Law Commons^™

Mckinsey & Company’S Conduct And Conflicts At The Heart Of The Opioid Epidemic, Hearing Before The House Committee On Oversight And Reform, Jessica Tillipman

GW Law Faculty Publications & Other Works

On April 27, 2022, Jessica Tillipman, Assistant Dean for Government Procurement Law Studies at The George Washington University Law School testified before the House Committee on Oversight and Reform regarding McKinsey & Company's potential Organizational Conflict of Interest between its contracts with the Food & Drug Administration (FDA) and its commercial, opioid manufacturer clients. Her testimony addressed the longstanding need to update and clarify the current legal framework governing Organizational Conflicts of Interest (OCIs) in the Federal Acquisition Regulation (FAR) and the importance of government contractors maintaining strong internal ethics and compliance programs.

Organizational Conflicts Of Interest: Cautionary Tales, Jessica Tillipman

GW Law Faculty Publications & Other Works

A recent, high-profile investigation involving McKinsey & Company (McKinsey) and its contracts with the Food and Drug Administration (FDA) has reminded us that organizational conflicts of interest (OCIs) are an integrity issue that never should be written off as a check-the-box exercise during the procurement process. This incident highlighted the need to address critical gaps in this area of the law. This article appeared in the August 2022 issue of Contract Management magazine published by the National Contract Management Association. Used with permission.

Bargaining In The Shadow Of The Debt Ceiling: When Negotiating Over Spending And Tax Laws, Congress And The President Should Consider The Debt Ceiling A Dead Letter, Neil H. Buchanan, Michael C. Dorf

GW Law Faculty Publications & Other Works

If the debt ceiling is inconsistent with existing spending and taxing laws, what must the President do? In earlier work, we argued that when Congress creates a “trilemma” — making it impossible for the President to spend as much as Congress has ordered, to tax only as much as Congress has ordered, and to borrow no more than Congress has permitted — the Constitution requires the President to choose the least unconstitutional path. In particular, he must honor Congress’s decisions and priorities regarding spending and taxing, and he must issue enough debt to do so. Here, we extend the analysis …

The Congressional War On Contractors, Jessica Tillipman

GW Law Faculty Publications & Other Works

The U.S. Suspension & Debarment regime is designed to ensure that the federal government does business only with “responsible” partners. One of the most fundamentally (and frequently) misunderstood aspects of the FAR 9.4 suspension & debarment system is that these tools are only to be used for the purpose of protecting the Government, not to punish contractors for their past misconduct. Unfortunately, recent congressional initiatives demonstrate many legislators’ desire to transform debarment into a tool of punishment by banishing contractors from the procurement system “with little consideration of whether such action is needed or fair."

Instead of focusing on the …

Nullifying The Debt Ceiling Threat Once And For All: Why The President Should Embrace The Least Unconstitutional Option, Neil H. Buchanan, Michael C. Dorf

GW Law Faculty Publications & Other Works

In August 2011, Congress and the President narrowly averted economic and political catastrophe, agreeing at the last possible moment to authorize a series of increases in the national debt ceiling. This respite, unfortunately, was merely temporary. The amounts of the increases in the debt ceiling that Congress authorized in 2011 were only sufficient to accommodate the additional borrowing that would be necessary through the end of 2012. In an economy that continued to show chronic weakness -- weakness that continues to this day -- the federal government would pre-dictably continue to collect lower-than-normal tax revenues and to make higher-than-normal expenditures, …

The Alien Tort Statute And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia Jr.

GW Law Faculty Publications & Other Works

Courts and scholars have struggled to identify the original meaning of the Alien Tort Statute (ATS). As enacted in 1789, the ATS provided "[t]hat the district courts... shall... have cognizance... of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States." The statute was rarely invoked for almost two centuries until, in the 1980s, lower federal courts began reading the statute expansively to allow foreign citizens to sue other foreign citizens for violations of modern customary international law that occurred outside the United States. In 2004 …

The Political Branches And The Law Of Nations, Bradford R. Clark

GW Law Faculty Publications & Other Works

In the late eighteenth and early nineteenth centuries, the U.S. Supreme Court went out of its way to follow background rules of the law of nations, particularly the law of state-state relations. As we have recently argued, the Court followed the law of nations because adherence to such law preserved the constitutional prerogatives of the political branches to conduct foreign relations and decide momentous questions of war and peace. Although we focused primarily on the extent to which the Constitution obligated courts to follow the law of nations in the early republic, the explanation we offered rested on an important, …

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 …