Law Commons^™

The Troublesome Inheritance Of Americans In Magna Carta And Trial By Jury, Renée Lettow Lerner

GW Law Faculty Publications & Other Works

Many Americans insisted on their traditional rights as Englishmen in the conflict with Britain before and after declaring independence. Magna Carta—particularly the provisions concerning the “law of the land” and “judgment of his peers”—embodied fundamental rights of Englishmen that American revolutionaries were willing to fight to protect. As Edward Coke had found more than a century before, American revolutionaries understood that invoking such an ancient document inspired resistance to authority.

Americans cherished Magna Carta most because of its association with jury trial. Juries had proved useful to Americans in their conflict with Britain. Colonial American juries had nullified the law …

Health Care Competition Law In The Shadow Of State Action: Minimizing Macs, David A. Hyman, William E. Kovacic

GW Law Faculty Publications & Other Works

How should we go about reconciling competition and consumer protection in health care, given the long shadow cast by the state action doctrine? We consider that issue, using a case study drawn from an obscure corner of the pharmaceutical reimbursement market to motivate and inform our analysis. We show how the balance between competition and consumer protection has been distorted by the political economy of health care regulation – compounded by the extension of the state action doctrine far past its defensible borders. If anything, considerations of political economy argue for much greater skepticism about the utility of regulation – …

In Defense Of The Equal Sovereignty Principle, Thomas Colby

GW Law Faculty Publications & Other Works

The Supreme Court of the United States based its landmark decision in Shelby County v. Holder on the proposition that the Constitution contains “a fundamental principle of equal sovereignty among the States.” For the central holding of a blockbuster constitutional case, that assertion was surprisingly unsupported. The Court simply declared it to be true, and made little effort to substantiate it. Naked as it was, the Court’s conclusion prompted savage criticism not only from the left, but also from the right. The consensus critical reaction was epitomized by Judge Richard Posner’s remark that “the court’s invocation of ‘equal sovereignty’ is …

Emerging Policy And Practice Issues (2016), Steven L. Schooner, Neal J. Couture

GW Law Faculty Publications & Other Works

This paper, presented at the West Government Contracts Year in Review Conference (covering 2015), attempts to identify the key trends and issues in U.S. federal procurement. 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 the macro-level data, initiatives from OFPP and DoD, including the Better Buying Power 3.0's less-than-obvious focus on innovation, the need for investment in research and development, information technology and category management, acquisition performance measurement (or …

The Inevitable Legal Pluralism Within Universal Harmonization Regimes: The Case Of The Cisg, Paul Schiff Berman

GW Law Faculty Publications & Other Works

Faced with a world of multiple overlapping normative communities and jurisdictions, law often seeks universal rules and harmonization regimes. Such rules and regimes offer to tame pluralism through the imposition of common codes of conduct. The 1980 Convention on Contracts for the International Sale of Goods (CISG) is a useful example of this phenomenon. Arising from harmonization efforts dating back at least to the 1920s, the CISG purports to solve the problem of jurisdictional overlap and inconsistency in the application of domestic law to cross-border commercial transactions. To its back-ers, the CISG addresses intractable problems of legal uncertainty and forum …

Placing The Government In Fragile Democracies, David Fontana

GW Law Faculty Publications & Other Works

No abstract provided.

The Ultimate Unifying Approach To Complying With All Laws And Regulations, Daniel J. Solove, Woodrow Hartzog

GW Law Faculty Publications & Other Works

There are countless laws and regulations that must be complied with, and the task of figuring out what to do to satisfy all of them seems nearly impossible. In this article, Professors Daniel Solove and Woodrow Hartzog develop a unified approach to doing so. This approach (patent pending) was developed over the course of several decades of extensive analysis of every relevant law and regulation.

How The Creation Of Appellate Courts In England And The United States Limited Judicial Comment On Evidence To The Jury, Renée Lettow Lerner

GW Law Faculty Publications & Other Works

The practice of judicial comment on the evidence has traditionally been the main form of jury control. Previous scholarly work has focused on the loss of the power in state courts, and has attributed the decline of judicial comment to a strict separation of functions between judge and jury and to regional differences in legal culture. This article examines two jurisdictions in which the power of comment long remained strong, at least in theory: the High Court of England, with its predecessors, and the federal courts in the United States. In both jurisdictions, judicial power to comment has been limited …

Berkshire's Blemishes: Lessons For Buffett's Successors, Peers, And Policy, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

Berkshire Hathaway’s unique managerial model is lauded for its great value; this article highlights its costs. Most costs stem from the same features that yield such great value, which boil down, ironically, to Berkshire trying to be something it isn’t: it is a massive industrial conglomerate run as an old-fashioned investment partnership. An advisory board gives unchecked power to a single manager (Warren Buffett); Buffett makes huge capital allocations and pivotal executive hiring-and-firing decisions with modest investigation and scant oversight; Berkshire’s autonomous and decentralized structure grants operating managers enormous discretion with limited second-guessing; its trust-based culture relies on a cultivated …

Race, Policing, And Lethal Force: Remedying Shooter Bias With Martial Arts Training, Cynthia Lee

GW Law Faculty Publications & Other Works

This paper seeks to join the national conversation on race and policing. This conversation about race and policing should be of concern to everyone because problematic shootings by police cost taxpayers millions of dollars in settlements arising from civil lawsuits. These monies could instead be going towards improving social services, schools, and jobs. The need for reform of policing practices also transcends race. Almost half of all individuals shot and killed by police each year are White.

The paper starts by examining the social science research on race and the decision to shoot. By and large, this research demonstrates that …

Regulatory Leveraging: Problem Or Solution?, William E. Kovacic, David A. Hyman

GW Law Faculty Publications & Other Works

Worldwide, there are approximately 130 jurisdictions with competition laws. The governmental entities charged with enforcing these laws are typically called “competition agencies,” but many of these entities do things other than competition law. Of the 36 agencies listed in the Global Competition Review’s 2015 annual review, half have responsibilities beyond their competition portfolio. Assume a competition agency that has significant regulatory power, such as the right to review certain mergers before they are consummated. Pursuant to this authority, the agency determines how quickly mergers are cleared, or whether they can proceed at all. This regulatory power is the functional equivalent …

Too Big And Unable To Fail, Arthur E. Wilmarth Jr., Stephen Lubben

GW Law Faculty Publications & Other Works

Financial regulation after the Dodd-Frank Act has produced a blizzard of acronyms, many of which revolve around the “too big to fail” (TBTF) problem. OLA, OLF, SPOE, and TLAC are new regulatory tools that seek to build a new regime for resolving failures of systemically important financial institutions (SIFIs). The explicit goal of this new regime is to enable a SIFI to fail, just like United Airlines or Blockbuster Video, without requiring a government bailout. In this article, we express significant doubts about the new regime’s ability to work as advertised. The “single point of entry” (SPOE) resolution strategy, which …

Gender And The Sharing Economy, Naomi Schoenbaum

GW Law Faculty Publications & Other Works

While the sharing economy has been celebrated as a flexible alternative to traditional employment for those with family responsibilities, especially women, it presents challenges for gender equality. Many of the services that are “shared” take place in the context of intimacy, which can have substantial consequences for transacting, particularly by enhancing the importance of identity of both the worker and the customer. Expanding on previous research on intimate work — a critical area that exists largely in limbo between the law of the market and the law of the family — this Article, written for the Cooper-Walsh Colloquium, explores the …

Causal Responsibility And Patent Infringement, Dmitry Karshtedt

GW Law Faculty Publications & Other Works

It is not uncommon for multiple parties in the stream of commerce — manufacturers, distributors, end users — to be involved in the infringement of a single patent. Yet courts continue to struggle with such scenarios. Attempts to deal with them — particularly when plaintiffs asserted so-called method patents, which cover specific “steps,” or actions — have produced results that defy commonsense notions of legal responsibility. In method patent cases, the patentee must clear much higher legal hurdles to prevail against a manufacturer who designed and supplied an infringing device than against an end user who simply bought that device …

Having Your Cake And Eating It Too? Zero-Rating, Net Neutrality And International Law, Arturo J. Carrillo

GW Law Faculty Publications & Other Works

This Article analyzes the international law response to the zero-rating conundrum. National debates rage across the globe on whether to permit zero-rating, which violates net neutrality, as a means of increasing connectivity, especially in the developing world. As a rule, these highly contentious discussions lack rigor, objectivity, and impact. They are characterized by a clash of dogmas: the sanctity of net neutrality principles, on the one hand, versus the imperative to close the digital divide, on the other. This Article seeks to bridge that dichotomy by invoking the applicable international law framework to analyze zero-rating as a limitation on net …

Money Can’T Buy You Love: Valuing Contributions By Nonresidential Fathers, Laurie S. Kohn

GW Law Faculty Publications & Other Works

This article examines the roots of the disproportionate values the legal system assigns to paternal roles in the family law and child support system, looking to social norms, traditional family law, and the state's interests in the well-being of children. This hierarchy of values reveals itself in the current structure of child support laws and in the enforcement of parenting-time orders on the one hand and child support obligations on the other. The article considers how the allocation of disproportionate values impacts low-income fathers, mothers, children, and the state. The article envisions ways in which the family law system could …

Legal Adaptive Capacity: How Program Goals And Processes Shape Federal Land Adaptation To Climate Change, Robert L. Glicksman, Alejandro E. Camacho

GW Law Faculty Publications & Other Works

The degree to which statutory goals are pliable is likely to affect significantly the ability of an agency with regulatory or management responsibilities to achieve those objectives in the face of novel challenges or changing circumstances. This Article explores this dynamic by comparing the degree of “give” provided by the goals of the regimes governing management of the five types of federal public lands in responding to the challenges posed by climate change. It asserts that the extent of climate change adaptation in which an agency engages is influenced by a program’s legal adaptive capacity — the mutability of the …

Theories Of Civil Society And Global Administrative Law: The Case Of The World Bank And International Development, Francesca Bignami

GW Law Faculty Publications & Other Works

For over two decades, the concept of civil society has informed institutional design in the international realm. Empowering civil society has served as a key rhetorical and policy response to the criticism that the social and economic processes of globalization and the international organizations that have emerged to govern the global realm are illegitimate, elite driven, and anti-democratic. This chapter, which appears in the Elgar Research Handbook on Global Administrative Law, unpacks the concept of civil society with the aim of understanding the institutional reforms that have been undertaken in one important area of global governance—the international development law of …

Reinvigorating Innovation: Lessons Learned From The Wright Brothers, Steven L. Schooner, Nathaniel E. Castellano

GW Law Faculty Publications & Other Works

The Department of Defense (DOD) increasingly recognizes that it must do more to spur innovation to maintain its technological superiority. This article suggests that DOD’s leadership make time for David McCullough’s recent biography, The Wright Brothers, as an aviation anecdote chock full of fundamental lessons that DOD must embrace to succeed.

Among other things, this article encourages DoD to consider - in light of the Wright Brothers' experiences and successes - experimenting with prizes and contests; looking outside the inner circle (including conventional contractors and sources of R&D) for new ideas; appreciating that bigger isn’t always better; recognizing that prototyping …

International Procurement Developments In 2015: Structural Reforms To International Procurement Laws, Christopher R. Yukins

GW Law Faculty Publications & Other Works

The year 2015 saw major structural changes to international procurement rules -- including (1) a proposed Trans-Pacific Partnership (TPP) trade agreement which will impact procurement, and important shifts in Canada’s laws regarding contractor debarment and exclusion (discussed here by Brenda Swick), (2) European procurement laws which favor open, multilateral negotiations (Hans-Joachim Priess), and (2) new, more liberal procurement policies at the World Bank (Christopher Yukins) -- all of which are likely to help open procurement markets around the world. This article, prepared for presentation at the February 2016 Thomson-Reuters Year in Review conference in Washington, D.C., surveys these developments and …

Second Report On Crimes Against Humanity, Sean D. Murphy

GW Law Faculty Publications & Other Works

In July 2014, the U.N. International Law Commission placed the topic “Crimes against humanity” on its current program of work and appointed a Special Rapporteur. According to the topic proposal, the objective of the Commission is to draft articles for what could become a Convention on the Prevention and Punishment of Crimes against Humanity.

In July 2015, based on the Special Rapporteur’s First Report, the Commission provisionally adopted the first four draft articles with commentary. In this Second Report, which will be debated by the Commission during the summer of 2016, the Special Rapporteur proposes an additional six draft articles, …

Taming The Wild West: Online Excesses, Reactions And Overreactions, Catherine J. Ross

GW Law Faculty Publications & Other Works

A review essay discussing Danielle Keats Citron’s Hate Crimes in Cyberspace (Harvard University Press 2014) and Amy Adele Hasinoff’s, Sexting Panic: Rethinking Criminalization, Privacy and Consent (University of Illinois Press 2015). Both books consider the risks and harms in cyberspace, blaming of victims, and the interaction between law and online expression. Citron documents widespread hate speech, cyberstalking, revenge porn, and other speech that especially targets women online. Hasinoff, grounded in feminist and cultural studies, emphasizes the positive aspects of the agency girls who sext voluntarily display in exploring and displaying their sexuality, arguing that advising girls that control of their …

Explaining Variations In Bailout Policies: A Review Of Cornelia Woll's The Power Of Inaction, Arthur E. Wilmarth Jr., Kelsey M. Barnes

GW Law Faculty Publications & Other Works

In The Power of Inaction: Bank Bailouts in Comparison (Cornell Univ. Press, 2014), Professor Cornelia Woll asks a question of fundamental importance: "What was the nature of power [that] finance wielded over the fate of the economy and the crisis management in 2008, which affected the lives of so many?" To measure the effective power that the financial industry wielded during the crisis, Woll compares the terms of bailout programs that governments adopted in six countries. She contends that financial institutions were more likely to receive larger amounts of public support, and to make minimal contributions to rescue plans, in …

On The Evolution Of Property Ownership Among Former Slaves, Newly Freedmen, Eleanor Marie Brown

GW Law Faculty Publications & Other Works

One might think of the slave property system of provision grounds (or “provisioning”) in the West Indies as a happy coalition of interests between planters (who wanted to provide slaves incentives to feed themselves), Westminster (who wanted well-fed slaves to ensure the productivity of the sugar sector, a hefty tax contributor to the Exchequer), and slaves (who saw the advantages of a system which ensured that they were fed and encouraged private enterprise). Yet while this was generally true, notably, not all members of the plantocracy viewed these developments as positive. An outspoken minority feared that the roots of the …

Keynote Address | Sexual Offenses: Lessons From The Front Lines, Lisa M. Schenck

GW Law Faculty Publications & Other Works

This is an edited transcript of a keynote address as delivered on November 6, 2015 at Southwestern Law School, Los Angeles, CA.

The Eritrean-Ethiopian War (1998-2000), Sean D. Murphy

GW Law Faculty Publications & Other Works

The Eritrean-Ethiopian War of 1998-2000 was a tragic conflict that resulted in a widespread loss of life, as well as other injury and damage, for these two developing countries in the Horn of Africa. A unique feature of this incident is that the December 2000 Algiers agreement ending the conflict provided for the establishment of an Eritrea-Ethiopia Claims Commission (claims commission), charged with deciding claims for loss, damage or injury resulting from a violation of international law committed by either country. One of Ethiopia’s claims was that Eritrea initiated the armed conflict by an illegal use of force. Thus, the …

Photocopies, Patents, And Knowledge Transfer: 'The Uneasy Case' Of Justice Breyer's Patentable Subject Matter Jurisprudence, Dmitry Karshtedt

GW Law Faculty Publications & Other Works

One aspect of Justice Stephen Breyer’s discomfort with patents, as expressed in his opinion for the Supreme Court in Mayo v. Prometheus and his dissent from the order dismissing certiorari in LabCorp v. Metabolite, is strikingly similar to one of his critiques of copyright law in The Uneasy Case for Copyright, a well-known article he wrote as Professor Breyer more than forty-five years ago. In The Uneasy Case, Breyer argued that the burdens on duplication of technical articles imposed by copyright law restrict the flow of information and prevent scientists from enjoying spillover benefits of published research. His patent opinions …

Using The Student-Edited Law Review To Teach Critical Professional Skills, Karen Thornton

GW Law Faculty Publications & Other Works

At a time when law schools are being urged to add experiential learning opportunities to their curricula, law reviews may have been overlooked because the need is so obvious. Producing a journal is a professional endeavor requiring leadership by student editors who are in the process of forging their professional identity. Law schools have a responsibility to teach critical professional skills as part of the pedagogy to shape future lawyers. This article summarizes the need for law schools to provide experiential learning opportunities, unpacks the criticism faculty authors have heaped on student-led law reviews, and the describes a symposium-style training …

Teaching Lawyering With Heart In The George Washington University Law School Domestic Violence Project, Joan S. Meier

GW Law Faculty Publications & Other Works

The Domestic Violence Project (DVP) began as an experiment and has become my favorite model for teaching law students about domestic violence work. The heart of the course is its emphasis on developing awareness of and compassion for the personally and emotionally challenging dimensions of this work. I achieve this (i) through a dialogue between students’ journals and my written responses, (ii) by inviting students to produce a creative project, and (iii) by teaching reflexively about vicarious trauma. Many students experience this course as an oasis of holistic professional and personal growth within the often dispiriting experience of law school.

Unequal Terms: Gender, Power, And The Recreation Of Hierarchy, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

This paper explores the relationship between feminist theory and rising economic inequality. It shows how greater inequality reflects the valorization of the stereotypically male qualities of competition and hierarchy, producing a greater concentration of wealth among a small number of men at the top, shortchanging men more than women through the rest of the economy, and altering the way that men and women match up to each other in the creation of families. By creating a framework for further research on the relationship between the norms of the top and the disadvantages of everyone else in more unequal societies, the …