Law Commons^™

Reforming The Law On Police Use Of Deadly Force: De-Escalation, Pre-Seizure Conduct, And Imperfect Self-Defense, Cynthia Lee

GW Law Faculty Publications & Other Works

This article seeks to contribute to the national conversation on reforming police practices by evaluating the current law on police use of deadly force, identifying problems with that law, and suggesting a modest change to that law in the form of model legislation governing police use of deadly force. Existing statutes on police use of deadly force tend to focus on the reasonableness of the officer's belief in the need to use force. This article suggests that the law should be reformed to explicitly include a focus on the reasonableness of the officer's actions. Under the proposed model statute, in …

§5.12 Communication, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses what is a “communication” for purposes of the attorney-client privilege. It notes that observations, as distinguished from communications, are generally not privileged, but that when observations are a form of confidential communication they are privileged. The article discusses the trend toward a two-way privilege that covers communications from the lawyer to the client as well as from the client to the lawyer.

Anniversary Commemoration And Work Of The International Law Commission’S Seventieth Session, Sean D. Murphy

GW Law Faculty Publications & Other Works

This essay analyzes the outcome of the seventieth session of the U.N. International Law Commission held in the summer of 2018 in New York and Geneva. Notably, the Commission completed on second reading two topics: subsequent agreements and subsequent practice in relation to the interpretation of treaties; and identification of customary international law. The Commission completed on first reading two further topics: protection of the atmosphere; and provisional application of treaties. Progress was also made in developing draft conclusions on peremptory norms of general international law (jus cogens), draft principles on protection of the environment in relation to armed conflict, …

Law & Entrepreneurship In Global Clinical Education, Susan Jones, Janet Thompson Jackson

GW Law Faculty Publications & Other Works

As clinical legal education (CLE) continues to evolve and prepare practice-ready lawyers, and governments worldwide focus on the multilayered impact of technology, automation and artificial intelligence, there is a pressing need to examine law and entrepreneurship through the lens of global clinical legal education. The range of issues include: corporate social responsibility, disruptive technologies, microbusiness, social entrepreneurship, social impact investing, the creative economy, sustainable local economies, cooperatives and shared work, and inclusive entrepreneurship.

Indeed, new legal entities like benefit corporations and low profit limited liability companies (L3Cs) have emerged to address contemporary legal needs and in the United States. the …

The Golden Years, Gray Divorce, Pink Caretaking, And Green Money, Naomi R. Cahn

GW Law Faculty Publications & Other Works

This Article considers the impact of changing family structures on aging in contemporary America. It looks at two critical and interrelated aspects of aging—economic security and caretaking—and offers policy suggestions on how to improve the financial stability of and caretaking possibilities for elders. The core thesis is that our current social, legal, and economic structure for growing old is organized around the nuclear family with respect to both caretaking and financial security. As family structures change in terms of partnering (and re-partnering and non-partnering) and number of children, and with the increase in economic inequality, support for old age needs …

Legal Jurisdiction And The Deterritorialization Of Data, Paul Schiff Berman

GW Law Faculty Publications & Other Works

Electronic data—everything from e-mails and text messages to Facebook and Instagram posts to Twitter pronouncements to drone warfare data to search algorithms to financial transactions to cloud data storage—travels around the globe with little relationship to physical territory. In addition, all of this data is often in the custody and control of data intermediaries such as Google, Facebook, Twitter, Apple, Microsoft, Amazon, private military contractors, and so on.

Three important consequences flow from this ubiquitous technology-enabled, data-driven global societal activity. First, the territorial location of data becomes increasingly arbitrary and substantively unimportant. If I, as a U.S. citizen based in …

Campus Discourse And Democracy: Free Speech Principles Provide Sound Guidance Even After The Tumult Of 2017, Catherine J. Ross

GW Law Faculty Publications & Other Works

This Article argues that First Amendment doctrine provides a nuanced and adequate framework for responding to contemporary challenges involving the intersection of free speech, protests, outside agitators, and the risk of violence on college campuses. The Article places contemporary events and concerns in the context of classic free speech doctrine--which binds all public colleges and universities and which many privately-run colleges voluntarily commit to respecting. It also analyzes the import of the unique mission of universities as set out in three seminal university reports on freedom of expression that emphasize intellectual freedom, “full freedom of dissent,” and the imperative of …

A Theory Of Civil Problem-Solving Courts, Jessica K. Steinberg

GW Law Faculty Publications & Other Works

This article is the first to develop a problem-solving theory for the civil justice system. Drug courts pioneered the problem-solving model in the 1990s to pursue therapeutic goals as an alternative to “assembly line” sentencing. This Article explores the potential for migration of the drug court framework into the two most commonly adjudicated civil cases: rental housing and consumer debt.

Three structural conditions in the civil courts—high-volume dockets, systemic lack of counsel, and corporate capture of the small claims process—routinely position vulnerable classes of individuals on the losing end of litigation. In the aggregate, these conditions have rendered the civil …

Tale Of Three Regulatory Regimes -- Dynamic, Distracted And Dysfunctional: Sweden, The United Kingdom And The United States, Christopher R. Yukins, Andrea Sundstrand, Michael Bowsher Qc

GW Law Faculty Publications & Other Works

It was the best of times, it was the worst of times -- a year marked by genuine progress in public procurement law in some nations, and partial paralysis in others. This article presents the experience of Sweden (as part of the European Union), the United Kingdom (which is slated soon to depart from the EU, via “Brexit”), and the United States (in the first year of the Trump administration). While Sweden and other members of the European Union continue to develop a vital and evolving body of public procurement law, the United Kingdom has been distracted by Brexit, and …

Bid Protests: The Rand Study Of Dod Protests At The Gao And The Cofc, Steven L. Schooner

GW Law Faculty Publications & Other Works

This short piece discusses the congressionally mandated study of bid protests of (or disappointed offeror litigation related to) U.S. defense department procurements. It describes the report, which reflects a serious and objective analysis of some frequently polarizing issues: among other things, it describes stakeholder perspectives on the bid protest system, chronicles and analyzes a decade of bid protest volume; provides some supplemental data on discrete aspects of the data set; and offers some thought-provoking recommendations. The essay generally applauds the study effort for dispelling some urban myths; reminding us that - with regard to protests - the devil is in …

Studying The “New” Civil Judges, Jessica K. Steinberg, Anne E. Carpenter, Colleen Shanahan, Alyx Mark

GW Law Faculty Publications & Other Works

We know very little about the people and institutions that make up the bulk of the United States civil justice system: state judges and state courts. Our understanding of civil justice is based primarily on federal litigation and the decisions of appellate judges. Staggeringly little legal scholarship focuses on state courts and judges. We simply do not know what most judges are doing in their day-to-day courtroom roles or in their roles as institutional actors and managers of civil justice infrastructure. We know little about the factors that shape and influence judicial practices, let alone the consequences of those practices …

How Should The U.S. Public Law System React To President Trump?, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

In this essay Professor Pierce uses six actions that President Trump has taken or threatened to take to illustrate the ways in which courts can preclude him from undermining core legal and cultural values while preserving his power and that of his successors to take all actions needed to execute effectively the powers conferred on the president in Article II of the constitution. He concludes that courts are capable of performing that difficult task through application of existing public law doctrines.

How Should the U.S. Public Law System React to President Trump?

Lethal Autonomous Weapons Systems: The Overlooked Importance Of Administrative Accountability, Laura T. Dickinson

GW Law Faculty Publications & Other Works

The rise of lethal autonomous weapons systems creates numerous problems for legal regimes meant to insure public accountability for unlawful uses of force. In particular, international humanitarian law has long relied on enforcement through individual criminal responsibility, which is complicated by autonomous weapons that fragment responsibility for decisions to deploy violence. Accordingly, there may often be no human being with the requisite level of intent to trigger individual responsibility under existing doctrine. In response, perhaps international criminal law could be reformed to account for such issues. Or, in the alternative, greater emphasis on other forms of accountability, such as tort …

Was Glass-Steagall's Demise Inevitable And Unimportant?, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

The demise of the Glass-Steagall Act was the result of affirmative policy decisions by federal regulators and Congress, and it was not the inevitable byproduct of market forces. Economic disruptions and financial innovations posed serious challenges to the viability of Glass-Steagall, beginning in the 1970s. However, federal regulators and Congress could have defended Glass-Steagall and made necessary adjustments to preserve its effectiveness. Instead, they supported efforts by large financial institutions to break down Glass-Steagall’s structural barriers, which separated commercial banks from securities firms and insurance companies.

Federal agencies opened a number of loopholes in Glass-Steagall’s barriers during the 1980s and …

The U.S.-Mexico-Canada Agreement (Usmca): Some Surprising Outcomes In Procurement, Christopher R. Yukins

GW Law Faculty Publications & Other Works

The Trump administration recently released the proposed text of the U.S.-Mexico-Canada Agreement (USMCA), a major regional trade agreement that, if ratified, would replace the North American Free Trade Agreement (NAFTA). While the government procurement chapter of the proposed USMCA was largely a copy-and-paste from the abandoned Transpacific Trade Agreement (TPP), the procurement chapter of the USMCA did contain a few major surprises -- including the omission of Canada. This article reviews the background to the USMCA, some of the most important elements of the agreement, and the lessons learned for future international cooperation in procurement policy and law.

§3.8 Hard Cases Where Counterproof Is Sufficient But Not Conclusive, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the competing views of how presumptions operate when evidence is offered challenging the presumed fact. It discusses both the approach of FRE 301 as well as the approach adopted by the Uniform Rules of Evidence.

§8.84 “Testimonial” Hearsay —Reach And Limits Of The Crawford Doctrine, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the definition and scope of “testimonial” hearsay under the Crawford doctrine. It discusses the four factors that are most likely to qualify an out-of-court statement as testimonial hearsay under the Sixth Amendment. In addition to discussing the facts and holding of Crawford, it discusses the subsequent cases interpreting that opinion.

§6.11 Juror Testimony And Affidavits Barred, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the impeachment of jury verdicts under FRE 606(b). Such impeachment is generally barred based on juror testimony or affidavits. However, there are three primary exceptions where jury testimony is allowed. The article discusses the key Supreme Court cases of Tanner and Pena-Rodriguez. In the latter case, the Court held for the first time that the Sixth Amendment entitles a convicted defendant to show that the jury relied on “racial stereotypes or animus to convict.”

§5.29 Inadvertent Disclosure, Christopher B. Mueller

GW Law Faculty Publications & Other Works

This article addresses waiver of the attorney-client privilege by inadvertent disclosure, usually during discovery. It discusses the protections provided by FRE 502 when an attorney has taken “reasonable steps” to prevent the inadvertent disclosure and “reasonable steps” to rectify the error.

§5.22 Crime-Fraud Exception, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the crime-fraud exception to the attorney-client privilege. It discusses the two-part test recognized by most courts. It also discusses the difficult issues of determining the intent of the client in consulting the lawyer and the line between past and ongoing criminal conduct. It concludes by addressing the proof necessary to claim the crime-fraud exception.

Obligations Of States In Disputed Areas Of The Continental Shelf, Sean D. Murphy

GW Law Faculty Publications & Other Works

Normally, a coastal State has sovereign rights to explore and exploit the natural resources of the continental shelf appurtenant to its territory. In some situations, however, States have overlapping claims as to their continental shelves, which raises important issues as to how such States must conduct themselves prior to resolution of their dispute. This chapter advances eight basic rules that every State is expected to follow in such a situation. Inevitably, such rules are general in nature and will have variable effects when applied in context. Nevertheless, it is submitted that such rules provide importance guidance to States in upholding …

Parole Practice Manual For The District Of Columbia, Jessica K. Steinberg, Kathryn Ramsey

GW Law Faculty Publications & Other Works

"Authored by Professors Jessica Steinberg and Katy Ramsey, the Parole Practice Manual for the District of Columbia is the first and only comprehensive primer on parole practice for D.C. residents. The manual is intended to assist incarcerated individuals in securing their freedom and is available to download for free. Questions regarding the Manual should be directed to Jessica Steinberg, Associate Professor of Clinical Law and Director of GW's Prisoner & Reentry Clinic."

International Trade Agreements And U.S. Procurement Law, Christopher R. Yukins, Allen B. Green

GW Law Faculty Publications & Other Works

Some of the most difficult issues in U.S. procurement law stem from the nation’s several centuries of accumulated protectionist measures, and from a patchwork of trade agreements meant to contain that protectionism. These conflicting measures reflect a push-and-pull in U.S. procurement policy, between those who favor closed procurement markets and those who favor open competition; the compromises reached between the two camps have created a Byzantine set of rules and requirements. At the same time, though, this area of law holds a special promise for the future of procurement, for cross-border agreements currently offer the readiest means of erasing anti-competitive …

He Says It Didn’T Happen: Rob Porter, Donald Trump, And How We Treat Abuse Allegations, Laurie S. Kohn

GW Law Faculty Publications & Other Works

We want to believe the denials of men who are accused of doing bad things, particularly bad things against women. A glance at several high profile celebrity domestic violence cases illustrates the prevalence of this attitude.

To accept denial as a final word on any claim is, first and foremost, a bad way to assess its truthfulness. But to accept a denial as proof of an alleged perpetrator’s innocence also perpetuates the dynamics of domestic abuse, and discourages people from taking responsibility for their actions.

We can no longer allow denials to be the end of the story when it …

Human Rights Extraterritoriality: The Right To Privacy And National Security Surveillance, Francesca Bignami, Giorgio Resta

GW Law Faculty Publications & Other Works

This chapter focuses on the international right to privacy and national security surveillance by spy agencies. It assesses the extent to which the law of the United States and Europe (EU and ECtHR) afford extraterritorial protection for the right to privacy, in furtherance of the international human right to privacy. The chapter concludes that U.S. law draws a stark line between insiders (U.S. citizens and permanent residents) and outsiders, and affords significantly more protection for insiders. On the European side, even though the EU does not have jurisdiction internally over spy agencies, it does have the power to regulate foreign …

Divided Infringement, Economics, And The Common Law, Dmitry Karshtedt

GW Law Faculty Publications & Other Works

This essay responds to and builds on "Economic Theory, Divided Infringement, and Enforcing Interactive Patents," an article published by Professor Keith Robinson. In his article, Professor Robinson analyzed liability under various tests courts have developed to address the so-called "divided infringement" problem, which arises when multiple entities perform the steps of a method patent claim, under the three leading economic theories of patent law — reward theory, prospect theory, and rent-dissipation theory. In particular, Professor Robinson concluded that imposition of liability for divided infringement of method claims under joint enterprise principles is consistent with all three of these theories.

This …

The Constitutional Case For Chevron Deference, Jonathan R. Siegel

GW Law Faculty Publications & Other Works

Prominent figures in the legal world have recently attacked the doctrine of Chevron deference, suggesting that Chevron is unconstitutional because it interferes with a court’s duty to exercise “independent judgment” when interpreting statutes. This Article shows that Chevron’s critics are mistaken. Chevron deference, properly understood, does not prevent courts from interpreting statutes. An interpretation that concludes that a statute delegates power to an executive agency is still an interpretation. The power implicitly delegated to an agency by an ambiguous statute is not the power to interpret the statute, but the power to make a policy choice within the limits set …

How Perris V. Hexamer Was Lost In The Shadow Of Baker V. Selden, Zvi S. Rosen

GW Law Faculty Publications & Other Works

Perris v. Hexamer stands out as case that is equal parts important and forgotten. It is obviously important – it is one of a preciously small number of Supreme Court decisions on the idea/expression dichotomy, but it is mostly forgotten in favor of the Court’s decision the following year in Baker v. Selden. It is equally obscure – Westlaw counts 2,703 citations of Baker v. Selden, and 81 of Perris v. Hexamer. Yet the subject matter of both decisions is surprisingly similar, and these cases tell us far more when considered in tandem than when either one is considered on …

Emerging Policy And Practice Issues (2018), Steven L. Schooner, David Berteau

GW Law Faculty Publications & Other Works

This paper/chapter, presented at the West Government Contracts Year in Review Conference (covering 2017), 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. The paper discusses, in addition to a deep dive into the spending data, the surprisingly slow pace of acquisition regulation promulgation, lack of progress with regard to infrastructure, changes to DoD's acquisition leadership and the USD(AT&L) reorganization, the OFPP …

Supreme Court Brief Amicus Curiae Of Administrative Law Scholars In Support Of Neither Party, Richard J. Pierce Jr, Robert L. Glicksman, Emily Hammond, Alan B. Morrison, Jonathan R. Siegel

GW Law Faculty Publications & Other Works

This brief on behalf of 29 administrative law scholars takes no position on whether Administrative Law Judges (ALJs) are employees or inferior officers. It urges the Court to issue an opinion that respects the decision that Congress made unanimously in 1946 to enact numerous statutory safeguards that assure that ALJs have decisional independence from the agencies where they work while assuring that agencies retain control over the policy content and legal basis for any decision made in an adjudication in which an ALJ presides.

The brief describes the fifteen years of study and deliberation that led to the unanimous decision …