Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 77

Full-Text Articles in Law

Finance Theory And Accounting Fraud: Fantastic Futures Versus Conservative Histories, Lawrence A. Cunningham Jan 2005

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 ...


Conflict Of Laws, Globalization, And Cosmopolitan Pluralism, Paul Schiff Berman Jan 2005

Conflict Of Laws, Globalization, And Cosmopolitan Pluralism, Paul Schiff Berman

GW Law Faculty Publications & Other Works

This essay is a contribution to a symposium at the January 2005 annual meeting of the Association of American Law Schools Section on Conflict of Laws. More than ten years ago, German theorist Gunther Teubner called for the creation of an "intersystemic conflicts law," derived not just from collisions between the distinct nation-states of private international law, but from what he described as "conflicts between autonomous social subsystems." Since then, the web of intersystemic lawmaking Teubner described has only grown more complex. The collision of these multiple legal and quasi-legal normative systems requires, as Teubner suggested, a broader approach to ...


Trial By Market: A Thought Experiment, Michael B. Abramowicz Jan 2005

Trial By Market: A Thought Experiment, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

This Article considers the possibility of providing incentives to judges to decide cases in the same way that an appellate panel would decide them. Random selection of a proportion of cases for retrial could be used to encourage judges to place aside their preferences in deference to the perceived preferences of a majority of judges. Providing such incentives to judges may reduce the need for alternative approaches to reducing judicial discretion, such as substantive law based on rules rather than on discretion. An information market similarly could be used to accomplish the task of adjudication, with some cases randomly selected ...


From Pluralism To Individualism: Berle And Means And 20th-Century American Legal Thought, Dalia Tsuk Mitchell Jan 2005

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 ...


On The Alienability Of Legal Claims, Michael B. Abramowicz Jan 2005

On The Alienability Of Legal Claims, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

Courts have become increasingly skeptical about rules restricting plaintiffs' ability to sell legal claims, and legal commentators have argued that markets for claims would be efficient, moving claims to those who can prosecute them most efficiently. Claim sales intuitively might appear to present a clash of economic and philosophical arguments, with perceived efficiency benefits coming at the expense of societal commitments to values other than efficiency. In this Article, Professor Abramowicz argues that economic and philosophical arguments do point in opposite directions, but in the reverse directions from what one might expect. A range of philosophical and other noneconomic considerations ...


The Uses Of The Concept Of Efficiency In Tax Analysis, Neil H. Buchanan Jan 2005

The Uses Of The Concept Of Efficiency In Tax Analysis, Neil H. Buchanan

GW Law Faculty Publications & Other Works

The flexibility and ubiquity of the term efficiency in tax analysis can be a double-edged sword. While tax scholars are naturally drawn to the notion of efficiency, with its implied virtues of eliminating waste and of guiding policy choices through objective, non-normative analysis, the danger exists that we can lose sight of which type of efficiency we are talking about when we invoke the concept. What one scholar calls efficient might be quite inefficient under the definition or perspective used by another scholar.


The Labor Dimension Of The Emerging Free Trade Area Of The Americas, Steve Charnovitz Jan 2005

The Labor Dimension Of The Emerging Free Trade Area Of The Americas, Steve Charnovitz

GW Law Faculty Publications & Other Works

This study explores a potential labor dimension for the FTAA. The study is divided into four parts: Part 1 provides context by reviewing the history of Inter-American economic cooperation, especially on labor and trade. Part 2 examines how labor has been addressed in the major free trade agreements of the Americas. Part 3 looks at the normative basis for international labor cooperation. Part 4 makes specific recommendations for addressing labor issues in the FTAA. The ideas in Part 4 seek to stimulate practical, concerted action to address labor and employment problems of regional economic integration. My recommendations for the FTAA ...


Revitalizing The Forgotten Uniformity Constraint On The Commerce Power, Thomas Colby Jan 2005

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 ...


Government For Hire: Privatizing Foreign Affairs And The Problem Of Accountability Under International Law, Laura T. Dickinson Jan 2005

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 ...


Improving Regulation Through Incremental Adjustment, Robert L. Glicksman, Sidney A. Shapiro Jan 2005

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 ...


Spare The Rod, Spoil The Director? Revitalizing Directors' Fiduciary Duty Through Legal Liability, Lisa M. Fairfax Jan 2005

Spare The Rod, Spoil The Director? Revitalizing Directors' Fiduciary Duty Through Legal Liability, Lisa M. Fairfax

GW Law Faculty Publications & Other Works

It appears that our society has tacitly agreed to spare corporate directors any significant legal liability - which includes both financial and incarceration - for failing to perform their duties as board members. Thus, over the last twenty years, there has been a virtual elimination of legal liability - particularly in the form of financial penalties - for directors who breach their fiduciary duty of care. This is true despite the fact that we entrust directors with the awesome responsibility of monitoring all of America's corporations as well as the officers and agents within those corporations. More surprisingly, this tacit agreement against legal ...


Sarbanes-Oxley, Corporate Federalism, And The Declining Significance Of Federal Reforms On State Director Independence Standards, Lisa M. Fairfax Jan 2005

Sarbanes-Oxley, Corporate Federalism, And The Declining Significance Of Federal Reforms On State Director Independence Standards, Lisa M. Fairfax

GW Law Faculty Publications & Other Works

Commentators have argued that the Sarbanes-Oxley Act of 2002 ("Sarbanes-Oxley" or the "Act") raises federalism concerns because it regulates the internal affairs of a corporation, including the composition of, and qualifications for, corporate boards, in a manner traditionally reserved to states. This Article responds to those claims, arguing that the Act reflects a relatively minimal intrusion into state law, particularly with regard to issues of director independence. This Article further argues that the Act's failure to disturb state law on these issues may impede its ability to tighten director independence standards and by extension may undermine its ability to ...


Educating Lawyers For The Future Legal Profession, Thomas D. Morgan Jan 2005

Educating Lawyers For The Future Legal Profession, Thomas D. Morgan

GW Law Faculty Publications & Other Works

What today's law students do as lawyers will be profoundly affected by changes their clients experience. Clients are likely to face more global competition than earlier generations could imagine, and they are likely to value lawyers who understand the non-legal aspects of their problems. Tomorrow's lawyers are likely to have to be more specialized than their predecessors, and many will deliver services that are less personal, more commodity-like, and less financially rewarding. Legal education, in turn, faces challenges producing lawyers capable of functioning in that world. Future lawyers will have to be simultaneously more specialized and more capable ...


Realizing The Promise Of Restructuring The Electricity Market, Richard J. Pierce Jr Jan 2005

Realizing The Promise Of Restructuring The Electricity Market, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

In this contribution to a symposium on restructuring the U.S. electricity market, I summarize the peaks and valleys that have characterized the restructuring process over the past two decades. I begin by describing the reasons why I joined with a group of other academics twenty years ago in an effort to restructure the U.S electricity market. The market was characterized by large, well-documented structural and operational maladies; it had performed poorly for over a decade; its basic characteristics were consistent with increased reliance on market forces as an effective governance mechanism; and, our recent success in restructuring analogous ...


Mergers In The Electric Power Industry, Richard J. Pierce Jr Jan 2005

Mergers In The Electric Power Industry, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

In this draft chapter, Professor Pierce provides an overview of the ongoing process through which the Federal Energy Regulatory Commission (FERC) has been attempting to restructure the U.S. electricity industry to create effectively competitive wholesale electricity markets for almost two decades and of the merger policies FERC has adopted and applied during that period. Pierce gives FERC high marks for adopting as its own the DOJ/FTC merger guidelines and then attempting to apply those guidelines to the unique characteristics of the evolving competitive electricity markets FERC has been attempting to create. He identifies three difficult systemic questions FERC ...


Sex Discrimination In The Nineties, Seventies Style: Case Studies In The Preservation Of Male Workplace Norms, Michael Selmi Jan 2005

Sex Discrimination In The Nineties, Seventies Style: Case Studies In The Preservation Of Male Workplace Norms, Michael Selmi

GW Law Faculty Publications & Other Works

The prevailing sentiment today is that overt intentional sex discrimination in the workplace has receded substantially and has been replaced by more complicated practices of subtle or structural discrimination often tied to women's family commitments. This article challenges that consensus by exploring the rise of class action sex discrimination cases that have uncovered what ought to be defined as overt intentional discrimination with a design to preserve existing male norms in the workplace. The article analyzes cases that have arisen in the securities and grocery industries, as well as a spate of class action sexual harassment cases, all of ...


The Faith-Based Initiative And The Constitution, Ira C. Lupu, Robert W. Tuttle Jan 2005

The Faith-Based Initiative And The Constitution, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

This paper, originally presented as the Annual Lecture at DePaul University's Church/State Center, addresses the many constitutional issues raised by President George W. Bush's Faith-Based and Community Initiative. Part I of the paper provides the political and legal background of the Initiative, up to and including the recent flurry of Executive Branch activity to implement it. Part II of the paper constructs the constitutional prism through which we believe the Initiative, like all constitutional questions relating to religion, should be viewed. In particular, we analyze the law of the Religion Clauses in terms of the constitutional distinctiveness ...


The Doctrine Of Preemptive Self-Defense, Sean D. Murphy Jan 2005

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 ...


Gender, Race, And Risk Perception: The Influence Of Cultural Status Anxiety, Donald Braman, Dan M. Kahan, John Gastil, Paul Stovic, C.K. Mertz Jan 2005

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 ...


Dignity In Race Jurisprudence, Christopher A. Bracey Jan 2005

Dignity In Race Jurisprudence, Christopher A. Bracey

GW Law Faculty Publications & Other Works

Racial justice demands dignity; the acknowledgment and affirmation of the equal humanity of people of color. Denying dignity on the basis of color creates racial subordination, which triggers dignitary harms such as individual acts of racism and communal exclusion leading to diminished health, wealth, income, employment and social status. The legal recognition of dignity is therefore a prerequisite to political and social equality. For Americans of African descent, dignity was long denied by the legal endorsement of slavery and the degrading policies of segregation. The struggle to be treated equally human eventually found success in landmark cases such as Brown ...


How Do We Know When An Enterprise Exists? Unanswerable Questions And Legal Polycentricity In China, Donald C. Clarke Jan 2005

How Do We Know When An Enterprise Exists? Unanswerable Questions And Legal Polycentricity In China, Donald C. Clarke

GW Law Faculty Publications & Other Works

One of the most perplexing aspects of Chinese enterprise law concerns the conditions under which state institutions will acknowledge and give effect to the existence of a business organization distinct from the natural or legal persons that participate in its operations. The answer might appear to be simple - they will do so whenever legally stipulated conditions are met - but this answer would be wrong. State institutions often give real and meaningful effect to the existence of entities with no apparent statutory basis, or whose legal basis dictates consequences that seem at odds with the consequences called for by constitutionally superior ...


Emerging Policy And Practice Issues (2004), Steven L. Schooner, Christopher R. Yukins Jan 2005

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 Jan 2005

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 of ...


Risky Business: Managing Interagency Acquisition, Steven L. Schooner Jan 2005

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.


Civil Society And International Organizations: A Liberal Framework For Global Governance, Francesca Bignami Jan 2005

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 ...


The Problem Of Patent Underdevelopment, Michael B. Abramowicz Jan 2005

The Problem Of Patent Underdevelopment, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

Commentators have long recognized that much of the work of commercializing an invention occurs after a patent is received. They have not recognized, however, that by the time market conditions make commercialization potentially attractive, the remaining patent term might be sufficiently short that a patentee will not develop an invention or will not spend as much on development as if more patent term remained. The concern about patent underdevelopment provides a counterweight to patent prospect theory, which urges that patents be issued relatively early. By insisting on a substantial degree of achievement before patenting, the patent system reduces the risk ...


Accountability Of State And Non-State Actors For Human Rights Abuses In The 'War On Terror', Laura T. Dickinson Jan 2005

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 ...


Private Standards In Public Law: Copyright, Lawmaking And The Case Of Accounting, Lawrence A. Cunningham Jan 2005

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 ...


Lessons For Competition Policy From The Vitamins Cartel, William E. Kovacic Jan 2005

Lessons For Competition Policy From The Vitamins Cartel, William E. Kovacic

GW Law Faculty Publications & Other Works

Mergers have the potential for negative social welfare consequences from increased likelihood or effectiveness of future collusion. This raises the question of whether there are meaningful thresholds for the post-merger industry that should trigger significant scrutiny by the Department of Justice or Federal Trade Commission. This paper provides empirical analysis relevant to this question. The data does not come from an industry in which there were mergers, but instead from an industry in which explicit collusion was admittedly rampant in the 1990's, the Vitamins Industry. Different vitamin products are produced by different numbers of firms, and for different vitamin ...


Ipse Dixit At The I.C.J., Sean D. Murphy Jan 2005

Ipse Dixit At The I.C.J., Sean D. Murphy

GW Law Faculty Publications & Other Works

No abstract provided.