Law Commons^™

Emerging Policy And Practice Issues (2016), Steven L. Schooner, David J. Berteau

GW Law Faculty Publications & Other Works

This paper, presented at the West Government Contracts Year in Review Conference (covering 2016), attempts to identify the key trends and issues in U.S. federal procurement for 2017. 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 the (unexpected) inauguration of the Trump administration). The paper discusses, in addition to data, changes to OFPP and DoD leadership and the likely conclusion of the Defense Department Better Buying Power Initiative, and …

Gender And The Tournament: Reinventing Antidiscrimination Law In An Age Of Inequality, Naomi R. Cahn, June Carbone, Nancy Levit

GW Law Faculty Publications & Other Works

Since the 1970’s, antidiscrimination advocates have approached Title VII as though the impact of the law on minorities and women could be considered in isolation. This article argues that this is a mistake. Instead, Reinventing Antidiscrimination Law attempts to reclaim Title VII’s original approach, which justified efforts to dismantle segregated workplaces as necessary to both eliminate discrimination and promote economic growth. Using that approach, this Article is the first to consider how widespread corporate tournaments and growing gender disparities in the upper echelons of the economy are intrinsically intertwined, and how they undermine the core promises ofantidiscrimination law. The Article …

Identifying Anticompetitive Agreements In The United States And The European Union: Developing A Coherent Antitrust Analytical Framework, William E. Kovacic

GW Law Faculty Publications & Other Works

Commentary in both the US and the EU has repeatedly debated whether, and when, it is more efficient to use “rules” or “standards” to determine the legality of conduct subject to the antitrust laws and how such rules or standards should be formulated. This paper concentrates principally on the question of how this debate impacts on the analyticalframework for identifying infringing agreements in the US and EU. It sets out the view that the question of how agreements are to be analysed under both the US and the EU jurisprudence is unduly opaque. Confusion as to, in particular, the role …

Moore's Potential, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

This article was written as a contribution to the Fordham Law Review Symposium entitled Moore Kinship. It examines the various Supreme Court opinions in Moore v. City of East Cleveland to show how they foreshadow the tension between the growing desire of individuals to define “family” in terms of their own choosing and the state’s power to define what constitutes a legitimate family form and, thus, to decide who is entitled to state support. As the article notes, Moore is a methodologically conservative opinion that celebrates the traditional institution of the family through the vehicle of a grandmother-headed extended family. …

Cooperative Judicial Nominations During The Obama Administration, David Fontana

GW Law Faculty Publications & Other Works

This Essay, written for a symposium hosted by the Wisconsin Law Review on judicial nominations, analyzes the failures of some of the tactics used on judicial nominations during the eight years of the Obama Administration. This Essay argues that the roots of these failures to do more on judicial nominations during the Obama Administration reside in a common tactical error made by political leaders in the Democratic Party: excessive cooperation with political forces that do not manifest the same behavioral patterns of cooperation. In addition to the tactical argument, this Essay has a taxonomical goal. Judicial nominations are a unique …

The Regulatory Budget Debate, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

In this essay, Professor Pierce explains why both the hand wringing by environmental advocates and the cheers of coal miners elicited by the Executive Order in which President Trump ordered EPA to repeal the Clean Power Plan (CPP) were based on poorly supported beliefs about the effects of the CPP. The substitution of natural gas, wind and solar power for coal as a generating fuel that the CPP was intended to produce began long before EPA issued the CPP and will continue long after the CPP is repealed. That substitution was driven largely by changes in the relative prices of …

Heteronormativity In Employment Discrimination Law, Naomi Schoenbaum

GW Law Faculty Publications & Other Works

This symposium Essay responds to the EEOC’s new decision to interpret federal employment discrimination law’s ban on discrimination on the basis of sex to include a ban on discrimination on the basis of sexual orientation. It argues that although the EEOC’s decision does provide cause to celebrate, ongoing heteronormativity in federal employment discrimination law will continue to stand as a barrier to equal employment opportunity for gay workers. First, Title VII provides an exception to the sex discrimination ban in the context of intimate spaces, allowing, for example, only women to be hired to serve as labor and delivery nurses. …

Mapping Gender: Shedding Empirical Light On Family Courts’ Treatment Of Cases Involving Abuse And Alienation, Joan S. Meier, Sean Dickson

GW Law Faculty Publications & Other Works

This article provides an empirical view of family courts' treatment of custody cases involving abuse and/or alienation claims. After a brief literature survey, the article describes the co-authors’ pilot study, which begins empirically mapping family courts’ uses of parental alienation theory in abuse cases. The pilot results provide powerful preliminary empirical validation of the growing number of strong critiques of family court practice in abuse cases.

Awareness As A First Step Toward Overcoming Implicit Bias, Cynthia Lee

GW Law Faculty Publications & Other Works

In this book chapter, Cynthia Lee explains that raising awareness of implicit bias is a necessary first step toward eliminating such bias. Lee discusses various ways legal actors can raise awareness about implicit bias, including implicit bias trainings and jury instructions attempting to educate jurors about implicit bias. She concludes that making racial bias (or other types of bias) salient is probably the most effective way to raise awareness of implicit bias in the courtroom setting and discusses the social science literature that supports this conclusion. In light of some studies suggesting that making bias salient may backfire, she suggests …

Properly Funding The Copyright Office: The Case For Significantly Differentiated Fees, Robert Brauneis

GW Law Faculty Publications & Other Works

The United States Copyright Office performs a variety of functions crucial to the copyright system. Through its core registration and recordation functions, it provides critical information about the authorship, ownership, and copyright status of millions of works of authorship created over the last century; it also advises Congress, other federal agencies, and the courts on copyright law; conducts studies on various aspects of copyright law; participates in international meetings; produces educational programs and publications; and engages in many other activities relating to the administration of copyright law. However, the Copyright Office is seriously underfunded, compromising all of its functions. The …

How Justice Thomas Determines The Original Meaning Of Article Ii Of The Constitution, Gregory E. Maggs

GW Law Faculty Publications & Other Works

This paper was presented at a panel on Justice Thomas and Article II at the Yale Federalist Society’s conference, "Celebrating Justice Thomas: 25 Years on the Supreme Court." It addresses the question: "How does Justice Thomas determine the original meaning of Article II of the U.S. Constitution?" In answering this question, I make three observations based on opinions authored or joined by Justice Thomas. First, Justice Thomas seems much more inclined to theorize about executive power than other aspects of constitutional law. Second, Justice Thomas routinely cites seven key sources of original meaning in his decisions on executive power. Third, …

The Paradox Of Implicit Bias And A Plea For A New Narrative, Michael Selmi

GW Law Faculty Publications & Other Works

Over the last decade, implicit bias has emerged as the primary explanation for contemporary discrimination. The idea behind the concept of implicit bias, which is closely connected to the well-known Implicit Association Test (“IAT”), is that many people are unaware of the biases that influence their actions and can engage in discriminatory acts without any conscious intent. Legal scholars have fallen hard for implicit bias and dozens of articles have been written espousing the role implicit bias plays in perpetuating inequality. Within legal analysis, a common mantra has arisen that defines implicit bias as unconscious, pervasive and uncontrollable. What has …

Prudence In International Strategy: From Lawyerly To Post-Lawyerly, Jeremiah S. Pam

GW Law Faculty Publications & Other Works

The quality of prudence has long been associated with lawyers, including when they have served in quite broad capacities. Indeed, for an important period in 20th century U.S. history, one of the most distinctive contributions of a certain type of lawyer, referred to here in shorthand as “the New York lawyer-statesman,” was the application of prudence not to the practice of law as such, but to the broader domain of U.S. international strategy and the exercise of the broader quality of “lawyerly prudence.”

Drawing on a few discrete chapters in U.S. history, this article recounts and interprets the high-water mark …

Kagan's Atlantic Crossing: Adversarial Legalism, Eurolegalism, And Cooperative Legalism, Francesca Bignami, R. Daniel Kelemen

GW Law Faculty Publications & Other Works

In this contribution to Varieties of Legal Order, a book inspired by Robert Kagan’s scholarship, we review the debate on the spread of American “adversarial legalism” to Europe. In the 1990s, Kagan developed the concept of adversarial legalism to capture the distinctive litigiousness of the American regulatory system, and asked whether it might take hold in Europe. In our research that followed, we put forward different answers. R. Daniel Kelemen concluded that a legal style akin to adversarial legalism--one which he eventually termed Eurolegalism—was in fact spreading across the European Union. Drawing on her case study of the data …

Jane The Virgin And Other Stories Of Unintentional Parenthood, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

In this article, we contrast the roles of intent, function, biology and marriage in establishing legal parenthood, focusing on differences between elite and non-elite reproduction. Central to these differences are the distinctions between intent at the time of conception and birth of a child versus the assumption of parental roles that occurs after birth, and between functional roles that correspond to formal agreements or institutions and those which arise through less formal arrangements.

LGBT families have used the concept of intent, as it originated in ART cases, to argue for recognition of families of choice, without either biological ties or …

A Comparative View Of Debarment And Suspension Of Contractors In Brazil And In The Usa, Christopher R. Yukins, Cristiana Fortini Silva, Mariana Avelar

GW Law Faculty Publications & Other Works

This paper analyzes the main aspects of procurement-related suspension and debarment in U.S. law (in the federal sphere) and its parallel institutions in Brazilian law, focusing on temporary suspension from participation in tenders and ineligibility to compete for administrative contracts; full debarment; and legal impediments to participating in tenders and competing for administrative contracts.

Federal Decentralization, David Fontana

GW Law Faculty Publications & Other Works

Constitutional law relies on the diffusion of powers among different institutions to ensure that no one person or faction controls power. Federalism and the separation of powers have been presented as the primary institutional arrangements generating this diffusion. Scholars and jurists alike, though, have largely neglected to consider another form of diffusion: federal decentralization. Federal power cannot be appropriately diffused if it is geographically concentrated in those in a single place. Federal decentralization ensures that federal officials in Washington and in places distant and therefore different from Washington compete with and constrain one another. This Article identifies and evaluates federal …

Introduction, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

This is an introduction to a symposium issue that brings together two different sets of paper. The first set of papers were written in honor of Catharine A. MacKinnon, “Legal Feminism: Looking Back, Looking Forward.;” The second set of papers are drawn from a conference on “The Family-Inequality Debate: A Workshop on Coercion, Class, and Paternal Participation."

The Mystery Of Unanimity In Hosanna-Tabor Evangelical Lutheran Church & School V. Eeoc, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (2012), the Supreme Court held that the First Amendment supports a “ministerial exception” defense in anti-discrimination suits by clergy against their institutional religious employers. In advance of the decision, the outcome seemed unpredictable, and the Court’s unanimity arrived as a shock.

This paper illuminates the result, reasoning, and unanimity in Hosanna-Tabor. We explain how Hosanna-Tabor stands in a long line of decisions, grounded in both the Establishment Clause and the Free Exercise Clause, that prohibit state adjudication of “strictly and purely ecclesiastical" questions.

Part I examines why unanimity on the Supreme …

Management Of Federally Owned Grasslands In The Climate Change Era, Robert L. Glicksman

GW Law Faculty Publications & Other Works

The federal government owns and manages substantial tracts of grasslands, which provide ecosystem services worth trillions of dollars. These include seed dispersal, mitigation of droughts and floods, nutrient cycling, control of pests and disease-carrying organisms, maintenance of biodiversity and wildlife habitat, soil preservation, climate stabilization, watershed and water body protection, pollination, carbon sequestration, and recreational opportunities. Like most ecosystem types found on federal lands, grasslands ecosystems are vulnerable to ongoing and predicted changes in climate.

The land management agencies that administer federal grasslands face novel management challenges that require development of climate change adaptation strategies, some of which they have …

A Concise Guide To The Articles Of Confederation As A Source For Determining The Original Meaning Of The Constitution, Gregory E. Maggs

GW Law Faculty Publications & Other Works

Judges and scholars often refer to the Articles of Confederation when making claims about the original meaning of the United States Constitution. To help readers understand and evaluate such claims, this piece describes the formation and content of the Articles of Confederation and explains four ways in which the Articles may provide evidence of the original meaning of the Constitution. The two appendices to this piece contain an annotated copy of the Articles of confederation and a table linking provisions of the Constitution to their antecedents in the Articles.

The Effects Of President Trump’S Reversal Of President Obama’S Climate Policies Are Greatly Exaggerated, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

In this essay, Professor Pierce explains why both the hand wringing by environmental advocates and the cheers of coal miners elicited by the Executive Order in which President Trump ordered EPA to repeal the Clean Power Plan (CPP) were based on poorly supported beliefs about the effects of the CPP. The substitution of natural gas, wind and solar power for coal as a generating fuel that the CPP was intended to produce began long before EPA issued the CPP and will continue long after the CPP is repealed. That substitution was driven largely by changes in the relative prices of …

Kiobel And Extraterritoriality: Here, (Not) There, (Not Even) Everywhere, Edward T. Swaine

GW Law Faculty Publications & Other Works

The Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co. was relentlessly, and unexpectedly, local in character. Notwithstanding the global outlook suggested by the Alien Tort Statute (ATS), which governs civil actions by “an alien” for torts contrary to “the law of nations or a treaty of the United States,” the Court invoked the presumption against extraterritoriality to limit the statute’s reach.

This Article puts a heavy emphasis on territoriality —not, it should be stressed, as a matter of normative preference, but purely as a reflection of the Court’s recent cases. It is accordingly inconsistent with some of the …

The Evolution Of Global Legal Pluralism, Paul Schiff Berman

GW Law Faculty Publications & Other Works

Global Legal Pluralism is now recognized as an entrenched reality of the international and transnational legal order. Indeed, wherever one looks, there is conflict among multiple legal regimes. Some of these regimes are state-based, some are built and maintained by non-state actors, some fall within the purview of local authorities and jurisdictional entities, and some involve international courts, tribunals, arbitral bodies, and regulatory organizations.

It has been approximately 20 years since scholars first began pushing the insights of legal pluralism into the transnational and international arena. During those two decades, a rich body of work has established pluralism as a …

A Modest Proposal? Regulating Customer Discrimination Through The Firm, Naomi Schoenbaum

GW Law Faculty Publications & Other Works

Antidiscrimination law appears to be of two minds. The law aggressively polices discrimination in some realms, while leaving other realms to be governed by the preferences of their participants. In their essay, Professors Katharine Bartlett and Mitu Gulati suggest recalibrating the boundaries of this area of law so that it covers discrimination in an area that the law now leaves largely up to the realm of personal preference: discrimination by customers. While Bartlett and Gulati consider a direct ban on discrimination by customers, they reject this approach in favor of regulating firms. They describe this proposal as “modest.”

This Response …

What’S Right About Knowing?, Naomi R. Cahn

GW Law Faculty Publications & Other Works

In Sperm donor anonymity and compensation: an experiment with American sperm donors, the authors contribute to our knowledge about the impact of moving toward a system of known sperm donation in the USA by surveying a population of active and inactive actual sperm donors. Their conclusions—slightly more than a quarter would refuse to contribute, while the remaining donors would require an additional $60 per donation—are interesting and useful in modeling the implications of moving towards a new regime that allows for limited disclosure.

Yet this study must be placed in a larger context that considers not just the market for …

Trinity Lutheran Church V. Comer: Paradigm Lost?, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

Acting pursuant to its state constitution, Missouri excluded houses of worship from a program that provides government support for resurfacing playgrounds. In Trinity Lutheran Church v. Comer (“TLC”), the Supreme Court ruled (7-2) that this exclusion violated the Free Exercise Clause. To those with a sense of Religion Clause history, the Supreme Court's opinion arrived as a shock.

As this essay explains, the agreement among the Justices in the majority masks deep division about basic Religion Clause principles. The essay analyzes the status of those principles, and the ways in which TLC disregards or abandons them.

Most starkly, …

Stuck Or Rooted? The Costs Of Mobility And The Value Of Place, Naomi Schoenbaum

GW Law Faculty Publications & Other Works

David Schleicher has written an important Article on the relationship between law and mobility, arguing for policymakers to be more concerned with policies that stand in the way of individuals moving to bigger, more productive cities. This Response takes up the costs of mobility for productivity, welfare, and sex equality omitted by Schleicher, and addresses Schleicher’s treatment of place as a market. Schleicher’s argument fails to take account of how mobility interacts with critical relationships. While Schleicher’s view of productivity is premised in agglomeration economics, he ignores how mobility ruptures the very relationships on which the benefits of agglomeration (and …

A Critical Guide To Using The Legislative History Of The Fourteenth Amendment To Determine The Amendment's Original Meaning, Gregory E. Maggs

GW Law Faculty Publications & Other Works

Judges, lawyers, and scholars often look to the Fourteenth Amendment’s legislative history for evidence of the Amendment’s original meaning. Members of the Supreme Court, for instance, have cited floor statements, committee records, preliminary proposals, and other documents relating to the drafting and approval of the Fourteenth Amendment in many important cases. The documents containing this legislative history, however, are difficult to use. As explained in this Article, the Amendment came about through a complex process, in which Congress rejected several prior proposals for constitutional amendments before settling on a markedly different proposal that became the Fourteenth Amendment. Although the primary …

The U.S. Federal Procurement System: An Introduction, Christopher R. Yukins

GW Law Faculty Publications & Other Works

The U.S. procurement market is one of the largest in the world, and the procurement law which guides that market, a regulatory regime which is both complex and mature, offers important lessons for other procurement systems around the world. This article provides a modest introduction to U.S. procurement law – especially federal procurement law, which generally is more extensively developed than state or local procurement law – and suggests possible lessons learned that may be useful for other systems. The article proceeds in several parts. The article reviews the history of the federal procurement system, which can be traced to …