Law Commons^™

Boiling Down Boilerplate In M&A Agreements: A Response To Choi, Gulati, & Scott, Robert Anderson, Jeffrey Manns

GW Law Faculty Publications & Other Works

No abstract provided.

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 and …

Prize And Reward Alternatives To Intellectual Property, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

This chapter surveys the literature on alternatives to intellectual property, focusing especially on alternatives to patent law, but with some attention as well to copyright. It does not consider the question whether intellectual property rights are justified, but assumes that absent some form of governmental innovation, inventions and works of authorship might be underproduced relative to the social optimum. The chapter thus considers how institutions besides traditional property rights compare relative to one another and to traditional intellectual property systems. The chapter considers only briefly the possibility that government itself might produce inventions and works of authorship or that government …

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 …

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 contractors establish strong …

The Admissibility Of Forensic Reports In The Post-Justice Scalia Supreme Court, Laird Kirkpatrick

GW Law Faculty Publications & Other Works

Forensic reports apparently linking a defendant to a crime often constitute the most powerful and persuasive evidence that can be offered at a criminal trial. Yet the Supreme Court is sharply divided about the constitutional requirement for admitting such reports under the Confrontation Clause. In the three cases addressing this question the Court divided 5-4 in its first two decisions and 4-4-1 in its most recent opinion. In a recent dissent to the denial of a Petition for a Writ of Certiorari in Stuart v. Alabama, Justice Gorsuch noted that the Court’s opinions on this question “have sown confusion in …

Epstein’S Insights About Private Law And History For Intellectual Property And Trade Of Today And Tomorrow, F. Scott Kieff

GW Law Faculty Publications & Other Works

Richard Epstein’s work on private law emphasizes themes that have survived since Ancient Roman Law. This paper highlights two practical benefits that those themes can offer some flashpoints in modern debates about the interface between intellectual property (IP) and trade. Arguments grounded in private law may avoid the open-textured public policy debates between concern over too much or too little protection for both IP and trade law while largely addressing the major stated concerns raised by both sides. They also can avoid many arcane doctrines within both IP and trade law. Private law’s attention to business norms helped the Grokster …

U.S. Government To Award Billions Of Dollars In Contracts To Open Electronic Marketplaces To Government Customers—Though Serious Questions Remain, Christopher R. Yukins

GW Law Faculty Publications & Other Works

Proposals to the U.S. General Services Administration are due soon in a $6 billion procurement under which multiple no-cost contracts will be awarded to vendors that will open electronic marketplaces to federal users making micro-purchases (generally up to $10,000). Although federal purchase card holders have long been able to make micro-purchases with few regulatory constraints regarding competition, transparency or socioeconomic requirements, this new initiative appears likely to normalize and expand those purchases—and so may revolutionize small purchases in the federal market. This article assesses some of the key concerns -- from cybersecurity to bid protests to pricing -- that still …

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 from the …

A Wto If You Can Keep It, Steve Charnovitz

GW Law Faculty Publications & Other Works

Recalling how the free trader Benjamin Franklin pondered whether politics in America would be able to keep the republic he had helped to create, this essay looks at whether politics in the world will now be able to keep the World Trade Organization (WTO) in the face of the ongoing attacks by the US government. The essay makes several theoretical contributions: (1) to debunk the Trump Administration's arguments that there is a trade-off between American sovereignty and global governance by showing that this is a false dichotomy; (2) to identify the key design features of specialized international organizations that are …

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 …

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.

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 norms; …

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 the Congressionally-mandated Section …

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 …

Why Is Mississippi The Best State In Which To Be Exonerated? An Empirical Evaluation Of State Statutory And Civil Compensation For The Wrongfully Convicted, Jeffrey Gutman, Lingxiao Sun

GW Law Faculty Publications & Other Works

Wrongful conviction has for decades been a subject of academic study, litigation, and policy reform, but its more recent reach into popular culture is reflected in an array of books, documentaries, podcasts, movies, and TV shows. In both non-fiction and fiction, the theme of wrongful conviction marries a traditionally American revulsion of profound injustice with the captivation of the police procedural, dirty cops, forensic evidence, and the relentless fortitude of incarcerated innocents and their heroic lawyers.

The innocence movement lies at this intersection between law and popular imagination. As the attendance at the 2018 Innocence Network Conference attests, the energy …

The Impact Of Citizen Environmental Science In The United States, George Wyeth, Lee C. Paddock, Alison Parker, Robert L. Glicksman, Jecoliah Williams

GW Law Faculty Publications & Other Works

An increasingly sophisticated public, rapid changes in monitoring technology, the ability to process large volumes of data, and social media are increasing the capacity for members of the public and advocacy groups to gather, interpret, and exchange environmental data. This development has the potential to alter the government-centric approach to environmental governance; however, citizen science has had a mixed record in influencing government decisions and actions. This Article reviews the rapid changes that are going on in the field of citizen science and examines what makes citizen science initiatives impactful, as well as the barriers to greater impact. It reports …

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 …

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

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.

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 in …

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 …

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 …

Introduction: The Promise And Perils Of Innovation In Cross-Border Procurement, Christopher R. Yukins, Gabriella M. Racca

GW Law Faculty Publications & Other Works

No abstract provided.

#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 …

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.

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 …

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’ …

#Metoo, Wrongs Against Women, And Restorative Justice, Laurie S. Kohn

GW Law Faculty Publications & Other Works

This article considers the allegations that have surfaced against high-profile perpetrators as a sample of the range of accusations raised generally through the #MeToo movement and analyzes the current responses available to redress the wrongs identified. The civil and criminal justice systems provide legal responses to sexual assault and harassment; social media and traditional media have also come to play a responsive role in this movement. The article considers the efficacy of both systems in delivering the resolutions we seek and analyzes the pros and cons of media justice and its potential for delivering just and desirable outcomes for victims …

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 federalism and …