Law Commons^™

Risky Business: Managing Interagency Acquisition, Steven L. Schooner

GW Law Faculty Publications & Other Works

This brief piece applauds the Government Accountability Office (GAO) for adding the management of interagency contracting to its High Risk List. It suggests that interagency acquisition, the poster child for the flexible, streamlined, businesslike approach of the 1990's acquisition reform movement, has become the federal procurement system's Achilles heel. It recommends that the government needs more qualified professionals to proactively craft results-oriented contracts and to manage effectively contractors' performance. Finally it suggests commencing a meaningful conversation about the appropriate role of businesslike models, generally, and fees, specifically, in governance.

The European Union's New Ambitions, Francesca Bignami

GW Law Faculty Publications & Other Works

This contribution, prepared for the annual meeting of the American Society of International Law, examines the impact of the democratization of the European Union on external relations. It argues that the empowerment of the European Parliament and the emergence of fundamental rights carry the potential for discord in international relations. Not only must another set of elected politicians - European parliamentarians - ratify international agreements, but what were previously styled as technical decisions are now framed as fundamental value choices that affect all European citizens.

Encyclopedia Of Genocide And Crimes Against Humanity, Dinah L. Shelton

GW Law Faculty Publications & Other Works

This three-volume encyclopedia contains information and photographs about historical and recent instances of genocide and crimes against humanity. The introduction provides a brief history of recognition and definitions of genocide and related war crimes. The volumes focus on the political leaders in charge of the genocides and war crimes in addition to other facts about the crimes themselves.

Playing With Fire: Feminist Legal Theorists And The Tools Of Economics, Neil H. Buchanan

GW Law Faculty Publications & Other Works

During the discussions at Professor Fineman’s recent feminist legal theory workshops, several participants argued that feminists should use the “tools” of mainstream economics to build a more rigorous foundation for their analyses. Feminist legal theorists, it was argued, had their hearts in the right place, but their arguments lacked sufficient intellectual (“hard-headed”) rigor to carry the day. Based on this view, the best strategy would be to use economic tools (which, these participants argued, are value neutral) to build a rigorous, logical foundation on which legal feminists could confidently stand. The problem – which applies to all areas of legal …

Accountability Of Nongovernmental Organizations (Ngos) In Global Governance, Steve Charnovitz

GW Law Faculty Publications & Other Works

The issue of the accountability on nongovernmental organizations (NGOs) in global governance has received increased attention in recent years. The purpose of this paper is to analyze the issue, to consider whether any public problems exist, and to make recommendations on what should be done. The paper contains three parts. Part I examines the historical context of NGO accountability starting with the Papal Encylical Rerum Novarum of 1891 and considering episodes relating to the League of Nations and the founding of the United Nations. Part II provides an overview of the contemporary debate on NGO accountability and uses a recent …

International Standards And The Wto, Steve Charnovitz

GW Law Faculty Publications & Other Works

This study provides an overview of how the World Trade Organization rules relate to international standards, that is, standards propounded by some international entity. The topic of standards is a cross-cutting issue in the WTO because rules regarding international standards appear in several of the covered WTO agreements. The paper contains several parts. Part I of the paper explores the meaning of the term international standard and adopts a broad definition for analytical purposes. Part II introduces a typology for international standards. Part III discusses why international standards are important to economic development. Part IV examines some of the key …

Should Lawyers Participate In Rigged Systems: The Case Of The Military Commissions, Mary M. Cheh

GW Law Faculty Publications & Other Works

Lawyers often represent clients when the odds are long or a catastrophe likely. The facts might be harmful, the evidence overwhelming, or the law clearly on the side of the opponent. Still, we do the best we can. But what if the system is rigged? What if the system has the trappings of a fair fight, but is, in fact, skewed to one side and, by design, the lawyer cannot fully defend the client? What if the lawyer can only lend legitimacy to a process that at its core is biased, slanted in favor of the other side, or fundamentally …

Revitalizing The Forgotten Uniformity Constraint On The Commerce Power, Thomas Colby

GW Law Faculty Publications & Other Works

Employing a straightforward textual reading of the Commerce Clause, which, unlike various other constitutional clauses, does not expressly mandate uniform regulation, the Supreme Court has recently declared that Congress is free to enact commercial regulations that apply in some states, but not in others, or that explicitly treat some states differently than others. This Article seeks to call that conclusion into question, and in the course of doing so, to explore the proper roles of history and text in constitutional decisionmaking.

From a historical perspective, the desire for uniformity was both the precipitating factor in the creation of the federal …

The Labor Movement Needs A Twenty-First Century Committee For Industrial Organization, Charles B. Craver

GW Law Faculty Publications & Other Works

Following the enactment of the NLRA in 1935, American Federation of Labor craft unions had difficulty organizing persons employed in manufacturing industries since most failed to fit within the jurisdictions of particular unions. The AFL formed the Committee for Industrial Organization to determine how best to organize these workers, and this Committee ultimately withdrew from the AFL and formed the Congress of Industrial Organizations. The CIO unions quickly organized the industrial workers in the steel, automobile, electrical manufacturing, and rubber industries. By the late 1950s, 35 percent of private sector employees were union members. As the United States economy began …

Government For Hire: Privatizing Foreign Affairs And The Problem Of Accountability Under International Law, Laura T. Dickinson

GW Law Faculty Publications & Other Works

Although the privatization of governmental functions has long since become a fixture of the American political landscape and has engendered a rich scholarly debate among domestic administrative law scholars, far less attention has been paid to the simultaneous privatization of what might be called the foreign affairs functions of government. Yet privatization is as significant in the international realm as it is domestically. The United States and other countries now regularly rely on private parties to provide all forms of foreign aid, to perform once sacrosanct diplomatic tasks such as peace negotiations, and even to undertake a wide variety of …

Accountability Of State And Non-State Actors For Human Rights Abuses In The 'War On Terror', Laura T. Dickinson

GW Law Faculty Publications & Other Works

The decisions regarding detainees in the so-called "war on terror" - Hamdi, Padilla, and Rasul - leave a number of questions unresolved. This essay focuses on one question in particular: What happens when terrorists are detained not by U.S. authorities, but by private contractors hired by U.S. authorities? Domestically and internationally, we are seeing an increasing turn to private contractors performing what we might think of as core governmental functions. Accordingly, it is vital to consider to what extent private actors involved in the treatment of detainees in the war on terror can be held accountable for their actions. Although …

527 Groups And Campaign Finance: The Language, Logic, And Landscape Of Campaign Finance Regulation, Miriam Galston

GW Law Faculty Publications & Other Works

In 2004 the country witnessed the first presidential election since the passage of the Bipartisan Campaign Reform Act of 2002 (BCRA). A major purpose of BCRA was to end two of the worst abuses of the federal campaign finance law-sham issue ads and soft money raised by political party committees. The BCRA amendments, like existing federal campaign finance law, were designed first and foremost to prevent corruption or the appearance of corruption resulting from large contributors' requesting favors from or gaining influence with the public officials whose campaigns their contributions benefited, regardless of whether the contributor or the lawmaker initiated …

Improving Regulation Through Incremental Adjustment, Robert L. Glicksman, Sidney A. Shapiro

GW Law Faculty Publications & Other Works

Claiming that existing regulation is excessive and irrational, regulatory critics have successfully convinced Congress and the White House to implement a plethora of procedural requirements to analyze a proposed regulation before it is promulgated. In our book, Risk Regulation at Risk: Restoring A Pragmatic Approach (2003), we argued that the previous initiatives address the possibility of regulatory failure on the wrong end of the regulatory policy implementation process. We suggested that one way of improving regulation would be to rely on incremental adjustments in regulation on the back end of the regulatory process. This article addresses in more detail the …

The Doctrine Of Preemptive Self-Defense, Sean D. Murphy

GW Law Faculty Publications & Other Works

To the extent that the intervention in Iraq in 2003 is regarded as an act of preemptive self-defense, the aftermath of that intervention may presage an era where states resist resorting to large-scale preemptive self-defense. The intervention in Iraq highlighted considerable policy difficulties with the resort to preemptive self-defense: an inability to attract allies; the dangers of faulty intelligence regarding a foreign state's weapons programs and relations with terrorist groups; the political, economic and human costs in pursuing wars of choice; and the resistance of a local populace or radicalized factions to what is viewed as an unwarranted foreign invasion …

A Theory Of Copyright's Derivative Right And Related Doctrines, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

Borrowing from the rent dissipation literature that has proven useful in patent analysis, in this Article I provide an economic foundation for copyright’s derivative right to prepare sequels and adaptations and suggest a straightforward doctrinal test for that right. I argue that the suppression of competition in creating adaptations of the same copyrighted expression, rather than being a loss, might instead be the derivative right’s chief economic virtue, giving an author control over adaptations and limiting the production of those that would be close substitutes for one another. In Part I, I explain and question the conventional justification of the …

Some Reflections On The Diversity Of Corporate Boards: Women, People Of Color, And The Unique Issues Associated With Women Of Color, Lisa M. Fairfax

GW Law Faculty Publications & Other Works

As one might expect, there are many similarities between the circumstances of women directors and directors of color, which includes African Americans, Latinos, and Asian Americans. Indeed, both groups began appearing on corporate boards in significant numbers during the same period - right after the Civil Rights Movement pursuant to which the push for racial equality throughout society precipitated efforts to achieve greater representation of people of color as well as women on corporate boards. Moreover, while women and people of color have experienced some increase in board representation over the last few decades, both groups also have encountered significant …

Patent Auctions, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

In his famous paper advancing a prospect theory of patents, Edmund Kitch found inspiration in, but quickly dismissed, a footnote authored by Yoram Barzel suggesting that rights to inventions might be distributed through an auction mechanism. Kitch maintained that the patent system itself achieves the benefit of an auction by giving control over the inventive process at a relatively early stage. The patent system, moreover, avoids the need for governmental officials in an auction regime to define the boundaries of inventions that have not yet been created.

Patent auctions, however, may be more appealing if the auctions are for rights …

The New York Bar And Reform Of The Elected Judiciary After The Civil War, Renée Lettow Lerner

GW Law Faculty Publications & Other Works

This paper deals with the history of America's other peculiar institution: the elected judiciary. Elected judges are found virtually nowhere else in the world, but in America they are a fact of life in the considerable majority of states. The history of the elected judiciary is surprisingly little explored. This paper examines the post-Civil War trend away from Jacksonian populism and toward a more aristocratic view of the judiciary as a body set apart from the people. After the Civil War, many states, including New York, lengthened terms of office for their elected judges; some states even switched back to …

Emerging Policy And Practice Issues (2004), Steven L. Schooner, Christopher R. Yukins

GW Law Faculty Publications & Other Works

This paper, presented at the West Government Contracts Year in Review Conference (covering 2004), attempts to identify the key trends and issues for 2005. The paper suggests that two rather unique items merit particular attention: the Darleen Druyun saga and the plight of contractors working in Iraq. Both frame compliance issues in stark relief. At the same time, we address what we perceive as the far more vexing issue that permeates federal procurement today: the excessive reliance upon, and corresponding misuse of, task-order contracting. We also discuss procurement spending trends (and the inevitable belt-tightening that must follow); contract-related litigation trends; …

From International Law To Law And Globalization, Paul Schiff Berman

GW Law Faculty Publications & Other Works

International law's traditional emphasis on state practice has long been questioned, as scholars have paid increasing attention to other important - though sometimes inchoate - processes of international norm development. Yet, the more recent focus on transnational law, governmental and non-governmental networks, and judicial influence and cooperation across borders, while a step in the right direction, still seems insufficient to describe the complexities of law in an era of globalization. Accordingly, it is becoming clear that "international law" is itself an overly constraining rubric and that we need an expanded framework, one that situates cross-border norm development at the intersection …

From Pluralism To Individualism: Berle And Means And 20th-Century American Legal Thought, Dalia Tsuk Mitchell

GW Law Faculty Publications & Other Works

This article is an intellectual history of Adolf A. Berle, Jr. and Gardiner C. Means, The Modern Corporation and Private Property (1932). I argue that Berle and Means's concern was not the separation of ownership from control in large pubic corporations, as many scholars have suggested, but rather the allocation of power between the state and a wide range of institutions. As I demonstrate, Berle and Means shared a legal pluralist vision of the modern state. Legal pluralism treated organizations as centers of power that had to be accommodated within the political and legal structure. Berle and Means viewed collective …

Legal Scholarship Symposium: The Scholarship Of Lawrence M. Friedman, Robert J. Cottrol

GW Law Faculty Publications & Other Works

Lawrence M. Friedman has achieved a singular preeminence as a legal historian for articulating a new vision of legal history as a discipline in his 1973 work entitled A History of American Law. This book treats American law as a mirror of society. At the time, Friedman's vision was still something quite new in American legal historiography. James Willard Hurst's notions of legal history as a sociolegal inquiry would heavily influence Friedman, helping to move the field into new and often surprising precincts. Friedman's approach to legal history is one that introduced us to previously unexamined actors and institutions.

Whether …

The 'Wildavsky Heuristic': The Cultural Orientation Of Mass Political Opinion, Donald Braman, John Gastil, Dan M. Kahan, Paul Slovic

GW Law Faculty Publications & Other Works

In a provocative 1987 article, Aaron Wildavsky asserted that culture operates as the fundamental orienting force in the generation of mass public opinion. The meanings and interpersonal associations that inhere in discrete ways of life, he argued, shape the heuristic processes by which politically unsophisticated individuals, in particular, choose what policies and candidates to support. We systematize Wildavsky's theory and integrate it with existing accounts of mass opinion formation. We also present the results of an original national survey (N = 1843), which found that the cultural orientations featured in Wildavsky's writings accounted for policy-related attitudes on gun control, environment, …

Gender, Race, And Risk Perception: The Influence Of Cultural Status Anxiety, Donald Braman, Dan M. Kahan, John Gastil, Paul Stovic, C.K. Mertz

GW Law Faculty Publications & Other Works

Why do white men fear various risks less than women and minorities? Known as the white male effect, this pattern is well documented but poorly understood. This paper proposes a new explanation: cultural status anxiety. The cultural theory of risk posits that individuals selectively credit and dismiss asserted dangers in a manner supportive of their preferred form of social organization. This dynamic, it is hypothesized, drives the white male effect, which reflects the risk skepticism that hierarchical and individualistic white males display when activities integral to their status are challenged as harmful. The paper presents the results of an 1800-person …

Civil Society And International Organizations: A Liberal Framework For Global Governance, Francesca Bignami

GW Law Faculty Publications & Other Works

Over the past decade, international economic organizations have come under attack as illegitimate and oppressive. The remedy, according to the critics, is civil society: non-state associations should have a right to participate in the policymaking activities of international organizations. But the moral grounds for giving civil society such a central role in global governance, together with the ramifications of those moral grounds for organizational reform in the international arena, have not yet been systematically analyzed. Why are associations outside the state better placed than trained, career civil servants and elected politicians to decide on international aid, the regulatory pre-requisites for …

Remedies In International Human Rights Law (Chapter One), Dinah L. Shelton

GW Law Faculty Publications & Other Works

This book discusses the various approaches to and types of remedies available for violations of international human rights law. The first point is that remedies have both a procedural and substantive component. Procedural remedies means that there is an opportunity to be heard, while the substantive facet refers to the “relief afforded the successful claimant.” The first chapter of the book notes that preliminary requirements are availability of the justice system and discusses the purposes of remedies, including compensating the victim, deterring future crimes, condemnation, retribution, and restorative justice (which aims to find options other than punishment and focusing more …

Finance Theory And Accounting Fraud: Fantastic Futures Versus Conservative Histories, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

Intellectual tension between the fields of finance and accounting may help to explain explosion of public company frauds. Finance theory diminishes the relevance of accounting information. Enron exploited this consequence while the SEC bought into it. After widespread frauds were exposed, Congress passed laws that address symptoms of finance's futurism, not disease. Laws essentially prohibit pro forma financial reporting and regulate the selective flow of futuristic information to financial analysts. Untouched is the underlying disease of regulatory mandates requiring extensive disclosure of forward-looking information. Until the 1970s, the SEC prudently prohibited such futuristic disclosure as inherently unreliable; assisted by finance …

Private Standards In Public Law: Copyright, Lawmaking And The Case Of Accounting, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

Government increasingly leverages its regulatory function by embodying in law standards that are promulgated and copyrighted by non-governmental organizations. Departures from such standards expose citizens to criminal, civil and administrative sanctions, yet private actors generate, control and limit access to them. Despite governmental ambitions, no one is responsible for evaluating the legitimacy of this approach and no framework exists to facilitate analysis. This Article contributes an analytical framework and, for the federal government, nominates the Director of the Federal Register to implement it.

Analysis is animated using among the oldest and broadest examples of this pervasive but stealthy phenomenon: embodiment …

Ip Transactions: On The Theory & Practice Of Commercializing Innovation, F. Scott Kieff

GW Law Faculty Publications & Other Works

All too often within organizations and communities, innovations are not generated or put to use as rapidly or as broadly as they could be. Chief targets for blame include the problems of transaction costs, agency costs, lack of coordination, and improper incentives. Borrowing from the rich literature in the field generally known as new institutional economics, which has studied these types of problems more broadly, this Article elucidates how some practical tools might be expected to mitigate such problems. Particular arrangements of formal law and informal practice may help reach across the "valley of death" between early stage technologies and …

Organizational Conflicts Of Interest: A Growing Integrity Challenge, Daniel I. Gordon

GW Law Faculty Publications & Other Works

Recent experience in the United States suggests that public procurement professionals increasingly encounter a particular kind of conflict of interest, organizational conflicts of interest (OCIs). OCIs arise in situations where an entity plays two or more roles that are, in some sense, at odds with one another. This article endeavors to set out some points for consideration in this increasingly important area. Alleged OCIs have been identified in various activities of the U.S. federal procurement process, from contracts for security services in Iraq to public/private competitions for work to be performed in the U.S. This article first suggests reasons for …