Law Commons^™

The Centrality Of Military Procurement: Explaining The Exceptionalist Character Of United States Federal Public Procurement Law, Joshua I. Schwartz

GW Law Faculty Publications & Other Works

This study builds upon prior work that delineates opposing tendencies of exceptionalism and congruence that measure the degree to which a body of public contracts law diverges or adheres to the norms of private contract law. This study has two objectives. First, itseeks to define more precisely, and track the incidence and locus of a phenomenon described as exceptionalism in public procurement law. Exceptionalism enhances the powers or reduces the liabilities of the government with respect to its private contracting partners. The first branch of this study also seeks to distinguish such true exceptionalism from a phenomenon of reverse exceptionalism …

An Analysis Of Pascal Lamy's Proposal On Collective Preferences, Steve Charnovitz

GW Law Faculty Publications & Other Works

In September 2004, then-European Commissioner for Trade Pascal Lamy released his study on the political challenge of 'collective preferences' for the world trading system. Lamy defines 'collective preferences' as 'the end result of choices made by human communities that apply to the community as a whole'. The adoption of collective preferences by governments can complicate international trade when a good or service from an exporting country is not acceptable in an importing country. Collective preferences cause a problem for the WTO if the resulting measure violates WTO rules and yet the measure is too popular in the regulating country for …

Thomas Jefferson Counts Himself Into The Presidency, David Fontana, Bruce Ackerman

GW Law Faculty Publications & Other Works

The Constitution instructs the President of the Senate to open the ballots submitted by members of the Electoral College, but it provides little guidance when a ballot turns out to be defective. This article provides the first in-depth consideration of two early precedents. Both Vice-President John Adams and Vice-President Thomas Jefferson confronted problems when counting the electoral votes in 1797 and 1801, respectively. Both men were placed in the awkward position of ruling on matters involving an election in which they were leading presidential candidates, but Jefferson's problem was more serious. In 1801, Georgia's electors cast their votes for Jefferson …

The Appeal And Limits Of Internal Controls To Fight Fraud, Terrorism, Other Ills, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

Congress responded in similar ways to 2001's major national crises: bolstering internal controls in corporate America under the Sarbanes-Oxley Act in response to Enron's debacle and imposing internal controls on its financial services industry under the USA PATRIOT Act in response to 9/11's terrorism. These reflexive legislative responses to national crisis fit a pattern of proliferating controls as a first-order policy option dating to the mid-1970s. Documenting this proliferation and untangling the definition of internal controls, this Article attributes the appeal of internal controls as a policy option to systemic forces including the movements for deregulation and cooperative compliance, resistance …

The Donor Class: Campaign Finance, Democracy, And Participation, Spencer A. Overton

GW Law Faculty Publications & Other Works

This Article uses the U.S. Supreme Court's recent opinion in McConnell v. FEC to argue that the law should play a central role in reducing the impact of disparities in wealth on political participation. In upholding large parts of the Bipartisan Campaign Reform Act, the Court in McConnell acknowledged the adverse impact of concentrated wealth on widespread democratic participation and self-government. Even in the aftermath of the reforms upheld in McConnell, however, a small, wealthy and homogenous donor class continues to make relatively large contributions that fund the bulk of American politics. Less than one percent of the U.S. population …

Restraint And Responsibility: Judicial Review Of Campaign Reform, Spencer A. Overton

GW Law Faculty Publications & Other Works

The First Amendment doctrine governing campaign finance law allows judicial outcomes to turn on often unstated political assumptions about the appropriate role of money in campaigns. As illustrated by the conflicting opinions of different U.S. Supreme Court Justices in McConnell v. FEC, current narrow tailoring and substantial overbreadth tests provide inadequate guidance and compel judges to rely on their own political assumptions in balancing the need for regulation against the right of free speech. Judges skeptical of campaign reform err on the side of protecting speech, while judges supportive of reform lean toward tolerating regulations said to prevent corruption. To …

Environmental Regulation, Energy, And Market Entry, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

As my contribution to a symposium, I was asked to identify and to discuss conflicts between environmental regulation and pursuit of the goals of national energy policy. I identify three contexts in which I see clear conflicts between environmental regulation and energy policy - gasoline production, importation of liquefied natural gas, and transmission of electricity. In each case, I conclude that the conflict is attributable to state and local regulations. In the case of the gasoline market, I conclude that the market is beginning to perform poorly because of a combination of state land use regulations that make it impossible …

The Tyranny Of Time: Vulnerable Children, Bad Mothers, And Statutory Deadlines In Parental Termination Proceedings, Catherine J. Ross

GW Law Faculty Publications & Other Works

This paper explores issues raised by the Adoption and Safe Families Act of 1997 (ASFA) and contends that the Act may have unwittingly harmed some children and mothers by creating a categorical imperative that a child's health and safety must be a paramount consideration in child welfare decisions. After discussing the reforms made by the Act, this paper analyzes hard cases, in particular cases involving substance abusing mothers and battered mothers, and concludes that in some instances children's interests in these cases might be better served by a flexible standard where the child asserts a claim to a continued relationship …

Political Questions And Political Remedies, Jonathan R. Siegel

GW Law Faculty Publications & Other Works

Defenders of the political question doctrine sometimes observe that the lack of a judicial remedy for a constitutional violation does not deprive injured parties of all remedy, because injured parties can pursue a political or an electoral remedy - they can seek relief at the ballot box or in the political process. This essay criticizes that argument. Political and electoral remedies for constitutional violations are ineffective for important practical and theoretical reasons that grow out of the different structures of the judicial, political, and electoral processes. The judicial process focuses each case on a particular issue; candidates in elections always …

Using Framework Statutes To Facilitate U.S. Treatymaking, Steve Charnovitz

GW Law Faculty Publications & Other Works

This paper examines the two tracks used by the United States to negotiate and approve international treaties - (1) the traditional treaty process requiring Senate consent by a two-thirds vote and (2) the newer fast track process used for trade agreements, requiring Congressional passage of a law to approve and implement the agreement. Several historical and current examples are used such as the Treaty of Versailles and the Kyoto Protocol on climate change. The paper explains why the latter process is superior in many ways, and asks whether it should be applied more broadly beyond the topic of trade. Three …

Unitary Judicial Review, Bradford R. Clark

GW Law Faculty Publications & Other Works

Two hundred years have passed since the Supreme Court's decision in Marbury v. Madison, yet debate continues over the origins and legitimacy of judicial review. Although modern commentators generally accept judicial review with little or no reservation, some remain skeptical. One of the strongest and most sustained challenges comes from Larry Kramer, who has recently argued that the Founders did not authorize judicial review of the scope of federal powers under the original Constitution. At the same time, Kramer maintains that the Founders expected judicial review both to prevent states from undermining federal supremacy and to enforce individual rights. Such …

Justice Advanced: Comments On William Nelson's Brown V. Board Of Education And The Jurisprudence Of Legal Realism, Robert J. Cottrol

GW Law Faculty Publications & Other Works

The Supreme Court’s landmark school desegregation decision in Brown v. Board of Educationbrings us face-to-face with how the world of race, law, caste, and the Supreme Court has changed since that time. Brown has contributed to a view that the courts are perhaps best equipped to handle the difficult issues. Whether that view will prove to be good law or good policy in the long run remains to be seen. Nonetheless, it does reflect the jurisprudential journey that took the Court from its previously indifferent position on minority rights towards that a protector of such rights. The evolution in …

Brown And The Contemporary Brazilian Struggle Against Racial Inequality: Some Preliminary Comparative Thoughts, Robert J. Cottrol

GW Law Faculty Publications & Other Works

Brown v. Board of Education, the Supreme Court's celebrated 1954 decision that ended segregation in the United States, did not end a caste based inequality among the races. One of the nations currently struggling with such a legacy of discrimination is Brazil. Brazil's path to overcome structural inequality has some interesting parallels and differences with the American experience.
Writings by Brazilian legal scholars such as Joaquim B. Barbosa Gomes and Hedio Silva Jr. had bolstered the thought that the American civil rights experience has lessons for Brazil. This experience, which was greatly shaped by Brown, contributed to the growth …

Justice Advanced: Comments On William Nelson’S Brown V. Board Of Education And The Jurisprudence Of Legal Realism, Robert J. Cottrol

GW Law Faculty Publications & Other Works

The Supreme Court’s landmark school desegregation decision in Brown v. Board of Education brings us face-to-face with how the world of race, law, caste, and the Supreme Court has changed since that time. Brown has contributed to a view that the courts are perhaps best equipped to handle the difficult issues. Whether that view will prove to be good law or good policy in the long run remains to be seen. Nonetheless, it does reflect the jurisprudential journey that took the Court from its previously indifferent position on minority rights towards that a protector of such rights.

The evolution in …

Families And The Moral Economy Of Incarceration, Donald Braman

GW Law Faculty Publications & Other Works

This chapter examines the moral economy of incarceration from the perspective of one family. Derrick and Londa's story, neither one of flagrant injustice nor triumph against the odds, shows a family facing addiction, the criminal justice system's response to it, and the mixture of hardship and relief that incarceration brings to many families of drug offenders. Stories like theirs are almost entirely absent from current debates over incarceration rates and accountability. Indeed, the historical lack of the familial and community perspective of those most affected by incarceration can help to explain the willingness of states to accept mass-incarceration as a …

Assessing The Legality Of Invading Iraq, Sean D. Murphy

GW Law Faculty Publications & Other Works

The recent invasion of Iraq challenges a cornerstone of contemporary international law: the prohibition on the use of force by one state against another state. The conventional wisdom is that the United States embarked on the invasion with little regard for international law or for the attitudes reflected by other nations, including the other members of the UN Security Council. This article disputes that conventional wisdom.

First, the Bush administration could have ignored international law and the Security Council, but in fact deployed a fairly sophisticated legal theory as to why U.S. actions were permissible under international law, a theory …

Achieving The Double Bottom Line: A Framework For Corporate Seeking To Delivery Profits And Public Services, Lisa M. Fairfax

GW Law Faculty Publications & Other Works

No abstract provided.

Foundations Of International Environmental Law, Dinah L. Shelton

GW Law Faculty Publications & Other Works

The introductory chapter of this book reviews the religious, ethical, and philosophical underpinnings of environmental law. Judeo-Christian religions, Islam, and Buddhism all contain guidance about how to interact with the environment. Although early treaties reflect a belief that humans had the right to use nature to their benefit without any restrictions, later policies aim “to reconcile competing social and economic policies in order to obtain equitable sharing of resources.” The chapter discusses features of the economic system that present challenges to preserving the environment, including tragedy of the commons and competitive disadvantage. Finally, the article describes international law sources of …

Promoting Social And Economic Justice Through Interdisciplinary Work In Transactional Law, Susan R. Jones

GW Law Faculty Publications & Other Works

Drawing upon the author's experience with a law school Small Business Clinic, this article claims that business law transactional practice is inherently interdisciplinary, involving collaboration from various disciplines, including law, business, accounting, finance, engineering, computer science, and the social sciences. The author explores the need for legal assistance for entrepreneurs and other small businesses, especially for women and minority business owners, and discusses the recent rise in small business clinics and community economic development (CED) clinical programs, which the author attributes to a trend away from government entitlements and toward personal responsibility and economic self-sufficiency, the failure of the litigation …

Civic Renewal And The Regulation Of Non-Profits, Miriam Galston

GW Law Faculty Publications & Other Works

Civic Renewal and the Regulation of Non-profits analyzes four understandings of civic renewal, elaborated in the wake of Robert Putnam's book Bowling Alone, in light of the federal regulatory scheme imposed upon voluntary associations that qualify as "exempt organizations" under the Internal Revenue Code. These perspectives emphasize the primacy of one or more of the following as indispensable elements of civic health: (1) cooperation and effective collective action, (2) self-governance (3) equality and representative institutions, and (4) the moral character of the community or the public spiritedness of citizens. The study analyzes how the different assumptions and purposes of these …

A Unified Economic Theory Of Noninfringement Opinions, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

In the wake of the Federal Circuit’s ruling in Knorr-Bremse Systeme Fuer Nutzfahrzeuge GmbH v. Dana Corp., this Article seeks to develop an economic theory of the functions that enhanced damages may serve in patent law specifically or litigation more generally as well as to explain the role that noninfringement opinions – opinions of counsel that conclude that activity will be noninfringing – could have within the context of such a theory. I consider the benefits and costs of a patent regime that generally provides enhanced damages but provides a safe harbor for potential infringers who acted only after receiving …

An Industrial Organization Approach To Copyright Law, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

Although copyright’s chief goal is often said to be the provision of incentives for producing new works, the literature on copyright rarely addresses how proposed changes in copyright law would have meaningful effects on the variety of copyrighted works available to consumers. With a focus on the economics of product differentiation and rent dissipation analysis, this Article elaborates on the insight that marginal copyrighted works are not likely to produce large contributions to social welfare and argues that the greater the success of copyright law in generating large numbers of works, the more copyright law should care about access. Part …

Toward A Constitutional Regulation Of Minors' Access To Harmful Internet Speech, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

In this article, I scrutinize Congress's recent efforts to regulate access to sexually-themed Internet speech. The first such effort, embodied in the Communications Decency Act, failed to take into account the Supreme Court's carefully-honed obscenity and obscenity-for-minors jurisprudence. The second, embodied in the Child Online Protection Act, attended carefully to Supreme Court precedent, but failed to account for the geographic variability in definitions of obscene speech. Finally, the recently-enacted Children's Internet Protection Act apparently remedies the constitutional deficiencies identified in these two prior legislative efforts, but runs the risk of being implemented in a manner that fails to protect either …

'But I Thought He Had A Gun' - Race And Police Use Of Deadly Force, Cynthia Lee

GW Law Faculty Publications & Other Works

It is undisputed that Blacks are disproportionately represented among the victims of police shootings. In a comprehensive review of the literature on police use of deadly force, James Fyfe reports that every study that has examined this issue [has] found that blacks are represented disproportionately among those at the wrong end of police guns. Although Blacks represent approximately 13 percent of the population in the United States, in parts of the country they constitute 60 to 85 percent of the victims of police shootings. On average, Blacks are more than six times as likely as Whites to be shot by …

The Digital Person: Technology And Privacy In The Information Age, Daniel J. Solove

GW Law Faculty Publications & Other Works

This is the complete text of Daniel J. Solove's book, THE DIGITAL PERSON: TECHNOLOGY AND PRIVACY IN THE INFORMATION AGE (Full Text) (NYU Press 2004) explores the social, political, and legal implications of the collection and use of personal information in computer databases. In the Information Age, our lives are documented in digital dossiers maintained by hundreds (perhaps thousands) of businesses and government agencies. These dossiers are composed of bits of our personal information, which when assembled together begin to paint a portrait of our personalities. The dossiers are increasingly used to make decisions about our lives - whether we …

A Delicate Task: Balancing The Rights Of Children And Mothers In Parental Termination Proceedings, Catherine J. Ross

GW Law Faculty Publications & Other Works

This article considers the independent liberty interests of children in foster care and their mothers in parental termination proceedings. Federal reforms enacted in 1997 impose a mandatory deadline for the state to terminate parental rights. That policy erroneously presumes that the passage of time suffices to establish parental fault and satisfies a parent's due process rights to her child. The policy also fails to protect the minority of children in foster care who assert an interest in preserving a safe relationship with mothers who are unlikely to regain custody within the state's time frame - including many substance abusers, incarcerated …

Beyond Retribution And Impunity: Responding To War Crimes Of Sexual Violence, Naomi R. Cahn

GW Law Faculty Publications & Other Works

Beyond Retribution and Impunity: Responding to War Crimes of Sexual Violence articulates principles for an approach to gender-based violence during conflict and post-conflict that operates within three different meanings of justice: criminal/civil justice, restorative justice, and what I define as social services justice. The article argues that responses to sexual violence must integrate legal and nonlegal, national, international, and local approaches, and must respond to both short and longer-term needs. It focuses on victims of sexual violence in the Democratic Republic of the Congo during what has been called the First World War in Africa, which occurred from 1996-2003.

Joseph …

Mixed Administration In The European Data Protection Directive: The Regulation Of International Data Transfers, Francesca Bignami

GW Law Faculty Publications & Other Works

This article analyzes mixed administration through a detailed case study of the operation of the European Data Protection Directive in Italy. For purposes of this contribution, a mixed procedure is an administrative process, established by Treaty or European legislation, in which national and European administration share responsibility for a single determination of rights and duties under European law. The article proceeds in four parts. First, I analyze the mixed procedure for transfers of personal information to third countries as it appears on the face of the Data Protection Directive. Second, I describe the experience with the procedure in the brief …

Towards A Typology Of Corporate Responsibility In Different Governance Contexts, Naomi R. Cahn, Anthony Gambino

GW Law Faculty Publications & Other Works

This paper develops a typology of different country governance contexts, in which we propose four broad categories of countries in Sub-Saharan Africa. Our analysis measures the most appropriate methods for helping to create a climate that is receptive to fostering corporate accountability. Our criteria are based on several different factors, none of which is determinative: the natural resources of the country; the country's dependence on one commodity; the corruption level; the stability and accountability of the government; the state of civil society; and the existence of ongoing conflict. Examining these factors together results in measuring not just the country's receptivity …

Transparency And Participation In The World Trade Organization, Steve Charnovitz

GW Law Faculty Publications & Other Works

This paper discusses the challenge of improving transparency and participation in the World Trade Organization (WTO). Part I explores the development in international trade law of the norm for transparency and participation at the national level. The analysis begins with Immanuel Kant and traces the history of the issue in trade through the League of Nations and then to the postwar trading system culminating in the WTO. Part II describes the WTO's practices regarding openness and public participation, and then criticizes the current limitations. Part III proposes several new steps for the WTO to take to promote transparency and participation. …