Law Commons^™

Unitary Judicial Review, Bradford R. Clark

GW Law Faculty Publications & Other Works

Two hundred years have passed since the Supreme Court's decision in Marbury v. Madison, yet debate continues over the origins and legitimacy of judicial review. Although modern commentators generally accept judicial review with little or no reservation, some remain skeptical. One of the strongest and most sustained challenges comes from Larry Kramer, who has recently argued that the Founders did not authorize judicial review of the scope of federal powers under the original Constitution. At the same time, Kramer maintains that the Founders expected judicial review both to prevent states from undermining federal supremacy and to enforce individual rights. Such …

Beyond Retribution And Impunity: Responding To War Crimes Of Sexual Violence, Naomi R. Cahn

GW Law Faculty Publications & Other Works

Beyond Retribution and Impunity: Responding to War Crimes of Sexual Violence articulates principles for an approach to gender-based violence during conflict and post-conflict that operates within three different meanings of justice: criminal/civil justice, restorative justice, and what I define as social services justice. The article argues that responses to sexual violence must integrate legal and nonlegal, national, international, and local approaches, and must respond to both short and longer-term needs. It focuses on victims of sexual violence in the Democratic Republic of the Congo during what has been called the First World War in Africa, which occurred from 1996-2003.

Joseph …

Foundations Of International Environmental Law, Dinah L. Shelton

GW Law Faculty Publications & Other Works

The introductory chapter of this book reviews the religious, ethical, and philosophical underpinnings of environmental law. Judeo-Christian religions, Islam, and Buddhism all contain guidance about how to interact with the environment. Although early treaties reflect a belief that humans had the right to use nature to their benefit without any restrictions, later policies aim “to reconcile competing social and economic policies in order to obtain equitable sharing of resources.” The chapter discusses features of the economic system that present challenges to preserving the environment, including tragedy of the commons and competitive disadvantage. Finally, the article describes international law sources of …

Choosing Gatekeepers: The Financial Statement Insurance Alternative To Auditor Liability, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

Positioned in a lively current debate concerning how to design auditor incentives to optimize financial statement auditing, this Article presents the more ambitious financial statement insurance alternative. This breaks from the existing securities regulation framework to draw directly on insurance markets and law. Based on upon an evaluation of major structural and policy-related features of the concept, the assessment prescribes a framework to permit companies, on an experimental-basis and with investor approval, to use financial statement insurance as an optional alternative to the existing model of financial statement auditing backed by auditor liability.

The financial statement insurance concept, pioneered by …

A New Product For The State Corporation Law Market: Audit Committee Certifications, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

Audit committees of corporate boards of directors are central to corporate governance for many corporations. Their effectiveness in supervising financial managers and overseeing the financial reporting process is important to promote reliable financial statements. This centrality suggests that it is likewise important for investors and others to have a basis for justifiable confidence in audit committee effectiveness. At present, there is no such mechanism. This Article explains why, considers a way states can provide it and assesses as low the likelihood that states will do so. In the swirling corporate governance reforms led by SOX, the SEC, SROs and PCAOB, …

A Model Financial Statement Insurance Act, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

Building on companion work investigating the efficacy of financial statement insurance (FSI) as an alternative to traditional auditor liability (ssrn.com/abstract=554863), this Article presents the terms of a national enabling statute to implement this concept. The Model Financial Statement Insurance Act uses the architecture of the U.S. Trust Indenture Act of 1939. It authorizes issuer application for qualification, in connection with annual proxy statement filings, of policies of financial statement insurance. The Model FSI Act deems a series of provisions necessary to achieve securities law objectives to be part of all financial statement insurance policies so proposed, and requires insurers to …

Sources Of Federalism: An Empirical Analysis Of The Court's Quest For Original Meaning, Peter J. Smith

GW Law Faculty Publications & Other Works

Although a debate continues to rage in the academy and on the Court about the propriety of originalism as a methodology of constitutional interpretation, in federalism cases both the majority and the dissent on the current Court appear to have embraced the approach. Yet their agreement ends there; the Court has consistently divided 5-4 in federalism cases. What explains the disagreement among Justices who appear to agree that the original understanding of the Constitution is also its current meaning? This article presents the results of a study of citation patterns in federalism cases since 1970. The study demonstrates that the …

The Centrality Of Military Procurement: Explaining The Exceptionalist Character Of United States Federal Public Procurement Law, Joshua I. Schwartz

GW Law Faculty Publications & Other Works

This study builds upon prior work that delineates opposing tendencies of exceptionalism and congruence that measure the degree to which a body of public contracts law diverges or adheres to the norms of private contract law. This study has two objectives. First, itseeks to define more precisely, and track the incidence and locus of a phenomenon described as exceptionalism in public procurement law. Exceptionalism enhances the powers or reduces the liabilities of the government with respect to its private contracting partners. The first branch of this study also seeks to distinguish such true exceptionalism from a phenomenon of reverse exceptionalism …

The Biological Basis Of Commitment: Does One Size Fit All?, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

Understanding the biological roots of intimate behavior is a complex undertaking that involves the integration of evolutionary biology, evolutionary psychology, neuroscience, anthropology and sociology. Evolutionary biology describes theories that explain the persistence of certain types of behavior in terms of presumed evolutionary pressures or advantages, focusing on the human mind. Evolutionary biologists assume that behavior that maximizes the presence of associated genes in the next generation is the behavior most likely to persist. In this paper, we take the growing insights that arise from the study of the biology of attachment to frame the emerging policy choices underlying the governance …

Brown And The Contemporary Brazilian Struggle Against Racial Inequality: Some Preliminary Comparative Thoughts, Robert J. Cottrol

GW Law Faculty Publications & Other Works

Brown v. Board of Education, the Supreme Court's celebrated 1954 decision that ended segregation in the United States, did not end a caste based inequality among the races. One of the nations currently struggling with such a legacy of discrimination is Brazil. Brazil's path to overcome structural inequality has some interesting parallels and differences with the American experience.

Writings by Brazilian legal scholars such as Joaquim B. Barbosa Gomes and Hedio Silva Jr. had bolstered the thought that the American civil rights experience has lessons for Brazil. This experience, which was greatly shaped by Brown, contributed to the growth of …

Thomas Jefferson Counts Himself Into The Presidency, David Fontana, Bruce Ackerman

GW Law Faculty Publications & Other Works

The Constitution instructs the President of the Senate to open the ballots submitted by members of the Electoral College, but it provides little guidance when a ballot turns out to be defective. This article provides the first in-depth consideration of two early precedents. Both Vice-President John Adams and Vice-President Thomas Jefferson confronted problems when counting the electoral votes in 1797 and 1801, respectively. Both men were placed in the awkward position of ruling on matters involving an election in which they were leading presidential candidates, but Jefferson's problem was more serious. In 1801, Georgia's electors cast their votes for Jefferson …

Environmental Regulation, Energy, And Market Entry, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

As my contribution to a symposium, I was asked to identify and to discuss conflicts between environmental regulation and pursuit of the goals of national energy policy. I identify three contexts in which I see clear conflicts between environmental regulation and energy policy - gasoline production, importation of liquefied natural gas, and transmission of electricity. In each case, I conclude that the conflict is attributable to state and local regulations. In the case of the gasoline market, I conclude that the market is beginning to perform poorly because of a combination of state land use regulations that make it impossible …

The Tyranny Of Time: Vulnerable Children, Bad Mothers, And Statutory Deadlines In Parental Termination Proceedings, Catherine J. Ross

GW Law Faculty Publications & Other Works

This paper explores issues raised by the Adoption and Safe Families Act of 1997 (ASFA) and contends that the Act may have unwittingly harmed some children and mothers by creating a categorical imperative that a child's health and safety must be a paramount consideration in child welfare decisions. After discussing the reforms made by the Act, this paper analyzes hard cases, in particular cases involving substance abusing mothers and battered mothers, and concludes that in some instances children's interests in these cases might be better served by a flexible standard where the child asserts a claim to a continued relationship …

The Digital Person: Technology And Privacy In The Information Age (Introduction), Daniel J. Solove

GW Law Faculty Publications & Other Works

THE DIGITAL PERSON: TECHNOLOGY AND PRIVACY IN THE INFORMATION AGE (ISBN: 0814798462) (NYU Press 2004) explores the social, political, and legal implications of the collection and use of personal information in computer databases. In the Information Age, our lives are documented in digital dossiers maintained by hundreds (perhaps thousands) of businesses and government agencies. These dossiers are composed of bits of our personal information, which when assembled together begin to paint a portrait of our personalities. The dossiers are increasingly used to make decisions about our lives - whether we get a loan, a mortgage, a license, or a job; …

The Appeal And Limits Of Internal Controls To Fight Fraud, Terrorism, Other Ills, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

Congress responded in similar ways to 2001's major national crises: bolstering internal controls in corporate America under the Sarbanes-Oxley Act in response to Enron's debacle and imposing internal controls on its financial services industry under the USA PATRIOT Act in response to 9/11's terrorism. These reflexive legislative responses to national crisis fit a pattern of proliferating controls as a first-order policy option dating to the mid-1970s. Documenting this proliferation and untangling the definition of internal controls, this Article attributes the appeal of internal controls as a policy option to systemic forces including the movements for deregulation and cooperative compliance, resistance …

'But I Thought He Had A Gun' - Race And Police Use Of Deadly Force, Cynthia Lee

GW Law Faculty Publications & Other Works

It is undisputed that Blacks are disproportionately represented among the victims of police shootings. In a comprehensive review of the literature on police use of deadly force, James Fyfe reports that every study that has examined this issue [has] found that blacks are represented disproportionately among those at the wrong end of police guns. Although Blacks represent approximately 13 percent of the population in the United States, in parts of the country they constitute 60 to 85 percent of the victims of police shootings. On average, Blacks are more than six times as likely as Whites to be shot by …

A Delicate Task: Balancing The Rights Of Children And Mothers In Parental Termination Proceedings, Catherine J. Ross

GW Law Faculty Publications & Other Works

This article considers the independent liberty interests of children in foster care and their mothers in parental termination proceedings. Federal reforms enacted in 1997 impose a mandatory deadline for the state to terminate parental rights. That policy erroneously presumes that the passage of time suffices to establish parental fault and satisfies a parent's due process rights to her child. The policy also fails to protect the minority of children in foster care who assert an interest in preserving a safe relationship with mothers who are unlikely to regain custody within the state's time frame - including many substance abusers, incarcerated …

Political Questions And Political Remedies, Jonathan R. Siegel

GW Law Faculty Publications & Other Works

Defenders of the political question doctrine sometimes observe that the lack of a judicial remedy for a constitutional violation does not deprive injured parties of all remedy, because injured parties can pursue a political or an electoral remedy - they can seek relief at the ballot box or in the political process. This essay criticizes that argument. Political and electoral remedies for constitutional violations are ineffective for important practical and theoretical reasons that grow out of the different structures of the judicial, political, and electoral processes. The judicial process focuses each case on a particular issue; candidates in elections always …

The Occ's Preemption Rules Exceed The Agency's Authority And Present A Serious Threat To The Dual Banking System And Consumer Protection, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

In January 2004, the Office of the Comptroller of the Currency (OCC) issued new regulations that are intended to preempt a broad range of state laws from applying to national banks and their operating subsidiaries. The OCC's rules declare that state laws are preempted if they obstruct, impair, or condition a national bank's ability to fully exercise its federally-authorized powers, either directly or through operating subsidiaries. According to the OCC, state laws apply to national banks only to the extent that state laws provide the legal infrastructure that makes it practicable for national banks to do business. The OCC's new …

Making Federal Information Technology Accessible: A Case Study In Social Policy And Procurement, Christopher R. Yukins

GW Law Faculty Publications & Other Works

Section 508 of the Rehabilitation Act requires that all information technology bought by the federal government be accessible to persons with disabilities. That goal, simple to state, has been enormously complex to implement. In imposing a social initiative on the procurement system, Congress has left a huge number of issues unresolved - including, most critically, who is to pay for the initiative. This article reviews the issues raised by Section 508, and traces common patterns that emerge when, as with Section 508, social goals are implemented through a large, complex, and deeply entrenched procurement system. The article traces the impact …

The Constitutionality Of International Delegations, Edward T. Swaine

GW Law Faculty Publications & Other Works

Does the continuing assignment of legislative power to international institutions like the WTO, NAFTA, and the U.N. infringe the U.S. Constitution? The political controversy over the continued reliance on such organizations, and the potential effect on welfarist and democratic values, is increasingly perceived to have a legal dimension. Recent scholarship has taken two radically different views. One recent strain takes the position that such delegations are constitutionally problematic, chiefly in terms of the nondelegation doctrine and federalism, and proposes that the gap between these principles and constitutional practice be reduced. But others argue that these doctrines lack legal or normative …

Competitive Sourcing Policy: More Sail Than Rudder, Steven L. Schooner

GW Law Faculty Publications & Other Works

This essay predicts that the Bush administration's competitive sourcing initiative will fail. Granted, the number of government employees will continue to shrink, while the number of contractor personnel serving the Government will methodically increase. But the Government's unwillingness to appreciate the policy's costs leads to the corresponding failure to identify, obtain, and invest appropriate resources needed to properly effectuate the policy. The Government simply lacks sufficient qualified acquisition, contract management, and quality control personnel to handle the outsourcing burden. Because the Government is ill-positioned to successfully out-source in a manner that generates higher quality services, lower prices, greater efficiency, or, …

Brown And The Contemporary Brazilian Struggle Against Racial Inequality: Some Preliminary Comparative Thoughts, Robert J. Cottrol

GW Law Faculty Publications & Other Works

Brown v. Board of Education, the Supreme Court's celebrated 1954 decision that ended segregation in the United States, did not end a caste based inequality among the races. One of the nations currently struggling with such a legacy of discrimination is Brazil. Brazil's path to overcome structural inequality has some interesting parallels and differences with the American experience.
Writings by Brazilian legal scholars such as Joaquim B. Barbosa Gomes and Hedio Silva Jr. had bolstered the thought that the American civil rights experience has lessons for Brazil. This experience, which was greatly shaped by Brown, contributed to the growth …

The Challenge Of Cooperative Regulatory Relations After Enlargement, Francesca Bignami

GW Law Faculty Publications & Other Works

This paper conceptualises European governance as a continuous series of collective action games among national regulators. European administration is theorized as a set of mutually beneficial relations among independent regulators, rather than as a hierarchy of supranational institutions, courts, and national administrators. The collective action approach highlights the importance of certain factors in fostering regulatory cooperation and enabling the common market to become an administrative reality: repeated interactions, monitoring and sanctioning by the Commission and the courts, reciprocity norms, and trust. It also suggests that one of the most significant challenges of enlargement will be to establish cooperative regulatory exchanges …

Transparency And Participation In The World Trade Organization, Steve Charnovitz

GW Law Faculty Publications & Other Works

This paper discusses the challenge of improving transparency and participation in the World Trade Organization (WTO). Part I explores the development in international trade law of the norm for transparency and participation at the national level. The analysis begins with Immanuel Kant and traces the history of the issue in trade through the League of Nations and then to the postwar trading system culminating in the WTO. Part II describes the WTO's practices regarding openness and public participation, and then criticizes the current limitations. Part III proposes several new steps for the WTO to take to promote transparency and participation. …

Using Framework Statutes To Facilitate U.S. Treatymaking, Steve Charnovitz

GW Law Faculty Publications & Other Works

This paper examines the two tracks used by the United States to negotiate and approve international treaties - (1) the traditional treaty process requiring Senate consent by a two-thirds vote and (2) the newer fast track process used for trade agreements, requiring Congressional passage of a law to approve and implement the agreement. Several historical and current examples are used such as the Treaty of Versailles and the Kyoto Protocol on climate change. The paper explains why the latter process is superior in many ways, and asks whether it should be applied more broadly beyond the topic of trade. Three …

An Analysis Of Pascal Lamy's Proposal On Collective Preferences, Steve Charnovitz

GW Law Faculty Publications & Other Works

In September 2004, then-European Commissioner for Trade Pascal Lamy released his study on the political challenge of 'collective preferences' for the world trading system. Lamy defines 'collective preferences' as 'the end result of choices made by human communities that apply to the community as a whole'. The adoption of collective preferences by governments can complicate international trade when a good or service from an exporting country is not acceptable in an importing country. Collective preferences cause a problem for the WTO if the resulting measure violates WTO rules and yet the measure is too popular in the regulating country for …

Demonstrations, Security Zones, And First Amendment Protection Of Special Places, Mary M. Cheh

GW Law Faculty Publications & Other Works

There has been a marked increase in government suppression of public protests and demonstrations. Certain areas, such as public space near the White House, have been effectively placed off limits to demonstrators. Protestors are put out of sight, down the road, or otherwise away from the object of their protest. The Secret Service has created security zones insulating the President and his entourage from the sights and sounds of opposition marches and demonstrations. And police are using sophisticated tactics, such as surveillance, infiltration, disinformation, and pre-emptive arrests to undermine and frustrate the ability of protestors to conduct their marches and …

Facilitating Auditing's New Early Warning System: Control Disclosure, Auditor Liability And Safe Harbors, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

This Article considers the interplay between new auditing standards governing audits of internal control over financial reporting and pre-existing legal standards governing auditor liability for audit failure. The interplay produces skewed liability incentives that, if unadjusted, threaten to impair the objective of this new control-audit regime. The regime's objective is, in part, to provide an early warning to financial statement users when current financial statements are reliable but control weaknesses indicate material risk of a company's future inability to produce reliable financial statements. To be meaningful, auditor disclosure of material weaknesses and potential effects is necessary.

While liability rules under …

From Convergence To Comity In Corporate Law: Lessons From The Inauspicious Case Of Sox, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

The Sarbanes-Oxley Act shook the corporate world beyond US borders more than Enron shook the corporate world within them. This Article goes beyond the prodigious commentary on the Act itself to understand the nature of its reception outside the US.

It first develops a hubs-and-spokes account of global corporate life in which corporate purpose, which varies around the world, forms the hub and radiates spokes constituting governance, finance, accounting, and auditing - all of which also differ around the world. Using this model, the Article suggests that non-US receptions to the Act exhibited unfounded fear that the exportation of US …