Open Access. Powered by Scholars. Published by Universities.®
- Discipline
- Keyword
-
- Attorney-client privilege (3)
- Corruption (3)
- Federal rules of evidence (3)
- Forensic laboratory reports (3)
- Limitations (3)
-
- Privacy (3)
- Rule 502 (3)
- Waivers (3)
- Anti-corruption (2)
- Antitrust (2)
- Bailout (2)
- Comparative law (2)
- Congress (2)
- Constitution (2)
- Debarment (2)
- Discrimination (2)
- Federalism (2)
- Government Contracts (2)
- Human rights (2)
- ICJ (2)
- International court (2)
- Legal education (2)
- Marriage (2)
- Negotiation (2)
- Post-racial (2)
- Suspension (2)
- Systemically important financial institutions (2)
- Too big to fail (2)
- WTO (2)
- World Trade Organization (2)
Articles 1 - 30 of 73
Full-Text Articles in Law
International Judicial Bodies For Resolving Disputes Between States, Sean D. Murphy
International Judicial Bodies For Resolving Disputes Between States, Sean D. Murphy
GW Law Faculty Publications & Other Works
This chapter of the forthcoming Oxford Handbook on International Adjudication assesses those international judicial bodies that are established principally to resolve disputes between States, notably the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS) and the World Trade Organization (WTO) Appellate Body. Unlike courts oriented toward regional economic integration or regional human rights, such as the European Court of Justice or the Inter-American Court of Human Rights, these courts and tribunals primarily focus on resolving disputes between States. Contentious cases before these bodies, for the most part, do not involve institutional organs or …
Who Should Determine Whether An Agency’S Explanation Of A Tax Rule Is Adequate?, Richard J. Pierce Jr
Who Should Determine Whether An Agency’S Explanation Of A Tax Rule Is Adequate?, Richard J. Pierce Jr
GW Law Faculty Publications & Other Works
This essay is Professor Pierce’s contribution to the annual Duke Law Journal symposium on administrative law. The topic of this year’s symposium is “Taking Administrative Law to Tax.” The other participants in the symposium make three main points: (1) IRS and Treasury have long engaged in practices that are inconsistent with the APA, specifically including issuance of legislative rules without complying with the notice and comment procedure described in APA section 553; (2) courts should require IRS and Treasury to comply with the APA; and, (3) several opinions issued by the Supreme Court in recent years suggest that courts are …
Feature Comment: Considering The Effects Of Public Procurement Regulations On Competitive Markets, Christopher R. Yukins, Jose A. Cora
Feature Comment: Considering The Effects Of Public Procurement Regulations On Competitive Markets, Christopher R. Yukins, Jose A. Cora
GW Law Faculty Publications & Other Works
Professor Albert Sanchez Graells of the University of Hull (UK) recently published a vitally important book on procurement law, Public Procurement and the EU Competition Rules (Hart Publishing 2011). In his study, Sanchez Graells asked what seems like a simple question: Shouldn’t regulators, when writing procurement regulations, consider the likely impact of those regulations on competitive markets? Sanchez Graells pointed out that far too little attention has been paid to the anticompetitive impact of public procurement regulation. This article assesses Sanchez Graells’ thesis from a U.S. perspective. In many ways the U.S. federal procurement system stands at one end of …
The Role Of Economics In Tax Scholarship, Neil H. Buchanan
The Role Of Economics In Tax Scholarship, Neil H. Buchanan
GW Law Faculty Publications & Other Works
One of the fundamental tenets of modern tax policy analysis is that we should be concerned with so-called economic efficiency. Along with equity and administrability, efficiency is widely held to be a desirable and important goal. Indeed, to some analysts, efficiency is the most important of those goals, and perhaps the only appropriate goal of tax policy. Even for those who still take seriously non-efficiency concerns, however, efficiency is at least a central element of tax policy analysis, to be weighed against the other two goals (and, perhaps, some others). All tax policy proposals are thus scrutinized to determine whether …
Deferred Prosecutions And Corporate Governance: An Integrated Approach To Investigation And Reform, Lawrence A. Cunningham
Deferred Prosecutions And Corporate Governance: An Integrated Approach To Investigation And Reform, Lawrence A. Cunningham
GW Law Faculty Publications & Other Works
When evaluating how to proceed against a corporate investigative target, law enforcement authorities often ignore the target’s governance arrangements, while subsequently negotiating or imposing governance requirements, especially in deferred prosecution agreements. Ignoring governance structures and processes amid investigation can be hazardous and implementing improvised reforms afterwards may have severe unintended consequences—particularly when prescribing standardized governance devices. Drawing, in part, on new lessons from three prominent cases—Arthur Andersen, AIG and Bristol-Myers Squibb—this Article criticizes prevailing discord and urges prosecutors to contemplate corporate governance at the outset and to articulate rationales for prescribed changes. Integrating the role of corporate governance into prosecutions …
Letting Nature Work In The Pacific Northwest: A Manual For Protecting Ecosystem Services Under Existing Law, Robert L. Glicksman, Robert W. Adler, Daniel J. Rohlf, Robert R.M Verchick, Yee Huang
Letting Nature Work In The Pacific Northwest: A Manual For Protecting Ecosystem Services Under Existing Law, Robert L. Glicksman, Robert W. Adler, Daniel J. Rohlf, Robert R.M Verchick, Yee Huang
GW Law Faculty Publications & Other Works
In the decades since Congress and state legislatures passed most of the nation's most significant environmental laws, our knowledge about ecosystems has increased dramatically. As ecologists learn more about the complex and dynamic interactions that produce valuable ecosystem services, decisionmakers and advocates should adopt an ecosystem services approach to implementing laws that affect the environment. An ecosystem services approach integrates advances in ecology with the law. It fosters creative thinking about how to restructure laws and regulatory programs to mimic the connectedness of ecosystem functions. The approach requires performance-based evaluations to measure success or failure of management decisions, and it …
Introduction, June Carbone, Naomi R. Cahn
Introduction, June Carbone, Naomi R. Cahn
GW Law Faculty Publications & Other Works
This is an introduction to a symposium issue that brings together two different sets of paper. The first set of papers were written in honor of Catharine A. MacKinnon, “Legal Feminism: Looking Back, Looking Forward.;” The second set of papers are drawn from a conference on “The Family-Inequality Debate: A Workshop on Coercion, Class, and Paternal Participation."
Screening Legal Claims Based On Third-Party Litigation Finance Agreements And Other Signals Of Quality, Michael B. Abramowicz, Omer Alper
Screening Legal Claims Based On Third-Party Litigation Finance Agreements And Other Signals Of Quality, Michael B. Abramowicz, Omer Alper
GW Law Faculty Publications & Other Works
The advent of third-party litigation finance introduces a new gatekeeper to the legal process. Before deciding to lend money to a plaintiff, a litigation finance company will conduct at least some review and make an assessment of the quality of the case.
Since litigation finance loans are generally nonrecourse, a litigation finance company is likely to refuse to loan money to plaintiffs with the weakest cases. Such voluntary claim screening may improve social welfare by reducing the incidence of frivolous claims. But the volume of frivolous claims may still be higher than it would be in a world without third-party …
Competition Agencies With Complex Policy Portfolios: Divide Or Conquer?, William E. Kovacic, David A. Hyman
Competition Agencies With Complex Policy Portfolios: Divide Or Conquer?, William E. Kovacic, David A. Hyman
GW Law Faculty Publications & Other Works
Antitrust law has been adopted by 120 jurisdictions worldwide. In more than half of these jurisdictions, the agency charged with enforcing antitrust law also has other responsibilities. The assignment of multiple regulatory tasks can affect the performance of a competition agency in complex and subtle ways. We present a framework for analyzing the consequences of creating public bodies with complex policy portfolios. Using examples from across the administrative state, we analyze the forces that shape the content of an agency’s policy duties, and how the portfolio of assigned duties affects the way an agency approaches its assigned tasks, and its …
The Jus Ad Bellum And The 1998 Initiation Of The Eritrean-Ethopian War, Sean D. Murphy, Won Kidane, Thomas R. Snider
The Jus Ad Bellum And The 1998 Initiation Of The Eritrean-Ethopian War, Sean D. Murphy, Won Kidane, Thomas R. Snider
GW Law Faculty Publications & Other Works
From May 1998 to December 2000, Eritrea and Ethiopia engaged in an armed conflict that cost the lives of thousands of individuals, injured thousands more, and displaced tens of thousands of men, women, and children from their homes. In December 2000, the two sides concluded a comprehensive agreement that ended the war. Among other things, the agreement established the Eritrea-Ethiopia Claims Commission. Consisting of five arbitrators, the Commission’s mandate was to “decide through binding arbitration all claims for loss, damage or injury by one Government against the other” that were “related to the conflict” and that “resulted from violations of …
Justice Kennedy’S Use Of Sources Of The Original Meaning Of The Constitution, Gregory E. Maggs
Justice Kennedy’S Use Of Sources Of The Original Meaning Of The Constitution, Gregory E. Maggs
GW Law Faculty Publications & Other Works
The essay concerns one aspect of Justice Kennedy’s jurisprudence, namely, his use of some of the principal sources of the original meaning of the Constitution in his written opinions. By the term “sources of the original meaning of the Constitution,” I refer to the records from the Federal Constitutional Convention of 1787, the records of the state ratifying conventions, the Federalist Papers, dictionaries showing usage of language during the Founding period, and the acts of the First Congress. The goals of this essay are first to identify, quote, and describe passages in which Justice Kennedy has cited these sources, and …
The Gender/Class Divide: Reproduction, Privilege And The Workplace, Naomi R. Cahn, June Carbone
The Gender/Class Divide: Reproduction, Privilege And The Workplace, Naomi R. Cahn, June Carbone
GW Law Faculty Publications & Other Works
This article evaluates the relationship between workplace equality and the technology of egg freezing, which allows women to “bank” their eggs until they are ready to use them. As the workplace increasingly rewards education and career investment, middle class women postpone family formation until they have attained a measure of financial security and the maturity to balance dual earner arrangements. Yet, as they age, their reproductive potential diminishes dramatically. By contrast, women who do not complete college (and aren’t even thinking about graduate school) bear children at different times in their life cycles, with less leverage with employers, and different …
Making Race Salient: Trayvon Martin And Implicit Bias In A Not Yet Post-Racial Society, Cynthia Lee
Making Race Salient: Trayvon Martin And Implicit Bias In A Not Yet Post-Racial Society, Cynthia Lee
GW Law Faculty Publications & Other Works
This Article uses the Trayvon Martin shooting to examine the operation of implicit racial bias in cases involving self-defense claims. Judges and juries are often unaware that implicit racial bias can influence their perceptions of threat, danger, and suspicion in cases involving minority defendants and victims. Failure to recognize the effects of implicit racial bias is especially problematic in cases involving black male victims and claims of self-defense because such bias can make the defendant’s fear of the victim and his decision to use deadly force seem reasonable. The effects of implicit racial bias are particularly likely to operate under …
National Treatment In Copyright And Related Rights: How Much Work Does It Do?, Robert Brauneis
National Treatment In Copyright And Related Rights: How Much Work Does It Do?, Robert Brauneis
GW Law Faculty Publications & Other Works
The obligation of national treatment makes an appearance in all five of the major active multilateral treaties concerning copyright and related rights, including the Berne Convention, the Rome Convention, the TRIPS Agreement, the WIPO Copyright Treaty (“WCT”), and the WIPO Performances and Phonograms Treaty (“WPPT”), a group I will collectively call the “five CRR treaties.” It is principally lauded for its substantive bite, as a rule requiring that treaty parties extend protection to non-nationals on the same terms as they do to their own nationals. Yet there are reasons to question whether the national treatment obligations imposed by the five …
Jus Ad Bellum, Values, And The Contemporary Structure Of International Law, Sean D. Murphy
Jus Ad Bellum, Values, And The Contemporary Structure Of International Law, Sean D. Murphy
GW Law Faculty Publications & Other Works
In “Religion, Violence, and Human Rights: Protection of Human Rights as Justification for the Use of Armed Force,” 41 Journal of Religious Ethics 1 (2013), James Johnson discusses an important dilemma for contemporary society: when should transnational military force be permitted to protect human rights? Professor Johnson uses the relatively recent doctrine of a “responsibility to protect” as the centerpiece of his paper, characterizing it as a reaction to legal concepts that emerged in the “Westphalian system.” Yet the doctrine, at least as it relates to the use of military force, is not a reaction to that system but, rather, …
Privacy Self-Management And The Consent Dilemma, Daniel J. Solove
Privacy Self-Management And The Consent Dilemma, Daniel J. Solove
GW Law Faculty Publications & Other Works
The current regulatory approach for protecting privacy involves what I refer to as “privacy self-management” — the law provides people with a set of rights to enable them to decide how to weigh the costs and benefits of the collection, use, or disclosure of their information. People’s consent legitimizes nearly any form of collection, use, and disclosure of personal data.
Although privacy self-management is certainly a necessary component of any regulatory regime, I contend in this Article that it is being asked to do work beyond its capabilities. Privacy self-management does not provide meaningful control. Empirical and social science research …
Hipaa Turns 10: Analyzing The Past, Present, And Future Impact, Daniel J. Solove
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.
Reconciling Personal Information In The United States And European Union, Daniel J. Solove, Paul M. Schwartz
Reconciling Personal Information In The United States And European Union, Daniel J. Solove, Paul M. Schwartz
GW Law Faculty Publications & Other Works
US and EU privacy law diverge greatly. At the foundational level, they diverge in their underlying philosophy: In the US, privacy law focuses on redressing consumer harm and balancing privacy with efficient commercial transactions. In the EU, privacy is hailed as a fundamental right that trumps other interests. Even at the threshold level - determining what information is covered by the regulation - the US and EU differ significantly. The existence of personal information - commonly referred to as “personally identifiable information” (PII) - is the trigger for when privacy laws apply. PII is defined quite differently in US and …
The Financing Of Small Businesses: A Functional Analysis Of Three Legal Models, John Andrew Spanogle Jr.
The Financing Of Small Businesses: A Functional Analysis Of Three Legal Models, John Andrew Spanogle Jr.
GW Law Faculty Publications & Other Works
This paper discusses the three legal regimes which furnish models of laws designed to promote the use of moveables and intangibles to finance small businesses. One is the nantissement de fonds de commerce, a device used in the French law which creates a mortgage on a business - or at least some parts of it. The second is the registered charge of the European Bank's Model Law on Secured Transactions, which is modeled in large part on the English financing device called a floating charge. The third is the North American security interest used in Article 9 of the Uniform …
Mapping The Law Of Wto Accession, Steve Charnovitz
Mapping The Law Of Wto Accession, Steve Charnovitz
GW Law Faculty Publications & Other Works
The member countries of the World Trade Organization (WTO) joined either as original members or through the Article XII accession process. To date, over 20 members have joined through accession including most notably China in 2001. Recently, Vietnam completed its accession negotiations and Russia made do so sometime in 2007. Governments joining the WTO through accession have to abide by WTO rules, as all members do, but applicant governments are also often asked to accept individualized rules tailored for them through negotiations. These special rules have not received extensive examination in previous scholarship. The purpose of this article is to …
The Aig Story (Chapter 18, Nationalization), Lawrence A. Cunningham, Maurice R. Greenberg
The Aig Story (Chapter 18, Nationalization), Lawrence A. Cunningham, Maurice R. Greenberg
GW Law Faculty Publications & Other Works
This is the final chapter of The AIG Story, a book about the growth of a large international insurance company that pioneered the opening of new markets and helped forge milestone international trade agreements, followed by an account of its near-destruction, first at the hands of an overzealous state attorney general and underwhelming board of directors, and then, as detailed in this chapter, at the hands of federal government officials overwhelmed by a financial crisis they could not understand. This chapter begins in mid-2008, when AIG’s losing financial products bets presented the company with a huge liquidity problem, though it …
The Use Of Alternative Dispute Resolution Techniques To Resolve Public Sector Bargaining Disputes, Charles B. Craver
The Use Of Alternative Dispute Resolution Techniques To Resolve Public Sector Bargaining Disputes, Charles B. Craver
GW Law Faculty Publications & Other Works
Labor organizations and employers have used various dispute resolution techniques to assist them with contract negotiations and contractual grievances. They have used negotiation, mediation, and arbitration since the 1800s. When the ADR movement was developed for conventional legal disputes, many of the techniques adopted were derived from the industrial relations movement. As states enacted public sector bargaining laws granting representational rights to state and local government employees, the parties had to determine how to resolve controversies over the terms to be included in new contracts and over grievances arising under existing accords. Most states refused to allow government personnel to …
The Impact Of Gender On Negotiation Performance, Charles B. Craver
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 …
Book Review: Legal Pluralism And Empires, Paul Schiff Berman
Book Review: Legal Pluralism And Empires, Paul Schiff Berman
GW Law Faculty Publications & Other Works
These are boom times for scholarship on legal pluralism. With the collapse of the bipolar Cold War order and the increasing recognition of transnational and international institutions and networks that operate distinct from nation-states, observers have used legal pluralism as a useful framework for conceptualizing a world of multiple overlapping assertions of authority. This framework challenges traditional international relations and international law scholarship that has long tended to focus almost exclusively on nation-states, their jurisdictional boundaries, and their interests, goals, and strategies. Legal pluralists insist that an assertion of jurisdiction is only one gambit in an ongoing interplay of social …
Emerging Policy And Practice Issues (2012), Steven L. Schooner, David J. Berteau
Emerging Policy And Practice Issues (2012), Steven L. Schooner, David J. Berteau
GW Law Faculty Publications & Other Works
This paper, presented at the West Government Contracts Year in Review Conference (covering 2012), attempts to identify the key trends and issues for 2013 in U.S. federal procurement. Budgetary and financial insecurity emerge as the most significant emerging issues in government contracting. Consistent with prior practice, this chapter offers extensive coverage of the federal procurement spending trend and attempts to predict what lies ahead. Among other things, it discusses the pending sequestration, procurement spending rates, agency purchasing data (particularly at the Defense Department, Department of Homeland Security, and the Department of State and the Agency for International Development), grants spending, …
Anti-Corruption Internationally: Challenges In Procurement Markets Abroad—Part Ii:The Path Forward For Using Procurement Law To Help With Development And The Fight Against Corruption, Daniel I. Gordon
GW Law Faculty Publications & Other Works
This paper, presented at the West Government Contracts Year in Review Conference (covering 2012), discusses developing issues in international public procurement. Among other things, the paper suggests that there is growing recognition of the role that procurement can play in national development and the fight against corruption. In the paper the author points out that, while there is a worldwide trend toward more and more similar procurement systems, that trend does not mean that procurement systems are becoming, or should become, uniform. Moreover, the author contends in the paper that procurement law has only a limited role in national development …
Bid Protests: The Costs Are Real, But The Benefits Outweigh Them, Daniel I. Gordon
Bid Protests: The Costs Are Real, But The Benefits Outweigh Them, Daniel I. Gordon
GW Law Faculty Publications & Other Works
The author analyzes the costs and benefits of bid protests, with a focus on protests filed at the Government Accountability Office (GAO). The author explains that the costs are often overstated, in that GAO’s reporting methodology leads observers to overstate the number of protests and the frequency of successful protests. The author also reports on research regarding what happens after GAO sustains protests, and indicates that firms that successfully protest to GAO generally do not obtain the contract that was the subject of the protest. The article also explains that the “automatic stay” of procurements triggered by a protest to …
The Long, Lingering Shadow: Slavery, Race, And Law In The American Hemisphere (Introduction), Robert J. Cottrol
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 …
Cross-Debarment: A Stakeholder Analysis, Christopher R. Yukins
Cross-Debarment: A Stakeholder Analysis, Christopher R. Yukins
GW Law Faculty Publications & Other Works
As more nations and organizations establish debarment (or "blacklisting") systems, to exclude corrupt or incompetent firms and individuals from contracting, a serious question has arisen: if a contractor is debarred, should other jurisdictions automatically exclude that contractor in a "cross-debarment"? This paper, which grew out of an October 2012 symposium at the World Bank, discusses the advantages and disadvantages of cross-debarment, from the standpoint of various stakeholders. The article concludes that some stakeholders (such as debarring officials themselves) might prefer that there be no automatic cross-debarment, so that government officials retain discretion -- and so leverage -- to persuade contractors …
The Rise Of Directed Verdict: Jury Power In Civil Cases Before The Federal Rules Of 1938, Renée Lettow Lerner
The Rise Of Directed Verdict: Jury Power In Civil Cases Before The Federal Rules Of 1938, Renée Lettow Lerner
GW Law Faculty Publications & Other Works
Jury practice in the state and federal courts evolved dramatically in the nineteenth and early twentieth century. Around the time of the ratification of the Bill of Rights in 1791, important legal thinkers praised the civil jury as a bulwark against judicial tyranny. By the advent of the Federal Rules of Civil Procedure in 1938, many commentators regarded the civil jury as an antiquated nuisance. Diminishment of the jury and open exercise of judicial power, encouraged in the Federal Rules by procedures such as summary judgment, would not have been possible without earlier changes in jury practice. Two major changes …