada-Renewable Energy case. The paper also makes specific recommendations for how WTO law can be improved, and discusses the existing literature discussing reform proposals. The study further finds that because of a lack of clarity …

Informing The Debate About Sexual Assault In The Military Services: Is The Department Of Defense Its Own Worst Enemy?, Lisa M. Schenck

GW Law Faculty Publications & Other Works

In 2013, the Department of Defense (DoD) published its Annual Report on Sexual Assault in the Military Fiscal Year (FY) 2012, reflecting an increase in the number of sexual assaults on military personnel (extrapolated from survey responses) from 19,000 in FY 2011 to 26,000 in FY 2012. The report also provided that in FY 2012, 302 sexual assault courts-martial occurred with only 238 military personnel convicted of sexual assaults committed on military victims, resulting in an alleged conviction rate of less than 1%. Using inflammatory language and misleading statistics, some attacked the prosecution and conviction rates in the military services. …

The Failure Of Originalism In Preserving Constitutional Rights To Civil Jury Trial, Renée Lettow Lerner

GW Law Faculty Publications & Other Works

The Federal Bill of Rights and state constitutions rely heavily on procedural protections, especially jury rights. Supporters of these rights at the founding praised the jury in extravagant terms, and many members of the legal profession continue to do so today. Yet civil and criminal jury trials are vanishing in the United States. The disappearance of the civil jury presents a puzzle because the Seventh Amendment and state constitutional rights require that civil jury trial be “preserved” or “remain inviolate.”

Scholarship on the history of constitutional rights to civil jury trial has tended to focus exclusively on the Seventh Amendment, …

Probate Law Meets The Digital Age, Naomi R. Cahn

GW Law Faculty Publications & Other Works

This Article explores the impact of federal law on a state fiduciary’s management of digital assets. It focuses on the lessons from the Stored Communications Act (“SCA”), initially enacted in 1986 as one part of the Electronic Communications Privacy Act. Although Congress designed the SCA to respond to concerns that Internet privacy posed new dilemmas with respect to application of the Fourth Amendment’s privacy protections, the drafters did not explicitly consider how the SCA might affect property management and distribution. The resulting uncertainty affects anyone with an email account.

While existing trusts and estates laws could legitimately be interpreted to …

Narrow Banking As A Structural Remedy For The Problem Of Systemic Risk: A Comment On Professor Schwarcz's Ring-Fencing, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

In a recent article, Professor Steven Schwarcz describes the concept of "ring-fencing" as a "potential regulatory solution to problems in banking, finance, public utilities, and insurance." Ring-fencing has gained particular prominence in recent years as a strategy for limiting the systemic risk of large financial conglomerates (also known as "universal banks"). Professor Schwarcz’s article describes several ring-fencing plans that have been adopted or proposed in the United States, the United Kingdom, and the European Union.

This Comment argues that "narrow banking" is a highly promising ring-fencing remedy for the risks created by universal banks. As the Comment explains, narrow banking …

"The Evolution Of Employment Discrimination Law: Changed Doctrine For Changed Social Conditions ", Michael Selmi

GW Law Faculty Publications & Other Works

Times change, and when they do, the law must as well. Much of the most important employment discrimination case law was established in the 1970s during an era when discrimination was both overt and pervasive. Moving forward forty years, discrimination has receded dramatically and is no longer seen as a default explanation for workplace decisions or statistical imbalances in a workforce. At the same time, the discrimination that remains is more complex, more subtle in nature and more difficult to identify. This article explores how the Supreme Court has navigated the declining but more complex nature of employment discrimination. In …

Indiana Journal Of Law And Social Equality, Michael Selmi

GW Law Faculty Publications & Other Works

This essay reviews the Obama Administration’s civil rights record during its first Administration, with a particular focus on theCivil Rights Division of the Department of Justice and the Equal Employment Opportunity Commission (“EEOC”). The review finds that although the Obama Administration has generally been supportive of progressive causes, particularly in the Supreme Court and among issues relating to gay men and lesbians, its enforcement activities have generally been quite limited. On a quantitative basis, the Obama Administration’s civil rights enforcement typically fall at the same or below levels of the prior BushAdministration, and with a few exceptions (mortgage discrimination and …

In The Civic Republic: Crime, The Inner City, And The Democracy Of Arms—Being A Disquisition On The Revival Of The Militia At Large, Robert J. Cottrol, Raymond T. Diamond

GW Law Faculty Publications & Other Works

This Article examines the modern utility of the Second Amendment’s guarantee of “the right to keep and bear arms” in light of the phenomenon of modern crime, particularly black-on-black violence in urban America. Although many advocates of gun control have argued that crime in modern cities is a reason for modifying or severely truncating the right to have arms, the Authors argue that the right to have arms and the Second Amendment’s notion of a universal militia can be the basis of a new partnership between police and citizens in urban America. This new partnership can, if properly developed, be …

A Two-Tiered System Of Regulation Is Needed To Preserve The Viability Of Community Banks And Reduce The Risks Of Megabanks, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

The financial crisis of 2007-2009 and its aftermath have accelerated a consolidation trend that has transformed the U.S. banking system during the past three decades. During that period, the number of community banks and their share of the banking industry’s assets have fallen by more than half, while the largest banks have captured much of the industry’s assets. In responding to the financial crisis, the federal government encouraged further consolidation by adopting extraordinary assistance programs and forbearance measures designed to ensure the survival of the biggest institutions. In contrast, federal officials gave little help to community banks and subjected them …

A Concise Guide To Using Dictionaries From The Founding Era To Determine The Original Meaning Of The Constitution, Gregory E. Maggs

GW Law Faculty Publications & Other Works

This Article explains how dictionaries published in the Founding Era may provide evidence of the original meaning of the Constitution. In addition, the Article identifies and discusses six potential problems with relying on definitions from these dictionaries, and cautions that these potential problems must be considered when using Founding Era dictionaries either to make claims about the Constitution’s original meaning or to evaluate claims about original meaning made by others. Finally, the Article includes an Appendix describing nine English language dictionaries and four legal dictionaries from the Founding Era that the Supreme Court has cited in constitutional cases, and indicates …

Two Myths About The Alien Tort Statute, Bradford R. Clark, Anthony J. Bellia Jr.

GW Law Faculty Publications & Other Works

In Kiobel v. Royal Dutch Petroleum Co., the Supreme Court applied the presumption against extraterritorial application of U.S. law to hold that the Alien Tort Statute (ATS) did not encompass a claim between aliens for misconduct that occurred in another nation. Without much elaboration, the Court stated that the ATS only encompasses claims that “touch and concern the territory of the United States...with sufficient force to displace the presumption.” As it did in Sosa v. Alvarez-Machain, the Kiobel Court purported to rest its decision on the original public meaning of the ATS when enacted in 1789. The Court, however, misperceived …

The Limitation On Exclusion Of Extrinsic Evidence, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

This article mainly examines United States v. Delgado-Marrero, 744 F.3d 167 (1st Cir. 2014), to illustrate the difficulty courts still have when considering Federal Rule of Evidence 608(b)'s ban on extrinsic evidence. The prosecutor's other arguments are also examined under Federal Rules of Evidence 403 and 404(b)(1).

Litigation Finance And The Problem Of Frivolous Litigation, Michael B. Abramowicz

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Litigation finance companies have some incentives to screen plaintiffs applying for financing based on the strength of their claims, but a company may still have incentives to provide financing when the probability that a plaintiff would prevail at litigation is low. The result is that litigation finance may facilitate both meritorious and nonmeritorious claims. This Article argues that fee limitation rules for
litigation finance companies can improve their incentives to select only relatively high probability cases, thus enhancing the normative case for states to enact legal reforms allowing litigation finance. A simple version of the rule, which will work if …

Court-Agency Dialogue: Article Iii's Dual Nature And The Boundaries Of Reviewability, Emily Hammond

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Courts reviewing agency actions frequently offer more than a positive analysis of the agencies decisions. They might engage in advice-giving, for example, or emper the remedy as a way of modulating the impact of review. These actions can be used in a dialogic way, to provide normative signals to agencies. Yet because courts must judge agency actions only on the grounds provided by the agency at the time of the agency’s decision — and must ordinarily remand actions that fail to meet substantive standards of review — these normative signals require a delicate touch so as to avoid judicially imposed …