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- Abstract http://ssrn.com/abstract=2641141 Revise My Submission Download This Paper Open PDF in Browser | Share | Email Authentication and Hearsay: Which Trumps? Stephen A. Saltzburg George Washington University School of Law 2015 30 Crim. Just. (2015). GWU Law School Public Law Research Paper No. 2015-29 GWU Legal Studies Research Paper No. 2015-29 Abstract: This article addresses the relationship between two federal rules of evidence: Rules 104(a) and 104(b) and which standards a trial judge should apply in admitting hearsay evidence when its authentication is in question. Focusing on United States v. Harvey (1)
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Articles 1 - 30 of 63
Full-Text Articles in Law
Hobby Lobby And The Dubious Enterprise Of Religious Exemptions, Ira C. Lupu
Hobby Lobby And The Dubious Enterprise Of Religious Exemptions, Ira C. Lupu
GW Law Faculty Publications & Other Works
The experience of the past fifty years, culminating in Burwell v. Hobby Lobby Stores, Inc., is grounds for deep skepticism of any sweeping regime of religious exemptions. Part I of this essay locates the problem in the current legal and cultural moment, which includes religious objections to employer-provided contraceptive care for women, and religion-based refusals by wedding vendors and others to facilitate the celebration of same sex marriages. Part II broadens the time frame to analyze the regimes of religious exemption – federal and state, constitutional and statutory -- in which such disputes play out. Such regimes will tend …
Religious Exemptions And The Limited Relevance Of Corporate Identity, Ira C. Lupu, Robert W. Tuttle
Religious Exemptions And The Limited Relevance Of Corporate Identity, Ira C. Lupu, Robert W. Tuttle
GW Law Faculty Publications & Other Works
Corporate religious liberty appears to be on the rise. The Supreme Court’s unanimous decision in Hosanna Tabor v. EEOC (2012) energized sweeping theories about “freedom of the church.” The Court’s more controversial decision in Burwell v Hobby Lobby Stores, Inc. (2014) determined that for-profit entities may be legally entitled to claim a corporate religious character. Speaking in the language of rights, commentators have vigorously debated the foundations and meaning of these decisions.
This chapter argues that these debates are misdirected. The special treatment of religion in American constitutional law does not properly rest on any theory that religious entities …
Berkshire's Disintermediation: Buffett's New Managerial Model, Lawrence A. Cunningham
Berkshire's Disintermediation: Buffett's New Managerial Model, Lawrence A. Cunningham
GW Law Faculty Publications & Other Works
Berkshire Hathaway, among history’s largest and most successful corporations, shuns middlemen; its chairman, the legendary investor Warren Buffett, excoriates financial intermediaries. The acquisitive conglomerate rarely borrows money, retains brokers, or hires consultants. Its governance is lean, using an advisory board and bucking all forms of corporate bureaucracy. Berkshire’s shareholders also minimize the roles of intermediaries like stockbrokers and stock exchanges by trading little and holding for lengthy periods.
By exploring Berkshire’s antipathy to intermediation, this article supports the view that public policy ought to make considerable room for companies to define their own internal business practices and that more companies …
Berkshire Versus Kkr: Intermediary Influence And Competition, Lawrence A. Cunningham
Berkshire Versus Kkr: Intermediary Influence And Competition, Lawrence A. Cunningham
GW Law Faculty Publications & Other Works
Kathryn Judge of Columbia University documents how financial intermediaries persistently impose high fees compared to the value rendered, attributes this to political influence, and suggests countervailing policy strategies, including stoking competition and enhancing disclosure to reduce excessive transaction costs. In this solicited comment, I concur with Judge's findings and prescriptions by adding a paired example: that of Berkshire Hathaway versus Kohlberg Kravis Roberts. In the field of corporate acquisitions, these rivals are opposites, Berkshire shunning intermediaries and generating virtually no transaction costs while KKR feasts on multiple and lavish fees. The contrast reflects broader differences between Berkshire and private equity …
Book Review: Lessons In Censorship: How Schools And Courts Subvert Students’ First Amendment Rights (Catherine J. Ross), Naomi R. Cahn
Book Review: Lessons In Censorship: How Schools And Courts Subvert Students’ First Amendment Rights (Catherine J. Ross), Naomi R. Cahn
GW Law Faculty Publications & Other Works
This book review of Catherine Ross's Lessons in Censorship places issues involving the free speech rights of public school students in the context of family law.
The Return Of Lochner, Thomas Colby, Peter J. Smith
The Return Of Lochner, Thomas Colby, Peter J. Smith
GW Law Faculty Publications & Other Works
For a very long time, it has been an article of faith among liberals and conservatives alike that Lochner v. New York was obviously and irredeemably wrong. Lochner is one of only a few cases that constitute our “anticanon,” universally reviled by the legal community as the “worst of the worst.” Our first claim in this Article is that the orthodoxy in modern conservative legal thought about Lochner is on the verge of changing. We believe that conservatives are ready, once again, to embrace Lochner— although perhaps not in name—by recommitting to some form of robust judicial protection for economic …
The Price Of Paid Prioritization: The International And Domestic Consequences Of The Failure To Protect Net Neutrality In The United States, Arturo J. Carrillo, Dawn C. Nunziato
The Price Of Paid Prioritization: The International And Domestic Consequences Of The Failure To Protect Net Neutrality In The United States, Arturo J. Carrillo, Dawn C. Nunziato
GW Law Faculty Publications & Other Works
This article examines the international trade and human rights obligations of the United States as they relate to net neutrality to determine the extent to which the approach adopted by the Federal Communications Commission (FCC) in 2015 to promote an open Internet complies with those obligations. In March of that year, the FCC adopted new rules to promote and protect an open Internet that, inter alia, reclassified broadband providers as common carriers subject to nondiscrimination obligations and codified strong net neutrality protections. The authors argue that the 2015 FCC Order, contrary to its predecessors, largely meets the requirements of the …
Constitutional Law: A Contemporary Approach, Gregory E. Maggs, Peter J. Smith
Constitutional Law: A Contemporary Approach, Gregory E. Maggs, Peter J. Smith
GW Law Faculty Publications & Other Works
The third edition of the casebook, which is suitable either for a one- or two-semester course, strives to make constitutional law easily teachable and readily accessible for students. The authors have selected the cases very carefully and provided extensive excerpts of the opinions so that students get a good sense of the Court's reasoning. Text boxes call the students' attention to important aspects of each opinion, and the book is filled with introductions, points for discussion, hypotheticals, and executive summaries. The authors present a diversity of views on every subject, and, reflecting some of their own disagreements, the authors have …
Ruth Bader Ginsburg And The Interaction Of Legal Systems, Paul Schiff Berman
Ruth Bader Ginsburg And The Interaction Of Legal Systems, Paul Schiff Berman
GW Law Faculty Publications & Other Works
The idea of legal pluralism is that law must always negotiate situations when multiple communities and legal authorities seek to regulate the same act or actor. These overlapping jurisdictional assertions may occur because of federalism, or because disputes often cross territorial borders, or because of complicated inter-jurisdictional arrangements, as with Indian tribes in the United States. In all of these situations, judges must develop strategies for determining how best to balance the competing claims of multiple communities: does the law of one community triumph, does the law of the other community triumph, or is there some hybrid solution available?
This …
Judge Bork’S Remarkable Adherence To Unremarkable Principles Of National Security Law, Gregory E. Maggs
Judge Bork’S Remarkable Adherence To Unremarkable Principles Of National Security Law, Gregory E. Maggs
GW Law Faculty Publications & Other Works
The late Judge Robert H. Bork is usually remembered as an eminent jurist and scholar in the fields of antitrust law and constitutional law. His judicial opinions and his writings, especially The Antitrust Paradox1 and The Tempting of America,2 are certainly standards in these areas. Judge Bork, however, also deserves acclaim for his contributions to other fields of law. One extremely important subject, in which Judge Bork’s judicial work has received little attention, is the law pertaining to national security and U.S. foreign relations. This essay discusses Judge Bork’s opinions in four important D.C. Circuit cases: Demjanjuk v. Meese,3 Persinger …
An International Legal Framework For Se4all: Human Rights And Sustainable Development Law Imperatives, Robert L. Glicksman
An International Legal Framework For Se4all: Human Rights And Sustainable Development Law Imperatives, Robert L. Glicksman
GW Law Faculty Publications & Other Works
Governments around the world recognize the link between human development and access to safe, secure, and affordable sources of energy. Nevertheless, many people have access to only rudimentary and inadequate energy sources, depriving them of opportunities for economic development and creating serious health risks. Even in countries in which access to energy services is adequate, the provision of those services has both health and environmental effects. In particular, the production of energy using fossil fuels generates greenhouse gases that contribute significantly to climate disruption, which is likely to create disproportionate risks to the same undeveloped nations already suffering from a …
A New Approach To Voir Dire On Racial Bias, Cynthia Lee
A New Approach To Voir Dire On Racial Bias, Cynthia Lee
GW Law Faculty Publications & Other Works
One question that attorneys in racially charged cases face is whether to attempt to conduct voir dire into racial bias. Voir dire is the process of questioning prospective jurors to ensure that those chosen to sit on the jury will be impartial and unbiased. Whether it is a good idea from a trial strategy perspective to voir dire prospective jurors when an attorney believes racial bias may have played a role in the events underlying the case is a question over which reasonable minds can disagree. Perhaps the most common view is that reflected by Albert Alschuler who suggested twenty-five …
Debunking Revisionist Understandings Of Environmental Cooperative Federalism: Collective Action Responses To Air Pollution, Jessica Wentz
Debunking Revisionist Understandings Of Environmental Cooperative Federalism: Collective Action Responses To Air Pollution, Jessica Wentz
GW Law Faculty Publications & Other Works
The federal Clean Air Act initiated Congress's venture into cooperative environmental federalism in 1970. Forty-five years later, misconceptions about the nature of that venture (and similar examples of cooperative federalism under other federal environmental statutes) persist. In particular, some recent judicial decisions characterize environmental cooperative federalism as an equal partnership between the federal Environmental Protection Agency and the states. They also take umbrage at efforts by EPA to override state policies and initiatives that fail to conform to the minimum responsibilities that the statutes impose on the states, characterizing them as unlawful affronts to state sovereignty.
This chapter argues that …
Whither/Wither Alimony?, June Carbone, Naomi R. Cahn
Whither/Wither Alimony?, June Carbone, Naomi R. Cahn
GW Law Faculty Publications & Other Works
Can alimony be saved? Historically, alimony protected women's dependence during marriage. The most fundamental challenge for its continuation therefore rests on reconciling alimony with an era in which the majority of women, including 71% of mothers with children under 18, are in the labor market. This requires reconsideration of the nature of marriage, not just as a partnership ideal, which arguably it has long been, or as a relationship between equals, which has emerged more recently, but as an integrated part of a new economic model. This review of The Marriage Buyout by Cynthia Starnes assesses her justification for the …
First Report Of The Special Rapporteur On Crimes Against Humanity, Sean D. Murphy
First Report Of The Special Rapporteur On Crimes Against Humanity, Sean D. Murphy
GW Law Faculty Publications & Other Works
In the field of international law, three core crimes generally make up the jurisdiction of international criminal tribunals: war crimes; genocide; and crimes against humanity. Only two of these crimes (war crimes and genocide) are the subject of a global treaty that requires States to prevent and punish such conduct and to cooperate among themselves toward those ends. By contrast, there is no such treaty dedicated to preventing and punishing crimes against humanity.
Yet crimes against humanity may be more prevalent than either genocide or war crimes. Such crimes may occur in situations not involving armed conflict and do not …
Food And Condiments For The Twenty-First Century: Business, Science, And Policy, Lewis D. Solomon
Food And Condiments For The Twenty-First Century: Business, Science, And Policy, Lewis D. Solomon
GW Law Faculty Publications & Other Works
We are in the midst of a paradigm shift in the food industry. People are more closely examining the impact of food not only on their health and wellness but also on the environment. Some are also concerned about the relationship between food and animal welfare as well as resource scarcities. Big food conglomerates face competition from upstart rivals. The for-profit companies profiled in this work, Nu-tek Food Science, Lyrical Foods, Hampton Creek, Beyond Meat, Impossible Foods, Modern Meadow, and Rosa Labs, are leading the reinvention of condiments and food. Although picking winners and also-rans represents a difficult endeavor, some …
Someone Must Be Lying, Stephen A. Saltzburg
Someone Must Be Lying, Stephen A. Saltzburg
GW Law Faculty Publications & Other Works
There is no rule that governs all cases when determining whether it's permissible for prosecutors to argue in closing that the jury would have to find that police officers lied in order to find a defendant not guilty. This article examines the issue of the credibility of law enforcement officers in United States v. Ruiz, 710 F.3d 1077 (9th Cir. 2013), United States v. Wilkes, 662 F.3d 524 (9th Cir. 2011), and United States v. Tucker, 641 F.3d 1110 (9th Cir. 2011).
The Financial Industry's Plan For Resolving Failed Megabanks Will Ensure Future Bailouts For Wall Street, Arthur E. Wilmarth Jr.
The Financial Industry's Plan For Resolving Failed Megabanks Will Ensure Future Bailouts For Wall Street, Arthur E. Wilmarth Jr.
GW Law Faculty Publications & Other Works
The high-risk business model of large financial conglomerates (frequently called “universal banks”) was an important cause of the financial crisis. Universal banks rely on cheap funding from deposits and shadow banking liabilities to finance their speculative activities in the capital markets. By combining deposit-taking and short-term borrowing with underwriting, market making, and trading in securities and derivatives, the universal banking model creates a strong likelihood that serious problems occurring in one sector of the financial industry will spread to other sectors. To prevent such contagion, federal regulators have powerful incentives to bail out universal banks and protect all of their …
The Identification Of Customary International Law And Other Topics: The Sixty-Seventh Session Of The International Law Commission, Sean D. Murphy
The Identification Of Customary International Law And Other Topics: The Sixty-Seventh Session Of The International Law Commission, Sean D. Murphy
GW Law Faculty Publications & Other Works
The International Law Commission held its sixty-seventh session in Geneva from May 4 to June 5, and from July 6 to August 7, 2015, under the chairmanship of Narinder Singh (India). Notably, the Commission’s drafting committee completed a full set of sixteen draft conclusions on the topic of “identification of customary international law,” paving the way for those conclusions with commentaries to be approved by the Commission on first reading in 2016.
Additionally, the Commission provisionally adopted with commentaries initial draft guidelines on “protection of the atmosphere” and initial draft articles on “crimes against humanity,” as well as one further …
Next Generation Compliance, David L. Markell, Robert L. Glicksman
Next Generation Compliance, David L. Markell, Robert L. Glicksman
GW Law Faculty Publications & Other Works
Enforcement has long been a central component of the Environmental Protection Agency’s (EPA) administration of the nation’s environmental laws. EPA’s latest Strategic Plan identifies as one of the Agency’s five strategic goals protecting human health and the environment by enforcing laws and assuring compliance. Yet, outside observers and the Agency itself have identified a series of longstanding as well as emerging challenges to effective enforcement.
EPA has responded to these criticisms and challenges by embarking on what it terms a “transformative” enforcement initiative, which it calls Next Generation Compliance (“Next Gen”). Cynthia Giles, Assistant Administrator for OECA, has emphasized that …
The Law Of Intimate Work, Naomi Schoenbaum
The Law Of Intimate Work, Naomi Schoenbaum
GW Law Faculty Publications & Other Works
This Article introduces the concept of intimate work — intimate services provided by paid workers to a range of consumers — and seeks to unify its treatment in law. The concept explains multiple exceptions to work law that have previously been viewed as random and even contradictory. From the daycare worker to the divorce lawyer, the nurse to the hairstylist, intimate work introduces an intimate party — the consumer — into the arm’s-length employer-employee dyad on which work law is premised. This disruption leads to limited enforcement of non-compete agreements, the waiver or imposition of fiduciary duties, and exceptions to …
Consume Or Invest: What Do/Should Agency Leaders Maximize?, William E. Kovacic, David A. Hyman
Consume Or Invest: What Do/Should Agency Leaders Maximize?, William E. Kovacic, David A. Hyman
GW Law Faculty Publications & Other Works
In the regulatory state, agency leaders face a fundamental choice: should they “consume” or should they “invest?” “Consume” means launching high profile cases and rule-making. “Invest” means developing and nurturing the necessary infrastructure for the agency to handle whatever the future may bring. The former brings headlines, while the latter will be completely ignored. Unsurprisingly, consumption is routinely prioritized, and investment is deferred, downgraded, or overlooked entirely. This essay outlines the incentives for agency leadership to behave in this way and explores the resulting agency costs (pun intended). The U.S. Federal Trade Commission’s health care portfolio provides a useful case …
The Import Of History To Corporate Law, Dalia Tsuk Mitchell
The Import Of History To Corporate Law, Dalia Tsuk Mitchell
GW Law Faculty Publications & Other Works
This article explores the ways in which history can be useful in teaching directors’ duties, specifically the duty to monitor. I argue that the Delaware courts’ changing views of directors’ duties reflect a broader shift—from a corporate law grounded in business practice to one anchored in, and ultimately trumped by, modern finance theory. As the article explores the influence of business practice in the mid-century years, law’s emphasis on structure and process in the 1970s and 1980s, and ultimately the triumph of finance over law in the 1990s, it also discusses how the rhetoric of care, business judgment, and good …
Eyes On The Prize, Head In The Sand: Filling The Due Process Vacuum In Federally Administered Contests, Steven L. Schooner, Nathaniel E. Castellano
Eyes On The Prize, Head In The Sand: Filling The Due Process Vacuum In Federally Administered Contests, Steven L. Schooner, Nathaniel E. Castellano
GW Law Faculty Publications & Other Works
The article introduces readers to the recent proliferation of federal prize contests, which sovereigns have employed, albeit sporadically, since the mid-sixteenth century to incentivize breakthrough innovation. In the past decade, the federal government’s use of prize contests has skyrocketed, which makes sense in an era of constrained government resources. Prize contests offer seemingly unlimited potential to break through existing technological barriers at less expense than traditional innovation incentivizing tools such as contracts, grants, and patents. But that upside potential comes at a cost.
For every ebullient prizewinner, there are potentially innumerable “losers,” many of whom feel wronged, exploited, or, at …
Moving Targets: Obergefell, Hobby Lobby, And The Future Of Lgbt Rights, Ira C. Lupu
Moving Targets: Obergefell, Hobby Lobby, And The Future Of Lgbt Rights, Ira C. Lupu
GW Law Faculty Publications & Other Works
The recognition of marriage equality in Obergefell v. Hodges, just one year after Burwell v. Hobby Lobby Stores, Inc. broadened the law of religious freedom, highlights the potential collision course of these movements. This paper is an attempt to navigate the waters where such a collision is most likely. As LGBT rights grow, the choice between generic religious privilege, typified by the Religious Freedom Restoration Act (RFRA), and specific religious accommodations, such as the treatment of religious non- profits in federal law, will define the terms of the conflict. Part I addresses current federal law, and focuses on the extent …
Advocate Yes; Witness No, Stephen A. Saltzburg
Advocate Yes; Witness No, Stephen A. Saltzburg
GW Law Faculty Publications & Other Works
This article examines United States v. Rangel-Guzman, 752 F.3d 1222 (9th Circ. 2014) to illustrate the possibility of a lawyer violating Model Rule of Professional Conduct 3.7 without ever becoming an official witness.
An Overview Of Privacy Law, Daniel J. Solove, Paul M. Schwartz
An Overview Of Privacy Law, Daniel J. Solove, Paul M. Schwartz
GW Law Faculty Publications & Other Works
Chapter 2 of PRIVACY LAW FUNDAMENTALS provides a brief overview of information privacy law – the scope and types of law. The chapter contains an historical timeline of major developments in the law of privacy and data security.
PRIVACY LAW FUNDAMENTALS is a distilled guide to the essential elements of U.S. data privacy law. In an easily-digestible format, the book covers core concepts, key laws, and leading cases.
Professors Daniel Solove and Paul Schwartz clearly and concisely distill all relevant information about privacy law into this short volume. PRIVACY LAW FUNDAMENTALS is designed to be like Strunk and White’s Elements …
New Mechanisms For Punishing Atrocities Committed In Non-International Armed Conflicts, Sean D. Murphy
New Mechanisms For Punishing Atrocities Committed In Non-International Armed Conflicts, Sean D. Murphy
GW Law Faculty Publications & Other Works
Three core crimes have emerged as a part of the jurisdiction of international criminal tribunals: war crimes; genocide; and crimes against humanity. Only two of these crimes (war crimes and genocide) have been addressed through a global treaty that requires States to prevent and punish such conduct and to cooperate among themselves toward those ends. Yet crimes against humanity may be more prevalent than either genocide or war crimes, and are a recurrent feature in non-international armed conflicts (NIACs).
As such, a global convention on prevention, punishment, and inter-State cooperation with respect to crimes against humanity appears to be a …
The Bonding Effect In Cross-Listed Chinese Companies: Is It Real?, Donald C. Clarke
The Bonding Effect In Cross-Listed Chinese Companies: Is It Real?, Donald C. Clarke
GW Law Faculty Publications & Other Works
A common explanation offered for PRC companies’ listing overseas is that they receive a price premium because listing overseas demonstrates a willingness to submit to the more shareholder-protective regulatory regime of the foreign jurisdiction and stock market. This explanation is commonly known as the bonding hypothesis. There is some empirical support for the proposition that listing overseas does indeed bring a price premium, although issues of causality are difficult to sort out. If it is true that investors view an overseas listing of a Chinese firm as something worth paying a premium for, the question remains, however, as to whether …
Coercive Vs. Cooperative Enforcement: Effect Of Enforcement Approach On Environmental Management, Robert L. Glicksman, Dietrich Earnhart
Coercive Vs. Cooperative Enforcement: Effect Of Enforcement Approach On Environmental Management, Robert L. Glicksman, Dietrich Earnhart
GW Law Faculty Publications & Other Works
A spirited debate explores the comparative merits of two different approaches to the enforcement ofregulatory law: the coercive approach, which emphasizes the deterrence of noncompliance throughinflexibly imposed sanctions, and the cooperative approach, which emphasizes the inducement of com-pliance through flexibility and assistance. Both scholarly and policymaking communities are interestedin this topic of enforcement approach within the realms of finance, tax compliance, occupational safety,food and drug safety, consumer product safety, and environmental protection. To inform this debate,our study explores enforcement of environmental protection laws where the debate has been especiallyspirited yet lacking in much empirical evidence. Specifically our study empirically analyzes …