Law Commons^™

Authentication And Hearsay: Which Trumps?, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

This article addresses the relationship between two federal rules of evidence: Rules 104(a) and 104(b) and which standards a trial judge should apply in admitting hearsay evidence when its authentication is in question. Focusing on United States v. Harvey, 117 F.3d 1044 (7th Circ. 1997) and a simple hypothetical, the article concludes that evidence must be authenticated under Rule 104(b) as well as satisfying the hearsay rule and Rule 104(a).

An Overview Of Privacy Law, Daniel J. Solove, Paul M. Schwartz

GW Law Faculty Publications & Other Works

Chapter 2 of PRIVACY LAW FUNDAMENTALS provides a brief overview of information privacy law – the scope and types of law. The chapter contains an historical timeline of major developments in the law of privacy and data security.

PRIVACY LAW FUNDAMENTALS is a distilled guide to the essential elements of U.S. data privacy law. In an easily-digestible format, the book covers core concepts, key laws, and leading cases.

Professors Daniel Solove and Paul Schwartz clearly and concisely distill all relevant information about privacy law into this short volume. PRIVACY LAW FUNDAMENTALS is designed to be like Strunk and White’s Elements …

New Mechanisms For Punishing Atrocities Committed In Non-International Armed Conflicts, Sean D. Murphy

GW Law Faculty Publications & Other Works

Three core crimes have emerged as a part of the jurisdiction of international criminal tribunals: war crimes; genocide; and crimes against humanity. Only two of these crimes (war crimes and genocide) have been addressed through a global treaty that requires States to prevent and punish such conduct and to cooperate among themselves toward those ends. Yet crimes against humanity may be more prevalent than either genocide or war crimes, and are a recurrent feature in non-international armed conflicts (NIACs).

As such, a global convention on prevention, punishment, and inter-State cooperation with respect to crimes against humanity appears to be a …

Gpa Accession: Lessons Learned On The Strengths And Weaknesses Of The Wto Government Procurement Agreement, Christopher R. Yukins, Johannes S. Schnitzer

GW Law Faculty Publications & Other Works

Many member nations of the World Trade Organization (WTO) have joined the Government Procurement Agreement (GPA), a plurilateral agreement which aims to open public procurement markets. Joining the agreement reflects a commitment to international free trade, and to the rule of law in public procurement. A revised version of the GPA entered into force in 2014, and incorporated many amendments intended to make it easier for developing nations join the GPA. Among other things, the revised GPA now allows developing nations acceding to the GPA to open their public procurement markets more slowly, various transitional measures. This article reviews those …

The Puzzle Of Alfarabi's Parallel Works, Miriam Galston

GW Law Faculty Publications & Other Works

Scholars disagree about the correct interpretation of Alfarabi’s Political Regime and Virtuous City, treatises that have striking similarities, yet notable differences. For some, the treatises encapsulate Alfarabi’s philosophy; for others, they express only politically salutary opinions. Both interpretations fail to explain why he wrote parallel works. If both reflect Alfarabi’s genuine philosophic doctrines, why did he compose separate but parallel treatises, both written when his philosophy was mature? Alternatively, if the treatises are political or rhetorical, why did Alfarabi compose two versions, and why did he choose these two accounts rather than others? To answer these questions, I discuss several …

The Price Of Paid Prioritization: The International And Domestic Consequences Of The Failure To Protect Net Neutrality In The United States, Arturo J. Carrillo, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

This article examines the international trade and human rights obligations of the United States as they relate to net neutrality to determine the extent to which the approach adopted by the Federal Communications Commission (FCC) in 2015 to promote an open Internet complies with those obligations. In March of that year, the FCC adopted new rules to promote and protect an open Internet that, inter alia, reclassified broadband providers as common carriers subject to nondiscrimination obligations and codified strong net neutrality protections. The authors argue that the 2015 FCC Order, contrary to its predecessors, largely meets the requirements of the …

Book Review: Casting Off The Canon: Family Law Reimagined, Laurie S. Kohn

GW Law Faculty Publications & Other Works

Jill Hasday's book, Family Law Reimagined, offers a clear-eyed vision of what family law is, what it is not, and where it might be headed. Hasday considers family law's canon-the set of principles by which we have come to characterize family law-and then debunks the canon by methodically setting forth each notion and illustrating its inaccuracies or limitations. In doing so, Hasday urges the reader to clear the noise of the canon and to see the law in all its messy inconsistencies and shortcomings.

Hobby Lobby And The Dubious Enterprise Of Religious Exemptions, Ira C. Lupu

GW Law Faculty Publications & Other Works

The experience of the past fifty years, culminating in Burwell v. Hobby Lobby Stores, Inc., is grounds for deep skepticism of any sweeping regime of religious exemptions. Part I of this essay locates the problem in the current legal and cultural moment, which includes religious objections to employer-provided contraceptive care for women, and religion-based refusals by wedding vendors and others to facilitate the celebration of same sex marriages. Part II broadens the time frame to analyze the regimes of religious exemption – federal and state, constitutional and statutory -- in which such disputes play out. Such regimes will tend …

Eyes On The Prize, Head In The Sand: Filling The Due Process Vacuum In Federally Administered Contests, Steven L. Schooner, Nathaniel E. Castellano

GW Law Faculty Publications & Other Works

The article introduces readers to the recent proliferation of federal prize contests, which sovereigns have employed, albeit sporadically, since the mid-sixteenth century to incentivize breakthrough innovation. In the past decade, the federal government’s use of prize contests has skyrocketed, which makes sense in an era of constrained government resources. Prize contests offer seemingly unlimited potential to break through existing technological barriers at less expense than traditional innovation incentivizing tools such as contracts, grants, and patents. But that upside potential comes at a cost.

For every ebullient prizewinner, there are potentially innumerable “losers,” many of whom feel wronged, exploited, or, at …

Whither/Wither Alimony?, June Carbone, Naomi R. Cahn

GW Law Faculty Publications & Other Works

Can alimony be saved? Historically, alimony protected women's dependence during marriage. The most fundamental challenge for its continuation therefore rests on reconciling alimony with an era in which the majority of women, including 71% of mothers with children under 18, are in the labor market. This requires reconsideration of the nature of marriage, not just as a partnership ideal, which arguably it has long been, or as a relationship between equals, which has emerged more recently, but as an integrated part of a new economic model. This review of The Marriage Buyout by Cynthia Starnes assesses her justification for the …

Emerging Policy And Practice Issues (2015), Steven L. Schooner

GW Law Faculty Publications & Other Works

This paper, presented at the West Government Contracts Year in Review Conference (covering 2014), attempts to identify the key trends and issues in U.S. federal procurement for 2014. 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 (which, this year, was highlighted by Executive Order activity). The paper discusses, in addition to data, changes to OFPP and DoD leadership and the continued Defense Department Better Buying Power Initiative (now in version 3.0) and acquisition performance measurement …

Public Procurement Law: Key International Developments In 2014 — Part I: An American Perspective On The New European Public Procurement Directives, Christopher R. Yukins

GW Law Faculty Publications & Other Works

The year 2014 saw major developments in European public procurement law, as a number of new procurement directives finally came into force. This paper focuses on the two elements of the new European Union procurement directive, 2014/24/EU, most likely to affect the U.S. procurement community: new flexibility in the use of best-value negotiations, and expanded grounds for excluding potential contractors, for corruption or otherwise. The paper also will discuss how the new procurement directive may affect ongoing trade negotiations, especially between the United States and Europe under the Transatlantic Trade and Investment Partnership (TTIP).

Peer-To-Peer Law, Built On Bitcoin, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

Bitcoin is a protocol promoted as the first peer-to-peer institution, an alternative to a central bank. The decisions made through this protocol, however, involve no judgment. Could a peer-to-peer protocol underpin an institution that makes normative decisions? Indeed, an extension to the Bitcoin protocol could allow a cryptocurrency to make law. Tacit coordination games, in which players compete to identify consensus issue resolutions, would determine currency ownership. For example, an issue might be whether a cryptocurrency-based trust should disburse funds to a putative beneficiary, and the game’s outcome would resolve the question and result in gains or losses for coordination …

The Regulatory Contract In The Marketplace, Emily Hammond, David Spence

GW Law Faculty Publications & Other Works

For decades, energy policy has struggled to reconcile two distinct visions for the future: the first seeks ever-more-competitive, efficient, and dynamic electricity markets; while the second seeks an ever-greener mix of electricity generation sources. Caught within this push-and-pull dynamic is the regulatory contract — a nineteenth-century concept that stands more for ordered regulation than competitive markets. This Article examines how piecemeal pursuit of two energy visions has produced mismatches between rapidly evolving markets and governance institutions that cannot change as quickly. To better evaluate these mismatches, the Article develops a framework that accounts not just for market operation and environmental …

Mandatory Disclosure: A Case Study In How Anti-Corruption Measures Can Affect Competition In Defense Markets, Christopher R. Yukins

GW Law Faculty Publications & Other Works

In the U.S. defense procurement market, regulators require contractors to make “mandatory disclosures” if principals at those firms determine, after due review, that there is credible evidence that the firms engaged in certain crimes (fraud, bribery or gratuities), civil fraud, or significant overpayment by the government. Failure to make such a mandatory disclosure, required by clause and by regulation, can lead to (among other things) the debarment of the contractor -- a potentially devastating result. Mandatory disclosure is a natural extension of a separate requirement, that contractors maintain effective corporate compliance and ethics systems, and the Defense Department’s largest prime …

Berkshire's Disintermediation: Buffett's New Managerial Model, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

Berkshire Hathaway, among history’s largest and most successful corporations, shuns middlemen; its chairman, the legendary investor Warren Buffett, excoriates financial intermediaries. The acquisitive conglomerate rarely borrows money, retains brokers, or hires consultants. Its governance is lean, using an advisory board and bucking all forms of corporate bureaucracy. Berkshire’s shareholders also minimize the roles of intermediaries like stockbrokers and stock exchanges by trading little and holding for lengthy periods.

By exploring Berkshire’s antipathy to intermediation, this article supports the view that public policy ought to make considerable room for companies to define their own internal business practices and that more companies …

Demand Side Reform In The Poor People’S Court, Jessica K. Steinberg

GW Law Faculty Publications & Other Works

A crisis in civil justice has seized the lowest rungs of state court where the great majority of American justice is meted out. Nineteen million civil cases are filed each year in the so-called “poor people’s court,” and seventy to ninety-eight percent of those matters involve an unrepresented litigant who is typically low-income and often a member of a vulnerable population. This Article challenges the predominant scholarly view in favor of “supply side” remedies for improving access to justice—that is, remedies focused exclusively on supplying counsel to litigants, either through adoption of “civil Gideon,” a universal civil right to counsel, …

Judge Bork’S Remarkable Adherence To Unremarkable Principles Of National Security Law, Gregory E. Maggs

GW Law Faculty Publications & Other Works

The late Judge Robert H. Bork is usually remembered as an eminent jurist and scholar in the fields of antitrust law and constitutional law. His judicial opinions and his writings, especially The Antitrust Paradox1 and The Tempting of America,2 are certainly standards in these areas. Judge Bork, however, also deserves acclaim for his contributions to other fields of law. One extremely important subject, in which Judge Bork’s judicial work has received little attention, is the law pertaining to national security and U.S. foreign relations. This essay discusses Judge Bork’s opinions in four important D.C. Circuit cases: Demjanjuk v. Meese,3 Persinger …

China’S Legal System And The Fourth Plenum, Donald C. Clarke

GW Law Faculty Publications & Other Works

The Chinese Communist Party (CCP) Central Committee’s Fourth Plenum, held in October 2014, was its first meeting specifically devoted to the legal system, and as such attracted much from those interested in Chinese law. But the official Decision of the Fourth Plenum does not represent a conversion to the ideology of rule of law. Even if the leadership were to desire the system of accountability and institutionalized restraint on government that is generally understood by the term “rule of law,” it could not be accomplished any time soon and would require changes in entrenched features of the current political and …

The Financial Industry's Plan For Resolving Failed Megabanks Will Ensure Future Bailouts For Wall Street, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

The high-risk business model of large financial conglomerates (frequently called “universal banks”) was an important cause of the financial crisis. Universal banks rely on cheap funding from deposits and shadow banking liabilities to finance their speculative activities in the capital markets. By combining deposit-taking and short-term borrowing with underwriting, market making, and trading in securities and derivatives, the universal banking model creates a strong likelihood that serious problems occurring in one sector of the financial industry will spread to other sectors. To prevent such contagion, federal regulators have powerful incentives to bail out universal banks and protect all of their …

Brief Of Amicus Curiae Professor W. Burlette Carter In Support Of Neither Party: Obergefell V. Hodges; Deboer V. Snyder; Tango V. Haslam; Bourke V. Beshear, W. Burlette Carter

GW Law Faculty Publications & Other Works

Comparisons to bans on interracial marriage and bans on same-sex marriage are not neat comparisons. Loving was procreation-related. Before Loving, bans on slaves marrying and nonrecognition of interracial relationships in slavery were all procreation-related. Identifiability is no benefit for blacks but was and is a means for targeting blacks for racial oppression.

Historically, it is indisputable that marriage was heterosexual under the common law. The founders knew about same sex marriages, but considered them not to be legal. When such relationships were respected, they were treated as private contracts between consenting adults. Sometimes, however, even with consent, they were …

Dawn Of The Intercontinental Sniper: The Drone's Cascading Contribution To The Modern Battlefield's Complexity: A Re-View Essay Of Predator: The Secret Origins Of The Drone Revolution, By Richard Whittle, Steven L. Schooner, Nathaniel E. Castellano

GW Law Faculty Publications & Other Works

This review essay discusses a unique book that chronicles the UAV (unmanned aerial vehicle) or "drone" revolution with a focus on the Predator weapon system. Although brought to market by a mainstream publisher, the book offers a thought-provoking, heavily researched, non-fiction case study involving national security, defense acquisition, and international law. We congratulate author Richard Whittle for crafting a thrilling and highly informative history of technological innovation, government contracting, and weapons system development and deployment, while introducing complex issues of national security and international law, that nonetheless left us eagerly anticipating a forthcoming action movie.

This review essay introduces prospective …

Next Generation Compliance, David L. Markell, Robert L. Glicksman

GW Law Faculty Publications & Other Works

Enforcement has long been a central component of the Environmental Protection Agency’s (EPA) administration of the nation’s environmental laws. EPA’s latest Strategic Plan identifies as one of the Agency’s five strategic goals protecting human health and the environment by enforcing laws and assuring compliance. Yet, outside observers and the Agency itself have identified a series of longstanding as well as emerging challenges to effective enforcement.

EPA has responded to these criticisms and challenges by embarking on what it terms a “transformative” enforcement initiative, which it calls Next Generation Compliance (“Next Gen”). Cynthia Giles, Assistant Administrator for OECA, has emphasized that …

Employment Discrimination Class Actions After Wal-Mart V. Dukes, Michael Selmi, Slyvia Tsakos

GW Law Faculty Publications & Other Works

The Supreme Court’s decision in Wal-Mart v. Dukes was widely seen as a game-changer with the likely effect of making employment discrimination class certifications more difficult. This Symposium contribution explores the effects of that decision through recent court interpretations. We find that, although class filings appear to be down, the decision did not alter the certification landscape nearly as much as had been feared. Courts have readily distinguished the Wal-Mart decision by focusing on its nationwide scope and it appears that certification decisions have not materially changed in light of the decision. One notable change is that defense counsel have …

Modern Military Justice: Cases And Materials, 2d Edition (2015), Gregory E. Maggs, 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 non-judicial punishment under the Uniform Code of Military Justice, in addition to the Military Extraterritorial Jurisdiction Act, which gives the federal courts jurisdiction over certain acts committed abroad, and the Military Commissions Acts of 2006 and 2009, which created military tribunals for trying enemy beligerents. The Second Edition includes several recent cases and addresses some of the significant changes that Congress has recently made to the Uniform Code of Military Justice and that the President has made to the …

Transatlantic Privacy Regulation: Conflict And Cooperation, Francesca Bignami, Giorgio Resta

GW Law Faculty Publications & Other Works

This article analyzes the past twenty years of data privacy disputes between the European Union and the United States, beginning with Safe Harbor in the late 1990s and concluding with the Schrems judgment in 2015. We argue that the recurring transatlantic disputes and the difficulty in reaching a stable political compromise can be explained by fundamental differences in privacy law between the two jurisdictions. The comparison with EU law brings out four important characteristics of U.S. law: constitutional law has relatively little to say in the policy area of data privacy; the substantive limits in statutory law on data collection, …

The Us Legal System On Data Protection In The Field Of Law Enforcement. Safeguards, Rights And Remedies For Eu Citizens, Francesca Bignami

GW Law Faculty Publications & Other Works

At the request of the LIBE Committee of the European Parliament, this study surveys the U.S. system of data protection in the field of federal law enforcement. Since the legal category of “data protection” does not formally exist in U.S. law, the study begins by setting out the substantive and procedural requirements of EU law that are canvassed in the context of information-gathering and surveillance by U.S. law enforcement agencies. The study then analyzes the data protection law governing federal agencies according to two criteria: sources and methods of surveillance and data collection. It first reviews the two principal sources …

The Bonding Effect In Cross-Listed Chinese Companies: Is It Real?, Donald C. Clarke

GW Law Faculty Publications & Other Works

A common explanation offered for PRC companies’ listing overseas is that they receive a price premium because listing overseas demonstrates a willingness to submit to the more shareholder-protective regulatory regime of the foreign jurisdiction and stock market. This explanation is commonly known as the bonding hypothesis. There is some empirical support for the proposition that listing overseas does indeed bring a price premium, although issues of causality are difficult to sort out. If it is true that investors view an overseas listing of a Chinese firm as something worth paying a premium for, the question remains, however, as to whether …

Book Review: Lessons In Censorship: How Schools And Courts Subvert Students’ First Amendment Rights (Catherine J. Ross), Naomi R. Cahn

GW Law Faculty Publications & Other Works

This book review of Catherine Ross's Lessons in Censorship places issues involving the free speech rights of public school students in the context of family law.

The Law Of Intimate Work, Naomi Schoenbaum

GW Law Faculty Publications & Other Works

This Article introduces the concept of intimate work — intimate services provided by paid workers to a range of consumers — and seeks to unify its treatment in law. The concept explains multiple exceptions to work law that have previously been viewed as random and even contradictory. From the daycare worker to the divorce lawyer, the nurse to the hairstylist, intimate work introduces an intimate party — the consumer — into the arm’s-length employer-employee dyad on which work law is premised. This disruption leads to limited enforcement of non-compete agreements, the waiver or imposition of fiduciary duties, and exceptions to …