Law Commons^™

Graduate Level Distance Learning: Enhanced Student Experience, Significant Scalability Challenges: A Multiyear Case Study, Karen Thornton, Steven L. Schooner, Markus Speidel

GW Law Faculty Publications & Other Works

This article describes our experiences and "lessons learned" providing degree-based distance (online) education to graduate students (studying business, law, and policy related to government contracts or public procurement). Temporal note: our pilot, and the five years of experience described in this case study, predate the 2020 Coronavirus Pandemic emergency distance teaching transition.

Among other things, we discuss our experiences with regard to fundamentally rethinking our pedagogical approach, "flipping the classroom," chunking, and scaffolded learning. We extol the benefits of working with, and being open to, advice from experienced instructional designers.

We conclude that embracing distance education, at least in a …

The Combination Of Chevron And Political Polarity Will Have Awful Effects, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

In this contribution to the annual administrative law symposium sponsored by Duke Law Journal, Professor Pierce explains why he has changed his position and is now urging the Supreme Court to replace the Chevron test with the Skidmore test. He supported the Chevron test for decades because it gives politically accountable agency heads, rather than politically unaccountable judges, the power to make policy decisions and because it increases the number of federal statutes that have the same meaning in all parts of the country.

Professor Pierce now believes that the country can no longer afford the cost of the Chevron …

‘Warming Up’ To Sustainable Procurement, Steven L. Schooner, Markus Speidel

GW Law Faculty Publications & Other Works

Procurement professionals will play a critical role in the belated but necessary effort to slow the pace of climate change. That critical, evolved role will lie in sustainable procurement, which, if effectively implemented, will dramatically alter markets and fundamentally change purchasing behaviors. To be effective, procurement professionals will need to rethink how we define our profession, assess our outcomes, and bring value to our government customers. Successfully establishing a sustainable procurement regime will require dramatic change, including, among other things, overcoming the persistent tyranny of low price, understanding and adopting lifecycle costing, considering externalities in the value proposition, and, of …

Look Up And Around: Musings On Mentors, Role Models, And Professionalism (Revised And Updated), Steven L. Schooner

GW Law Faculty Publications & Other Works

As part of Contract Management magazine's 2020 Professional Development issue, this (revised and updated) article offers a rather simple overarching suggestion for successful professionals and future leaders: look up and around. The article encourages readers to identify mentors, embrace the strengths of their role models, and open themselves up to learn from others, evolve, and grow. The article discusses, among other things, education, networking, professional development (and, of course, writing), and the power of optimism.

The Death Of The Genus Claim, Dmitry Karshtedt, Mark A. Lemley, Sean B. Seymore

GW Law Faculty Publications & Other Works

The central feature of patent law in the chemical, biotechnology, and pharmaceutical industries is the genus claim – a patent that covers not just one specific chemical but a group of related chemicals. Genus claims are everywhere, and any patent lawyer will tell you they are critical to effective patent protection.

But as we show in this article, the law has changed dramatically in the last twenty-five years, to the point where it is no longer possible to have a valid genus claim. Courts almost always hold them invalid. Remarkably, they do this without having acknowledged that they have fundamentally …

The German Right To Fiscal Stability And The Counter-Majoritarian Difficulty: The Pspp Judgment Of 5 May 2020, Francesca Bignami

GW Law Faculty Publications & Other Works

The PSPP litigation involved the European Central Bank’s (ECB’s) Public Sector Purchase Programme for the purchase of government bonds on the secondary market with the aim, among others, of combating deflation. Although the Court of Justice of the EU (CJEU) found the PSPP lawful, the German Federal Constitutional Court (FCC) disagreed: On May 5, 2020, the FCC held that the CJEU’s judgment was not binding in Germany and that the PSPP was unlawful and required further ECB action to bring it into compliance with German law.

This article contributes to the growing scholarship on the PSPP litigation by analyzing the …

Equity, Punishment, And The Company You Keep: Discerning A Disgorgement Remedy Under The Federal Securities Laws, Theresa Gabaldon

GW Law Faculty Publications & Other Works

Since its inception in 1934, the Securities and Exchange Commission (the “Commission” or the “SEC”) has wielded statutory authority to seek injunctive relief for violations of the federal securities laws. Since 1970 courts have, at the Commission’s behest and without much analysis, ordered violators to disgorge profits – make that lots and lots of profits – gained in the course of their wrongdoing. In some instances, the profits are returned to victims. In others, either because the victims are too many and too scattered or because the violation is a victimless one such as engaging in bribery, the ill-gotten gains …

The Compliance Mentorship Program: Improving Ethics And Compliance In Small Government Contractors, Jessica Tillipman, Vijaya Surampudi

GW Law Faculty Publications & Other Works

Over the past decade, the anti-corruption, ethics, and compliance landscape has changed dramatically. This is a direct consequence of a global anti-corruption enforcement effort led by the United States through its enforcement of the Foreign Corrupt Practices Act. The increase in enforcement has also been spurred by the adoption of several multilateral anti-corruption agreements, such as the Organization for Economic Co-operation and Development (OECD) Anti-Bribery Convention and the United Nations Convention Against Corruption (UNCAC). These agreements have spurred several countries to enact anti-corruption laws, such as the U.K. Bribery Act, Brazil’s Clean Company Act, and France’s Loi Sapin II. The …

Competition Policy Retrospective: The Formation Of The United Launch Alliance And The Ascent Of Spacex, William E. Kovacic

GW Law Faculty Publications & Other Works

In May 2005, Boeing and Lockheed Martin announced plans to form the United Launch Alliance, a joint venture which combined the only two suppliers of medium-to-heavy national security related launch services to the U.S. government. The Federal Trade Commission reviewed the transaction’s antitrust implications and, in consultation with the Department of Defense, approved the deal in October 2006 subject to restrictions governing ULA’s relationship other satellite manufacturers and providers of launch services. The DOD endorsed the transaction on the ground that the joint venture would increase launch reliability by concentrating production and launch services in a single team rather than …

Covid-19: Lessons Learned In Public Procurement. Time For A New Normal?, Laurence Folliot Lallion, Christopher R. Yukins

GW Law Faculty Publications & Other Works

The COVID-19 crisis upended markets and assumptions in public procurement, and posed an almost existential threat to traditional procurement systems. Seismic changes in economic relationships – governments were no longer monopsonists, government officials failed as economic intermediaries between suppliers and the public, and supplies that were traditionally treated as private (such as medical equipment) suddenly became “public” goods under worldwide demand. Traditional trade rules were rendered irrelevant, as the goal was no longer simply to open individual procurements but rather to open borders to intense global demand. Although the disruption was revolutionary, ironically the solution is to return to first …

Effects Of The Covid-19 Pandemic On The Work Of The International Law Commission, Sean D. Murphy

GW Law Faculty Publications & Other Works

The International Law Commission (ILC) was scheduled to hold its seventy-second session from April 27 to June 5 and from July 6 to August 7, 2020 in Geneva. 1 The COVID-19 pandemic, however, precluded the Commission members traveling to and meeting in Geneva. This short essay explains that it became necessary to postpone the session until 2021 and to address various collateral matters, including whether the current five-year terms of Commission members should be extended by one year, so as to conclude in 2022 instead.

Initiative On Quality Shareholders Highlights, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

Highlights of a research initiative that formalizes the longstanding intuition that the sorts of shareholders a company attracts influences its performance. Contains lists of the best shareholders in corporate America, measured by long holding periods and high portfolio concentration, and lists of the companies that attract such shareholders in high density. Notes and explains how such shareholders and companies have been prone to outperform rivals. Explores what quality shareholders look for in companies and a dozen of the practices and policies that, evidence shows, companies can use to attract quality shareholders. Includes bibliographic references and suggestions for further research.

Brand Name Or Equal: Without "Equal," It's Not Competitive, Steven L. Schooner

GW Law Faculty Publications & Other Works

One of the more common rules in federal government procurement is that the Government may describe its needs to the private sector by specifying a “brand name” product, as long as the Government adds the words “or equal” to the brand name and articulates the product’s salient physical, functional, or performance characteristics that are essential to the Government’s needs. This broadens the potential for competition and helps reduce the government's reliance on unduly restrictive specifications.

Two recent examples - one the subject of a GAO bid protest decision, the other a recently posted commercial-item procurement - suggest that, while some …

Covid-19: Lessons Learned In Public Procurement. Time For A New Normal?, Laurence Folliot Lalliot, Christopher R. Yukins

GW Law Faculty Publications & Other Works

The COVID-19 crisis upended markets and assumptions in public procurement, and posed an almost existential threat to traditional procurement systems. Seismic changes in economic relationships – governments were no longer monopsonists, government officials failed as economic intermediaries between suppliers and the public, and supplies that were traditionally treated as private (such as medical equipment) suddenly became “public” goods under worldwide demand. Traditional trade rules were rendered irrelevant, as the goal was no longer simply to open individual procurements but rather to open borders to intense global demand. Although the disruption was revolutionary, ironically the solution is to return to first …

Probable Cause With Teeth, Cynthia Lee

GW Law Faculty Publications & Other Works

The killing of George Floyd, along with other high profile cases of police officers using fatal force against Black Americans, has led to widespread protests and prompted calls for legal reform. One criticism of the legal system is that police officers often stop, interrogate, and arrest Black Americans for activities that would rarely lead to intervention if engaged in by white individuals. This disparity calls into question whether police officers have been arresting individuals with the quantum of suspicion of wrongdoing that should be required by law.

The Fourth Amendment requires police to have probable cause that a crime has …

The Trans Panic Defense Revisited, Cynthia Lee

GW Law Faculty Publications & Other Works

Violence against transgender individuals in general, and trans women of color in particular, is a significant problem today. When a man is charged with murdering a transgender woman, a common defense strategy is to assert what is called the trans panic defense. The trans panic defense is not a traditional criminal law defense. Nor, despite its name, is it recognized as a stand-alone defense. Rather, trans panic is a defense strategy associated with the provocation or heat of passion defense. A murder defendant asserting trans panic will claim that the discovery that the victim was a transgender female—an individual thought …

The U.S. Federal Trade Commission Workshop On Non-Compete Clauses, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

On January 9, 2020, the FTC held a workshop on non-compete clauses. Professor Pierce wrote this article for a journal that is published in London primarily lawyers and economists in the UK and the EU. He describes the powerful evidence that supports the need for the FTC to take some action to reduce the growing trend to include non-compete clauses in many employment contracts and the difficult task the FTC faces in deciding how to address that problem.

Comment Letter In Opposition To The Occ's Proposed "Valid-When-Made" Rule, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

This comment letter responds to a proposed rule issued by the Office of the Comptroller of the Currency (OCC), which would “codify” an alleged federal common-law “principle” known as “valid-when-made.” The proposed rule would amend two of the OCC’s regulations – 12 C.F.R. 7.4001 and 12 C.F.R. 160.110 – by providing that “interest on a loan that is permissible” for a national bank or a federal savings association, under 12 U.S.C. 85 or 12 U.S.C. 1463(g)(1), “shall not be affected by the sale, assignment, or other transfer of the loan.” 84 Fed. Reg. 64229, 64230-31 (Nov. 21, 2019). Thus, the …

Enhanced Debriefings: A Toothless Mandate?, Steven L. Schooner

GW Law Faculty Publications & Other Works

This short piece discusses the (alleged) manner in which the Department of Defense (DoD) conducted the disappointed offeror's post-award debriefing following the award of the $10 billion, $10-year Joint Enterprise Defense Infrastructure (JEDI) cloud computing contracting opportunity. While the quality of DoD’s debriefing is unlikely to alter the outcome in the pending protest litigation, it seems inconsistent with policy, the current trend favoring greater transparency, and the recent Congressional mandate for “enhanced debriefings.”

The piece suggests that, consistent with decades of study and experience, debriefings make sense, but only if they are informative or, more to the point, responsive. Conversely, …

Withdrawing The United States From The Wto Government Procurement Agreement (Gpa): Assessing Potential Damage To The U.S. And Its Contracting Community, Christopher R. Yukins

GW Law Faculty Publications & Other Works

The Trump administration is mulling an executive order that would trigger U.S. withdrawal from the WTO Agreement on Government Procurement (GPA), according to reports from Bloomberg and POLITICO. Withdrawal from the GPA would deprive U.S. suppliers of a key point of access to public procurement markets internationally, under a world-wide agreement which has set global standards and opened over a trillion dollars annually in business opportunities. See, e.g., Anderson et al., “Assessing the Value of Future Accessions to the WTO Agreement on Government Procurement (GPA): Some New Data Sources, Provisional Estimates, and An Evaluative Framework for Individual WTO Members Considering …

Comments Of Richard J. Pierce, Jr. On Promoting The Rule Of Law Through Transparency And Fairness In Civil Administrative Enforcement And Adjudication Docket Number Omb-2019-0006, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

On January 30, 2020, OMB published a Notice entitled “on Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication.” OMB solicited comments by March 16 on the issues raised by eleven questions. The wording of the Notice and President Trump’s reference to it in his State of the Union address strongly suggest that the President plans to use the record created by the Notice as the basis for an Executive Order in which he will limit in many ways the actions that agencies can take in investigations and enforcement proceedings.

In these comments, Professor …

The Case For Empowering Quality Shareholders, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

Abstract Anyone can buy stock in a public company, but not all shareholders are equally committed to a company’s long-term success. In an increasingly fragmented financial world, shareholders’ attitudes toward the companies in which they invest vary widely, from time horizon to conviction. Faced with indexers, short-term traders, and activists, it is more important than ever for businesses to ensure that their shareholders are dedicated to their missions. Today’s companies need “quality shareholders,” as Warren Buffett called those who “load up and stick around,” or buy large stakes and hold for long periods. While scholars in recent years have extensively …

The Myth Of The Privacy Paradox, Daniel J. Solove

GW Law Faculty Publications & Other Works

In this article, Professor Daniel Solove deconstructs and critiques the privacy paradox and the arguments made about it. The “privacy paradox” is the phenomenon where people say that they value privacy highly, yet in their behavior relinquish their personal data for very little in exchange or fail to use measures to protect their privacy.

Commentators typically make one of two types of arguments about the privacy paradox. On one side, the “behavior valuation argument” contends behavior is the best metric to evaluate how people actually value privacy. Behavior reveals that people ascribe a low value to privacy or readily trade …

Emerging Policy And Practice Issues (2019), Steven L. Schooner

GW Law Faculty Publications & Other Works

This paper/chapter, presented at the Thomson Reuters Government Contracts Year in Review Conference (covering 2019), attempts to identify the key evolving trends and issues in U.S. federal procurement for 2019-2020 and beyond. Consistent with prior practice, this chapter offers extensive coverage of the federal procurement and defense spending trends and attempts to predict what lies ahead, particularly with regard to legislative and executive activity. This year's paper discusses, among other things, the high degree of uncertainty currently being experienced in the public procurement sphere, dramatic increases to the micro-purchase and simplified acquisition thresholds, the work of the Congressionally-mandated Section 809 …

Postscript Ii: Enhanced Debriefings, Steven L. Schooner

GW Law Faculty Publications & Other Works

This short piece, which supplements the discussion from February 2020 (also on SSRN) discusses the Department of Defense (DoD) post-award debriefing of the disappointed offeror (Amazon) following the award (to Microsoft) of the $10 billion, $10-year Joint Enterprise Defense Infrastructure (JEDI) cloud computing contracting opportunity.

This supplemental discussion derives from the extraordinary, 300+ page, DoD Inspector General review and report on the procurement (issued in April 2020) and highlights a number of the surprises in the IG report, including: DoD's assertion of a “presidential communications privilege” to avoid responding to inquiries related to alleged White House influence of the procurement; …

Sentenced To Surveillance: Fourth Amendment Limits On Electronic Monitoring, Kate Weisburd

GW Law Faculty Publications & Other Works

As courts and legislatures increasingly recognize that “digital is different” and attempt to limit government surveillance of private data, one group is conspicuously excluded from this new privacy-protective discourse: the five million people in the United States on probation, parole, or other forms of community supervision. This Article is the first to explore how warrantless electronic surveillance is dramatically transforming community supervision and, as a result, amplifying a growing privacy-protection disparity: those in the criminal legal system are increasingly losing privacy protections even while those not in the system are increasingly gaining privacy protections. The quickly expanding use of GPS-equipped …

The Fdic Should Not Allow Commercial Firms To Acquire Industrial Banks, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

On March 17, 2020, the Federal Deposit Insurance Corporation (“FDIC”) published a proposed rule (the “Proposed ILC Rule”), which would govern applications for deposit insurance, changes in control, and mergers involving FDIC-insured industrial banks and industrial loan companies (“ILCs”). If adopted, the Proposed ILC Rule would open the door to widespread acquisitions of ILCs by commercial firms engaged in industrial, retail, information technology, and other types of nonfinancial activities. In addition, on March 18, 2020, the FDIC approved deposit insurance applications filed by ILCs owned by two commercial firms – Square and Nelnet.

The FDIC’s issuance of the Proposed ILC …

What’S Wrong About The Elective Share “Right”?, Naomi R. Cahn

GW Law Faculty Publications & Other Works

This Article examines one form of property rights available to a surviving
spouse, the elective share. The elective share serves as an override to a
testator’s stated intent by allowing the surviving spouse to choose to take a
portion of the decedent’s estate — even if the will explicitly disinherits the
surviving spouse. The Article analyzes a recent five-year period of state
cases raising elective share issues with the goal of determining the
circumstances under which an elective share is most likely to be contested.

The reported elective share disputes typically involve a subsequent spouse
challenging a will that leaves …

Eu Law In Populist Times: Crises And Prospects, Francesca Bignami

GW Law Faculty Publications & Other Works

EU Law in Populist Times: Crises and Prospects analyzes the sovereignty-sensitive EU law that has emerged over the past decade—in economic policy, human migration, internal security, and constitutional fundamentals (rule-of-law policies to combat democratic backsliding). These are legal areas at the heart of state sovereignty, over which the EU’s prerogatives accelerated following the multiple crises that hit beginning in 2009. They are also EU policies that occupy center stage in the acrimonious debates that have emerged between European establishment parties and populist political forces, precisely because of the huge economic, social, and constitutional stakes involved in reaching into core state …

Misinformation Mayhem: Social Media Platforms’ Efforts To Combat Medical And Political Misinformation, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

Social media platforms today are playing an ever-expanding role in shaping the contours of today’s information ecosystem. The events of recent months have driven home this development, as the platforms have shouldered the burden and attempted to rise to the challenge of ensuring that the public is informed – and not misinformed – about matters affecting our democratic institutions in the context of our elections, as well as about matters affecting our very health and lives in the context of the pandemic. This Article examines the extensive role recently assumed by social media platforms in the marketplace of ideas in …