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Look Up And Around: Musings On Mentors, Role Models, And Professionalism (Revised And Updated), Steven L. Schooner Jan 2020

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 U.S. Federal Trade Commission Workshop On Non-Compete Clauses, Richard J. Pierce Jr Jan 2020

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. Jan 2020

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 ...


Equity, Punishment, And The Company You Keep: Discerning A Disgorgement Remedy Under The Federal Securities Laws, Theresa Gabaldon Jan 2020

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 are ...


Trump Executive Order Calls For More Aggressive Use Of The Buy American Act—An Order Likely To Have More Political Than Practical Effect, Christopher R. Yukins Jan 2019

Trump Executive Order Calls For More Aggressive Use Of The Buy American Act—An Order Likely To Have More Political Than Practical Effect, Christopher R. Yukins

GW Law Faculty Publications & Other Works

President Trump recently issued an executive order, EO 13881, 84 Fed. Reg. 34257 (July 15, 2019), calling for more aggressive application of the Buy American Act. The new order calls for the Federal Acquisition Regulatory Council to strengthen domestic preferences under the Act. The order was long predicted as another step in the Trump administration’s advancing protectionism. Indeed, most of the Trump administration’s protectionist initiatives have been foreseeable from the outset, for the Trump administration has consistently embraced those initiatives that provide maximum political benefit at minimum cost. But developments since Trump took office—including new data that ...


The Forgotten Fisa Court: Exploring The Inactivity Of The Atrc, Aram Gavoor, Timothy M. Belsan Jan 2019

The Forgotten Fisa Court: Exploring The Inactivity Of The Atrc, Aram Gavoor, Timothy M. Belsan

GW Law Faculty Publications & Other Works

The Alien Terrorist Removal Court was established in 1996 after immense political pressure from the Reagan, Bush, and Clinton administrations and wide bipartisan support to serve as a forum to prosecute the most complex and difficult national security immigration removal cases while protecting vital classified information from public disclosure. Yet, after twenty-three years, this Article III court has not heard a single case.

This article provides a fresh and critical inquiry into this veritable zombie court that has fallen from the public consciousness, yet still exists with a standing cadre of designated judges. It fills a significant gap in the ...


The Scope Of The Removal Power Is Ripe For Reconsideration, Richard J. Pierce Jr Jan 2019

The Scope Of The Removal Power Is Ripe For Reconsideration, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

This article was requested by The Judges Journal for inclusion in a symposium devoted to the status of administrative law judges. Professor Pierce argues that the scope of the removal power is ripe for review; the Supreme Court should hold that the president must have the power to remove all officers with executive responsibilities at will to allow the president to perform the functions vested in the president by Article II; and the Court should hold that due process requires that officers with purely adjudicative functions must be insulated from potential control by the president by forbidding their removal without ...


Can A Sitting President Be Federally Prosecuted? The Founders' Answer, W. Burlette Carter Jan 2019

Can A Sitting President Be Federally Prosecuted? The Founders' Answer, W. Burlette Carter

GW Law Faculty Publications & Other Works

Can a sitting U.S. President be federally indicted or prosecuted? Exploring the history of impeachment and prosecution in (1) England and Great Britain, (2) colonial America, and (3) the states immediately after independence--and comparing these to the Founders' Constitutional discussions--this article considers how the Founders would have answered that question, were it posed to them today. Deviating from most analyses of the problem, it argues that the Founders would have viewed the question as jurisdictional, involving a conflict between Courts of Law on the one hand, and the Congress -- operating as a High Grand Jury (the House) and a ...


Suspension And Debarment In The U.S. Government: Comparative Lessons For The Eu’S Next Steps In Procurement, Christopher R. Yukins, Michal Kania Jan 2019

Suspension And Debarment In The U.S. Government: Comparative Lessons For The Eu’S Next Steps In Procurement, Christopher R. Yukins, Michal Kania

GW Law Faculty Publications & Other Works

Governments may exclude vendors from procurement awards for many reasons, including poor performance and corruption. Excluding a vendor, whether from a particular procurement (deciding that the vendor is not qualified for award) or from an entire procurement system (suspending or debarring the vendor), calls for a complex assessment of the performance and reputational risks posed by that vendor, and of the costs of exclusion. As the EU’s Member States shape their exclusion systems consistent with the EU’s procurement directives, the Member States may wish to draw on U.S. strategies for managing risks in contractor qualification: requiring that ...


Fourth Report Of The Special Rapporteur On Crimes Against Humanity, Sean D. Murphy Jan 2019

Fourth Report Of The Special Rapporteur On Crimes Against Humanity, Sean D. Murphy

GW Law Faculty Publications & Other Works

In August 2017, the United Nations International Law Commission completed the first draft of a set of articles that could be used as the basis for a Convention on the Prevention and Punishment of Crimes against Humanity. Thereafter, governments and others were invited to provide oral observations before the Sixth (Legal) Committee of the United Nations General Assembly and to submit written comments to the Commission with respect to the draft articles. All told, 52 governments made oral observations, while nearly 40 governments submitted written comments. In addition, written comments were submitted by seven international organizations (or offices thereof), including ...


Emerging Policy And Practice Issues (2018), Steven L. Schooner, David Berteau Jan 2019

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

GW Law Faculty Publications & Other Works

This paper/chapter, presented at the Thomson Reuters Government Contracts Year in Review Conference (covering 2018), attempts to identify the key evolving trends and issues in U.S. federal procurement for 2018 and beyond. 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. 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 ...


How Wto Dispute Settlement Succumbed To The Trump Administration, Steve Charnovitz Jan 2019

How Wto Dispute Settlement Succumbed To The Trump Administration, Steve Charnovitz

GW Law Faculty Publications & Other Works

The death of the WTO Appellate Body strikes a punishing blow to the WTO and stands as a signal accomplishment of the Trump Administration. Although the absence of an Appellate Body will not necessarily bring down the entire WTO dispute system, such an outcome may occur. This paper chronicles the key moments in the US government’s attack on WTO dispute settlement and the Appellate Body since 2016 by republishing the author's Blog posts over the past four years about the Appellate Body. One of the developments covered is the author’s efforts in 2017 to promote a rescue ...


#Metoo Meets The Ministerial Exception: Sexual Harassment Claims By Clergy And The First Amendment's Religion Clauses, Ira C. Lupu, Robert W. Tuttle Jan 2019

#Metoo Meets The Ministerial Exception: Sexual Harassment Claims By Clergy And The First Amendment's Religion Clauses, 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 unanimously held that the Religion Clauses of the First Amendment create a “ministerial exception” to certain employment laws. The ministerial exception bars claims by clergy of wrongful dismissal by religious institutions. In the years before Hosanna-Tabor, however, courts had ruled in four prominent decisions – two state, and two federal – that suits by clergy for sexual harassment
based on a pervasively hostile environment could go forward, notwithstanding the ministerial exception. The rise of the #MeToo movement invites new and more detailed consideration of the tension between the policies behind sexual harassment law and the constitutional values protected by the ministerial exception.

Part I describes the contours of the ministerial exception, explains its constitutional provenance, and highlights the issues left open by Hosanna-Tabor. Part II addresses relevant developments in the law of sexual harassment, from the pioneering work of Professor Catherine MacKinnon, through and including the Supreme Court’s decisions in Burlington Industries v. Ellerth and Faragher v. City of Boca Raton.

Part III explores the leading judicial opinions on the relationship between sexual harassment law and the ministerial exception. These include the germinal state court decisions in Black v. Snyder (Minnesota) and McKelvey v. Pierce (New Jersey), and the path breaking 9th Circuit decisions in Bollard v. California Province of the Society of Jesus, and Elvig v. Calvin Presbyterian Church. In the law that has emerged, the ministerial exception bars adverse job action claims by clergy but does not bar hostile environment claims. That brief statement, however, masks the analytical complexities and constitutional concerns arising from the interplay between harassment law and the ministerial exception. The sources of tension include the affirmative defenses, requiring employer-created mechanisms for reasonable prevention and correction in sexual harassment cases, as well as matters of discovery and choice of remedies.

Part IV applies our theoretical and doctrinal insights to the major questions raised by this interplay. We explain why the ministerial exception is constitutionally sound, but nevertheless should not bar damage claims for pervasive, hostile environments based on sex. We offer a tort-based theory of harm as the underpinning of hostile environment doctrine; analyze the tenuous connection between religious belief and sexual harassment of clergy; and unpack constitutional questions of entanglement between church and state that may arise when religious institutions face hostile environment lawsuits. Our analysis should be of interest to scholars of employment law and the Religion Clauses, lawyers litigating such cases, and judges who must decide them.


Digital Asset Planning For Minors, Natalie Banta, Naomi R. Cahn Jan 2019

Digital Asset Planning For Minors, Natalie Banta, Naomi R. Cahn

GW Law Faculty Publications & Other Works

No abstract provided.


Modern Military Justice: Cases And Materials, Lisa M. Schenck Jan 2019

Modern Military Justice: Cases And Materials, Lisa M. Schenck

GW Law Faculty Publications & Other Works

This textbook is about the modern military justice system of the United States. It covers court-martial procedures, substantive criminal law, and nonjudicial punishment under the Uniform Code of Military Justice, in addition to the Military Extraterritorial Jurisdiction Act, which gives federal courts jurisdiction over certain acts committed abroad. The Third Edition includes several recent cases and updates that address the significant changes made in the 2019 Manual for Courts-Martial, the Military Justice Act of 2016, and other recent legislation.


Contractual Tax Reform, Michael B. Abramowicz, Andrew `Blair-Stanek Jan 2019

Contractual Tax Reform, Michael B. Abramowicz, Andrew `Blair-Stanek

GW Law Faculty Publications & Other Works

One-size-fits-all taxation fails to accommodate diverse taxpayer circumstances. This Article proposes allowing taxpayers to contract into alternative tax regimes administered by private intermediaries. Participating taxpayers would make payments to the intermediaries pursuant to contract, and the intermediaries would be required to pay to the government at least as much as these taxpayers would have paid the government otherwise. That amount is determined based on the actual tax receipts of a control group, taxpayers who wish to contract with an intermediary but instead are chosen at random to continue under the status quo. These alternative tax regimes might better accommodate taxpayers ...


Tax Experimentation, Michael B. Abramowicz Jan 2019

Tax Experimentation, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

Random experiments could allow the government to test tax policies before enactment into general law. Such experiments can be revenue-neutral, with the tax authority ensuring ex post that average tax revenues received from taxpayers in the treatment and control groups are equal. Taxpayers might thus volunteer even for experiments that would broaden the tax base, for example by eliminating deductions. Continued participation by taxpayers in such experiments would indicate that the proposed reforms are efficient at least if externalities are disregarded. Non-revenue-neutral experiments raise greater concerns about horizontal inequity, but may be helpful in addressing questions about effects of tax ...


Blockchain-Based Insurance, Michael B. Abramowicz Jan 2019

Blockchain-Based Insurance, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

To date, the insurance industry's interest in the blockchain has focused largely on the possibility of recording insurance entitlements in a transparent way. While the blockchain may produce significant efficiencies of this sort, it has considerably greater transformative potential. Smart contracts could serve as a substitute for insurance companies, conventionally conceived. Such contracts could perform the function of deciding whether claims should paid, without the need for or possibility of judicial intervention. The blockchain and smart contracts are difficult to regulate, because ownership and decisionmaking can be decentralized. Blockchain-based insurance may successfully provide a means of avoiding expensive regulation ...


The Very Brief History Of Decentralized Blockchain Governance, Michael B. Abramowicz Jan 2019

The Very Brief History Of Decentralized Blockchain Governance, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

An emergent form of blockchain governance involves the use of formal games that give participants incentives to identify focal resolutions to normative questions. This symposium contribution provides a brief survey of the literature proposing and critiquing the use of such mechanisms, and it evaluates early laboratory and real-world experiments with this approach to decentralized decisionmaking.


Originalism And Structural Argument, Thomas Colby Jan 2019

Originalism And Structural Argument, Thomas Colby

GW Law Faculty Publications & Other Works

The "new originalism" is all about the text of the Constitution. Originalists insist that the whole point of originalism is to respect and follow the original meaning of the text, and that originalism derives its legitimacy from its unwavering focus on the text alone as the sole basis of higher law. And yet, many leading Supreme Court decisions in matters of great importance to conservatives—in opinions authored and joined by originalist judges, and often praised by originalist scholars—are seemingly not grounded in the constitutional text at all. They rest instead on abstract structural argument: on freestanding principles of ...


Dismantling The Trusts And Estates Canon, Naomi R. Cahn Jan 2019

Dismantling The Trusts And Estates Canon, Naomi R. Cahn

GW Law Faculty Publications & Other Works

This Article steps back and reflects on how new perspectives from gender, race, class, and sexual orientation have challenged existing trusts and estates canonical narratives on a number of different levels, both in terms of deepening trusts and estates but also expanding it—that is, challenging core concepts of the field. Part I celebrates how new perspectives have challenged the core trusts and estates canonical narratives. These new perspectives challenge basic concepts of wealth and do the following: 1) bring in alternative conceptions of wealth and of inheritance; 2) question the biases of inheritance law as they reflect conventional social ...


Buckley 2.0: How Would The Buckley Court Decide Buckley Today?, Miriam Galston Jan 2019

Buckley 2.0: How Would The Buckley Court Decide Buckley Today?, Miriam Galston

GW Law Faculty Publications & Other Works

If you read Supreme Court campaign finance cases, you will be struck by the disconnect between the lofty rhetoric used to justify the constitutional protections afforded political speech and the impoverished sound bites and hyperbolic attack ads that dominate contemporary electoral communications. The origin of this disconnect is in large part two phenomena. First, in the last decade the Court has failed to take the factual record seriously and, as a result, makes generalizations that are belied by contemporary campaign practices. Relatedly, the Court has adopted doctrines that co-exist in uneasy relationships with campaign finance doctrines of longstanding. As a ...


Grading Trump's China Trade Strategy, Steve Charnovitz Jan 2019

Grading Trump's China Trade Strategy, Steve Charnovitz

GW Law Faculty Publications & Other Works

Although much has been written about the ongoing trade war between China and the United States from 2017 to early 2019, this literature omits detailed examination of the substance of the US trade complaints about China. This article seeks to fill that gap in the literature by unpacking the 20 most prominent complaints that are being levelled by the Trump Administration. The article finds that half of the complaints involve behaviour that is contrary to WTO rules and yet the Trump Administration has lodged only three WTO cases against that behaviour. The Trump Administration justifies this omission on the ground ...


A Realistic Version Of Campaign Finance Reform And Two Essential Steps Toward A Return To Effective Governance, Richard J. Pierce Jr Jan 2019

A Realistic Version Of Campaign Finance Reform And Two Essential Steps Toward A Return To Effective Governance, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

This essay is a contribution to a symposium on "The Administration of Democracy." Professor Pierce argues in support of a system of campaign finance reform that would eliminate all limits on contributions to candidates and require all candidate campaigns and PACs to report promply all contributions. He argues that such a system would respect freedom of speech, reduce the amount of irresponsible negative advertising and allow the members of the public to decide whether they want to vote for a candidate who accepts money from sources they dislike or distrust. Professor Pierce also urges major changes to our methods of ...


An Empirical Assessment Of Agency Mechanism Choice, David L. Markell, Robert L. Glicksman, Justin Sevier Jan 2019

An Empirical Assessment Of Agency Mechanism Choice, David L. Markell, Robert L. Glicksman, Justin Sevier

GW Law Faculty Publications & Other Works

Administrative agencies rely heavily on the foundational legal mechanisms of the administrative state – rulemaking, licensing, and enforcement adjudication – to pursue their statutory objectives. These foundational mechanisms differ from each other in critical ways, including the applicable procedures (and the participatory rights that accompany them), the legal effect of their use, and the nature and extent of oversight (including judicial oversight) that accompany their use. As a result, an agency’s choice of which mechanism(s) to use to implement its statutory mission has significant impacts on key legitimizing features and values of the administrative state.

This Article helps to fill ...


Sham Marriage And Privilege, Stephen A. Saltzburg Jan 2019

Sham Marriage And Privilege, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

United States v. Fomichev, 899 F.3d 766 (9th Cir. 2018), discusses the effect that a sham marriage has on marital privileges. The court draws a line between the spousal immunity (or spousal witness) privilege and the marital communications privilege.


Delegation, Time, And Congressional Capacity: A Response To Adler And Walker, Richard J. Pierce Jr Jan 2019

Delegation, Time, And Congressional Capacity: A Response To Adler And Walker, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

This is a response to an article by Jonathan Adler and Chris Walker. In Delegation and Time, Adler and Walker introduce an important new way of thinking about broad congressional delegations of power. After reviewing the traditional arguments against broad congressional delegations of power they note that broad delegations increasingly raise a serious temporal problem.

In their words, “broad congressional delegations of authority at one time period become a source of authority for agencies to take action at a later time that was wholly unanticipated by the enacting Congress or could no longer receive legislative support.” They also note that ...


Takeaways From The Conference On The Future Of White House Regulatory Oversight And Cost-Benefit Analysis, Richard J. Pierce Jr Jan 2019

Takeaways From The Conference On The Future Of White House Regulatory Oversight And Cost-Benefit Analysis, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

This is Professor Pierce’s summary of a conference on the future of White House regulatory oversight and cost-benefit analysis (cba), along with an explanation of his views on the controversial issues that were discussed.

The participants agreed that OIRA should encourage ex post evaluations of rules, extend oversight to independent agencies, and continue its efforts to maximize the transparency of the review process. They also agreed that Congress should provide OIRA adequate funding and staffing.

Professor Pierce explained why he shares the concern of some of the other participants that the major changes that the Trump Administration is making ...


The International Law Origins Of American Federalism, Anthony J. Bellia Jr., Bradford R. Clark Jan 2019

The International Law Origins Of American Federalism, Anthony J. Bellia Jr., Bradford R. Clark

GW Law Faculty Publications & Other Works

Courts and commentators have long struggled to reconcile robust federalism doctrines with the text of the Constitution. These doctrines include state sovereign immunity, the anti-commandeering doctrine, and the equal sovereignty of the States. Supporters of such doctrines have generally emphasized the history, structure, and purpose of the Constitution over its precise text. Critics of such doctrines have charged that they lack adequate support in the Constitution and are the product of improper judicial activism. This Article reconciles federalism and textualism by looking to a surprising source—international law. The Constitution contains numerous references to “States”—a term of art drawn ...


Discrimination And The Regional Human Rights Protection Systems: The Enigma Of Effectiveness, Rosa Celorio Jan 2019

Discrimination And The Regional Human Rights Protection Systems: The Enigma Of Effectiveness, Rosa Celorio

GW Law Faculty Publications & Other Works

Despite the creation of regional human rights protection systems and their efforts, the problems of discrimination, exclusion, and marginalization continue to be widespread, posing formidable barriers for many persons to exercise their basic civil, political, economic, social, and cultural rights. These considerations raise the question of whether the regional human rights protection systems in the Americas and Europe can really impact substantially the eradication of the problem of discrimination, which is part of their mandate.

The author contends in this article that the Inter-American and European Systems do have potential to contribute to the prevention and response to the problem ...