Law Commons^™

Hipaa Turns 10: Analyzing The Past, Present, And Future Impact, Daniel J. Solove

GW Law Faculty Publications & Other Works

This essay, written in a journalistic style, examines HIPAA over the past decade. The essay discusses the creation of HIPAA, the evolution of HHS enforcement, the impact of the HITECH Act, and the overall influence and effect of HIPAA on healthcare providers and organizations using medical data. Professor Solove combines analysis with interviews of key regulators and practitioners.

The Long, Lingering Shadow: Slavery, Race, And Law In The American Hemisphere (Introduction), Robert J. Cottrol

GW Law Faculty Publications & Other Works

This essay is the introduction to the recently published book, The Long, Lingering Shadow: Slavery, Race , and Law in the American Hemisphere (University of Georgia Press, 2013). Students of American history know of the law’s critical role in developing a system of racial hierarchy in the United States. The Long, Lingering Shadow shows that this history is best appreciated in a comparative perspective. The volume looks at the parallel legal histories of race relations in the United States, Brazil, and Spanish America. It takes the reader on a journey that begins with the origins of New World slavery in …

The Family And The Market At Wal-Mart, Naomi Schoenbaum

GW Law Faculty Publications & Other Works

The Supreme Court’s decision in Wal-Mart Stores v. Dukes received much attention for what it means for collective litigation. Far less attention has been paid to what the case reveals about sex discrimination law. This symposium contribution uses an overlooked aspect of the Dukes case — the challenge to Wal-Mart’s relocation policy — as a lens to explore employment discrimination law’s failure to adequately take account of employees’ families in a way that further entrenches the family-market divide and seriously hinders the promise of sex discrimination law.

The challenge to the relocation policy exposes how employment discrimination law simultaneously pays …

Deconstructing Fragmentation: Koskenniemi's 2006 Ilc Project, Sean D. Murphy

GW Law Faculty Publications & Other Works

This essay – a contribution to a workshop organized to assess Martti Koskenniemi’s scholarship – focuses principally on Koskenniemi’s work as a member of the International Law Commission (ILC) from 2002 to 2006, and in particular his chairmanship of an ILC study group. Unlike Koskenniemi’s scholarship, which is solely his own or perhaps his in conjunction with a co-author, the ILC study group report on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (Report), and the 42 associated conclusions, were a group effort, though it is well-understood that Koskenniemi was the driving force in …

What A Difference A Year Makes: The International Court Of Justice's 2012 Jurisprudence, Sean D. Murphy

GW Law Faculty Publications & Other Works

An analysis of any particular decision of the International Court of Justice sometimes misses broader, cross-cutting themes that animate the Court’s jurisprudence. This essay, prepared for an April 2013 symposium at the European University Institute, Robert Schuman Centre for Advanced Studies, in Florence, explores a few of the themes that emerged from the Court’s 2012 jurisprudence. First, notwithstanding the development of treaty regimes across a broad array of international law, there remains an enduring relevance of customary international law and general principles of law as sources of international law. Second, when identifying rules of customary international law, there is an …

Hostess And The Search For Workplace Dignity, Michael Selmi

GW Law Faculty Publications & Other Works

This symposium essay uses the recent bankruptcy filing by Hostess, which was prompted by the refusal of workers to take additional pay cuts to keep the company afloat, to explore the issue of workplace dignity. The Hostess bakery workers, I suggest, took a stand that proclaimed that employers could not assume that workers would do anything to keep their jobs, that some jobs were not worth having or keeping, particularly when the company had repeatedly failed to provide required pension payments to its workers. I also discuss the various ways in which consumers can seek to influence employment policies, though …

Turning A Blind Eye: Why Washington Keeps Giving In To Wall Street, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

As the Dodd–Frank Act approached its third anniversary in mid-2013, federal regulators failed to meet statutory deadlines for more than 60% of the required implementing rules. The financial industry has undermined Dodd–Frank by lobbying regulators to delay or weaken rules, by suing to overturn completed rules, and by pushing for legislation to freeze agency budgets and to repeal Dodd–Frank’s key mandates. The financial industry did not succeed in its efforts to prevent President Obama’s re-election in 2012. Even so, the Obama Administration has continued to court Wall Street’s leaders and has not placed a high priority on implementing Dodd–Frank.

At …

Rethinking The World Bank’S Sanctions System, Christopher R. Yukins

GW Law Faculty Publications & Other Works

The World Bank is reviewing its system for suspending and debarring contractors (known formally as the World Bank sanctions system). The system is used to suspend and debar contractors that have engaged in fraud or corruption (and other enumerated bad acts) related to Bank-financed projects. After reviewing the sanctions process, and identifying what appear to be the Bank’s current goals in its sanctions system (stemming reputational and fiduciary risks), the article recommends that the World Bank defer finalizing any reforms until it concludes its assessment of first principles, and has at hand all the data necessary to assess the sanctions …

The Contract Management Body Of Knowledge: Understanding An Essential Tool For The Acquisition Profession, Neal J. Couture, Steven L. Schooner

GW Law Faculty Publications & Other Works

The collective knowledge of any profession is commonly referred to as its body of knowledge. In the acquisition, procurement, or government contracting profession, the collective wisdom of the National Contract Management Association (NCMA) organizes, and periodically updates, a broadly accepted conceptual inventory of the profession’s acquired knowledge. This article describes the NCMA Guide to the Body of Knowledge, how it was developed and is maintained, and its importance and relevance to people concerned with the contract management profession.

Regulatory Design In Context, Robert L. Glicksman, David L. Markell

GW Law Faculty Publications & Other Works

This paper offers what we hope is a constructive contribution to the debate about whether legal scholarship is (in)sufficiently tethered to the real world. To the extent there is a disconnect, we believe neither scholars nor the real world of governance are necessarily at fault. Instead, the disconnect stems from a failure to forge connections between theoretical constructs in the academic literature and their applicability to real world conditions. In part, this article is an effort to make such connections through close attention to context in regulatory design.

In an insightful recent article, Agencies as Litigation Gatekeepers, Professor David Freeman …

Political Law, Spencer A. Overton

GW Law Faculty Publications & Other Works

Traditional “election law” or “the law of democracy” concentrated largely on constitutional analysis by judicial actors. That narrow focus, however, distorted scholars’ understanding of the problems confronting democracy and possible solutions. This Foreword proposes that the field should be understood more properly as “political law,” which includes the study of the activities not only of judges but also of policymakers, regulators, and practitioners. The Foreword also examines the concept of “political law community”—a concentration of scholars, judges, policymakers, regulators, and practitioners interested in the subject that can give rise to innovation and creativity. Finally, the Foreword reviews the George Washington …

Digital Planning: The Future Of Elder Law, Naomi R. Cahn

GW Law Faculty Publications & Other Works

More than half of individuals over the age of 65 use the Internet or e-mail — and they are a fast-growing population on the Internet. Like most people, however, they have probably not considered how to dispose of their digital life if they become incapacitated or when they die, even though they are in the most likely age group to have drafted a will. Indeed, even if they do engage in planning, they cannot be confident that their wishes will be carried out: only a few states have laws covering probate and digital assets, there is no generally accepted method …

The World Is Not Flat: Conference Planning And Presentation As Part Of A Multidimensional Understanding Of Scholarship, Iselin Magdalene Gambert, Karen Thornton, Amy R. Stein

GW Law Faculty Publications & Other Works

Scholarship. For many academics, the word is filled with a combination of excitement, anticipation, obligation, and dread. Academics are expected to reliably produce scholarship, much like sculptors are expected to produce art, baristas cappuccinos, and stockbrokers profits. While “scholarship” has perhaps traditionally been viewed as strictly words on a page, some scholars view it to be a multidimensional enterprise, something that encompasses the many aspects of the life of a scholar. The idea of scholarship as comprising more than just the generation of a tangible written product is taken up in Maksymilian Del Mar’s Living Legal Scholarship, which asserts “five …

With Great Power Comes Great Responsibility: Proposed Principles Of Digital Due Process For Ict Companies, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

Information and Communications Technology (ICT) companies like Google/YouTube, Facebook, Yahoo, and Twitter are in control of an enormous amount of expression on the Internet. More so than any individual country, these companies are responsible for making decisions with regard to a vast amount of Internet expression. They host billions of pages of Internet content, while responding on a daily basis to countless requests from countries and individuals around the world to take down content that is deemed objectionable or illegal. These powerful ICT companies have become the de facto sovereigns of cyberspace, with the power to balance freedom of expression …

Natural Gas Fracking Addresses All Of Our Major Problems, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

Politicians and regulators all over the world are debating the merits and demerits of horizontal drilling and fracturing of shale formations to produce natural gas (fracking) and the many legal issues that are raised by fracking. Professor Pierce provides context for those debates by describing the economic, environmental, and geopolitical advantages of fracking.

The Impact Of Gender On Negotiation Performance, Charles B. Craver

GW Law Faculty Publications & Other Works

Individuals occasionally assume that women cannot negotiate as effectively as men, and when persons in positions of authority have such thoughts, it may induce them to discriminate against women when making employment decisions. In this article we explore the way in which men and women interact with others and the possible impact of behaviorial differences on negotiation performance. I describe how my Legal Negotiation course is taught, and compare the results achieved by men and women on the negotiation exercises assigned in my course. Over the past sixteen years, I have not had a single year in which there has …

The Expulsion Of Aliens And Other Topics: The Sixty-Fourth Session Of The International Law Commission, Sean D. Murphy

GW Law Faculty Publications & Other Works

This essay analyzes the work of the International Law Commission during its sixty-fourth session in Geneva from May 7 to June 1, and from July 2 to August 3, 2012. The session marked the first year of a new quinquennium (2012-2016), with the Commission having completed its work during the prior quinquennium on four major topics: transboundary aquifers; reservations to treaties; responsibility of international organizations; and effects of armed conflict on treaties. The central topic under discussion during the sixty-fourth session concerned the expulsion of aliens, which led to the adoption on first reading of thirty-two articles, together with commentaries, …

Does International Law Obligate States To Open Their National Courts To Persons For The Invocation Of Treaty Norms That Protect Or Benefit Persons?, Sean D. Murphy

GW Law Faculty Publications & Other Works

In its decisions in the LaGrand and Avena cases, the International Court of Justice (I.C.J. or Court) determined that Article 36 of the Vienna Convention on Consular Relations (VCCR) creates "individual rights" (as opposed to just rights of states) and that the United States has an obligation to provide an individual with meaningful access to U.S. courts to vindicate those rights. Based on those determinations, it might be thought that international law generally obligates a state to open its courts for private persons to vindicate rights or benefits that a treaty accords to them, whether or not the treaty expressly …

The 'Federal Law Of Marriage': Deference, Deviation, And Doma, W. Burlette Carter

GW Law Faculty Publications & Other Works

The article discusses the history of federal inroads into marriage by examining federal interventions during the nineteenth and early twentieth century, argues that, in some cases but not all, marriages' federal benefits are indeed intended to support natural procreation, argues that DOMA's underlying statutes are key to ascertaining the purposes of federal marriage benefits and burdens, distinguishes sexual orientation discrimination from race discrimination and offers a proposal for dealing with equal protection challenges to denials of marriage rights to same sex couples. The proposal, which depends upon dual standards of review, recognizes the historical denial of family rights to same …

The Relevance Of Subsequent Agreement And Subsequent Practice For The Interpretation Of Treaties, Sean D. Murphy

GW Law Faculty Publications & Other Works

In May 2012, the International Law Commission (ILC) appointed a special rapporteur, Georg Nolte, to complete a project on “subsequent agreements and subsequent practice in relation to the interpretation of treaties.” Previously referred to by the name “treaties over time,” the project is expected to result by 2016 in a series of “observations” or “conclusions” about how the meaning of a treaty might be determined based, at least in part, on the conduct of the States Parties after the treaty is concluded.

The project raises a large number of interesting issues, some of which concern terminology and line drawing, others …

Book Review Of The Max Planck Encyclopedia Of Public International Law (Rüdiger Wolfrum, Ed., Oxford University Press, 2012), Sean D. Murphy

GW Law Faculty Publications & Other Works

In 2004, the Max Planck Institute launched yet another generation of its widely-used encyclopedia on public international law, this time entitled the Max Planck Encyclopedia of Public International Law (MPEPIL), under the direction of Rüdiger Wolfrum. As befits a new century, the MPEPIL was first unveiled in an online version in 2008, followed in 2012 by a print version in ten volumes plus an index volume. Even a cursory comparison with the previous version reveals that this compendium is a whole new ball game. In terms of content, only 12 of the prior edition’s articles were taken verbatim into the …

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 …

The Past, Present And Future Of The Marital Presumption, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

The marital presumption is deeply rooted in Anglo-American law: a husband and wife are assumed to be the father and mother of any child born during their marriage. With the advent of sophisticated genetic testing, no-fault divorce and changing family structures, however, American states are now questioning the continued validity of the presumption. Paternity can be determined with certainty and much of the stigma associated with the circumstances of a child’s birth has disappeared. In the face of these changes, the presumption has been exposed as a legal fiction without a simple meaning, even as it continues to confer parenthood: …

Can All Women Be Pharmacists?: A Critique Of Hanna Rosin’S The End Of Men, Michael Selmi, Sonia Weil

GW Law Faculty Publications & Other Works

This essay, which appears in a Symposium Edition of the Boston University Law Review, critiques the optimistic view presented by Hannah Rosin in her recent book, The End of Men. In the essay, we critique Rosin’s argument for the rise – and triumph -- of women with a particular focus on educational and employment equality. Relying on current data, we demonstrate that despite women’s educational gains there remains significant segregation among college majors, with women continuing to dominate fields that often lead to low-paying professions (with the notable exception of pharmacists, which we discuss). We also analyze the continuing …

Who's The Father?, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

As this brief online essay observes, the litigation that produced the Supreme Court' 2013 decision in Adoptive Couple v. Baby Girl demonstrates why we are no closer to a definitive resolution of what to do when parents do not share assumptions about how to raise their child. The case illustrates the national lack of agreement on what makes someone a parent. At the core of these differences is the question of how to align parental behavior with the promotion of the child’s interest in stable and secure relationships.

How Legal Pluralism Is And Is Not Distinct From Liberalism: A Response To Dennis Patterson And Alexis Galán, Paul Schiff Berman

GW Law Faculty Publications & Other Works

Alexis Galan and Dennis Patterson largely accept the descriptive account of plural authority described in my book, Global Legal Pluralism: A Jurisprudence of Law Beyond Borders. However, they are concerned that my normative argument for procedural mechanisms, institutional designs, and discursive practices for managing pluralism is simply liberalism in another guise and not pluralist enough. Given that pluralists are usually criticized from the opposite side for an approach that results in too much fragmentation and destabilization, I am in some sense happy to welcome this new critique. After all, a position cannot easily be simultaneously too radical and not …

Originalism And The Ratification Of The Fourteenth Amendment, Thomas Colby

GW Law Faculty Publications & Other Works

Originalists have traditionally based the normative case for originalism primarily on principles of popular sovereignty: the Constitution owes its legitimacy as higher law to the fact that it was ratified by the American people through a supermajoritarian process. As such, it must be interpreted according to the original meaning that it had at the time of ratification. To give it another meaning today is to allow judges to enforce a legal rule that was never actually embraced and enacted by the people. Whatever the merits of this argument in general, it faces particular hurdles when applied to the Fourteenth Amendment. …

Voting Rights Disclosure, Spencer A. Overton

GW Law Faculty Publications & Other Works

In "Beyond the Discrimination Model On Voting," 127 Harvard Law Review 95 (2013), Professor Samuel Issacharoff proposes that Congress turn away from what he considers the outdated and “limited race-driven use” of the Fifteenth Amendment and instead protect all types of voters from partisan manipulation using a “non-civil rights” Elections Clause approach. Specifically, Issacharoff proposes that jurisdictions disclose changes to voting rules for federal elections. This Essay argues that Issacharoff’s approach is incomplete. Contemporary discrimination exists and warrants attention — particularly where fast-growing minority populations threaten the status quo. This discrimination differs from simple partisan manipulation, as the discrimination reduces …

Grades Matter; Legal Writing Grades Matter Most, Jessica L. Clark

GW Law Faculty Publications & Other Works

In this study of 380 students in a law school’s 2011 graduating class, the data demonstrates a strong correlation between high performance in legal writing courses and high performance in non-legal writing courses. There is also a strong correlation at the opposite end: low performers in legal writing courses are low performers in non-legal writing courses. This article provides the hard data to support the significance of writing skills by demonstrating the correlation between performance in legal writing courses and performance in other law school courses by comparing grades and Grade Point Averages (GPAs). Of course grades and GPA data …

Judicial Innovations To Screen Eyewitness Identifications, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

This article explains how, in State v. Lawson, 291 P.3d 673 (Or. 2012), the Oregon Supreme Court reconsidered the role trial judges must play in screening eyewitness identification. The court recognized the shortcomings of eyewitness evidence, including a high number of wrongful convictions stemming from misidentification, but also recognized that eyewitness identification may be the only evidence connecting a guilty defendant to a crime. In weighing eyewitness identification admissibility questions, Oregon Evidence Code rules (similar to their Federal Rule of Evidence counterparts) 401, 602 and 701 all must be considered by the trial judge.