Law Commons^™

Green Subsidies And The Wto, Steve Charnovitz

GW Law Faculty Publications & Other Works

This paper provides a detailed explanation how the law of the World Trade Organization regulates environmental subsidies with a focus on renewable energy subsidies. The paper begins by discussing the economic justifications for such subsidies and the criticisms of them and then gives examples of different categories of subsidies. Next the paper provides an overview of the relevant WTO rules and caselaw, including the recent Canada-Renewable Energy case. The paper also makes specific recommendations for how WTO law can be improved, and discusses the existing literature discussing reform proposals. The study further finds that because of a lack of clarity …

Contemporary Trusts And Estates - An Experiential Approach, Naomi R. Cahn, Jerome Borison, Susan N. Gary, Paula A. Monopoli

GW Law Faculty Publications & Other Works

In this essay in a special issue dedicated to teaching trusts and estates, the co-authors of Contemporary Trusts & Estates: An Experiential Approach (2d. ed. Aspen 2014) reflect on how the teaching of trusts and estates can integrate policy, practice, doctrine, and centuries of tradition. They describe the genesis of their problem-based casebook and the influence of the Carnegie Report on their choice of pedagogic framework. Each of the co-authors embraced the fundamental principles advocated by the Carnegie Report, which counsels that legal education should integrate "theoretical and practical legal knowledge and professional identity." This essay goes on to outline …

Indiana Journal Of Law And Social Equality, Michael Selmi

GW Law Faculty Publications & Other Works

This essay reviews the Obama Administration’s civil rights record during its first Administration, with a particular focus on theCivil Rights Division of the Department of Justice and the Equal Employment Opportunity Commission (“EEOC”). The review finds that although the Obama Administration has generally been supportive of progressive causes, particularly in the Supreme Court and among issues relating to gay men and lesbians, its enforcement activities have generally been quite limited. On a quantitative basis, the Obama Administration’s civil rights enforcement typically fall at the same or below levels of the prior BushAdministration, and with a few exceptions (mortgage discrimination and …

Second Amendment, Constitutional Dysfunction Or Necessary Safeguard?, Robert J. Cottrol

GW Law Faculty Publications & Other Works

This Essay was delivered at the Boston University School of Law Symposium titled “America’s Political Dysfunction: Constitutional Connections, Causes, and Cures.” The Essay challenges the assumption that the Second Amendment historically has provided a barrier to a desirable policy result: radical gun control or gun prohibition. It also challenges the assumption that such a policy is indeed desirable. The Essay traces the history of judicial engagement with the Second Amendment, including the Supreme Court’s most recent pronouncement recognizing the right to bear arms as an individual right in Heller and McDonald, and lower federal courts’ subsequent application of this right. …

Court-Agency Dialogue: Article Iii's Dual Nature And The Boundaries Of Reviewability, Emily Hammond

GW Law Faculty Publications & Other Works

Courts reviewing agency actions frequently offer more than a positive analysis of the agencies decisions. They might engage in advice-giving, for example, or emper the remedy as a way of modulating the impact of review. These actions can be used in a dialogic way, to provide normative signals to agencies. Yet because courts must judge agency actions only on the grounds provided by the agency at the time of the agency’s decision — and must ordinarily remand actions that fail to meet substantive standards of review — these normative signals require a delicate touch so as to avoid judicially imposed …

Litigation Finance And The Problem Of Frivolous Litigation, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

Litigation finance companies have some incentives to screen plaintiffs applying for financing based on the strength of their claims, but a company may still have incentives to provide financing when the probability that a plaintiff would prevail at litigation is low. The result is that litigation finance may facilitate both meritorious and nonmeritorious claims. This Article argues that fee limitation rules for
litigation finance companies can improve their incentives to select only relatively high probability cases, thus enhancing the normative case for states to enact legal reforms allowing litigation finance. A simple version of the rule, which will work if …

The People's Justice?, David Fontana

GW Law Faculty Publications & Other Works

Over the past few decades, the liberal Justices on the Supreme Court have made their most notable extrajudicial communications about the Constitution in academic venues discussing academic issues. This has limited their appeal to broader audiences. In this Essay -- written for a symposium at Yale Law School on Justice Sotomayor's first five years on the Court -- David Fontana explores the distinctive path that Justice Sotomayor has pursued. Justice Sotomayor has spoken to academic audiences, as past liberal Justices have. What is most notable about JusticeSotomayor, though, is that she has also appeared in locations and addressed issues that …

Proper And Improper Use Of Other Act Evidence, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

This article examines a case, United States v. Richards, 719 F.3d 746 (7th Cir. 2013), to illustrate how a prosecutor succeeded in having other act evidence admitted, obtained a conviction, and lost it on appeal. The appellate court ruled that the prosecutor erred in making a propensity argument in violation of Federal Rule of Evidence 404(b).

Keeping The Internet Free In The Americas, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

To preserve and protect the Internet as a forum for the uninhibited, robust, and wide-open exchange of ideas and information in the Americas, governments must take active steps to facilitate such free speech values. The relationship between governments and Internet service providers is of pre-eminent importance in this regard, as ISPs are in the position to be the facilitators of the free flow of information and ideas. On the one hand, ISPs should not be shackled with intermediary liability for hosting harmful content. On the other hand, ISPs should not be granted the discretion to restrict communications flowing through their …

In The Civic Republic: Crime, The Inner City, And The Democracy Of Arms—Being A Disquisition On The Revival Of The Militia At Large, Robert J. Cottrol, Raymond T. Diamond

GW Law Faculty Publications & Other Works

This Article examines the modern utility of the Second Amendment’s guarantee of “the right to keep and bear arms” in light of the phenomenon of modern crime, particularly black-on-black violence in urban America. Although many advocates of gun control have argued that crime in modern cities is a reason for modifying or severely truncating the right to have arms, the Authors argue that the right to have arms and the Second Amendment’s notion of a universal militia can be the basis of a new partnership between police and citizens in urban America. This new partnership can, if properly developed, be …

A Two-Tiered System Of Regulation Is Needed To Preserve The Viability Of Community Banks And Reduce The Risks Of Megabanks, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

The financial crisis of 2007-2009 and its aftermath have accelerated a consolidation trend that has transformed the U.S. banking system during the past three decades. During that period, the number of community banks and their share of the banking industry’s assets have fallen by more than half, while the largest banks have captured much of the industry’s assets. In responding to the financial crisis, the federal government encouraged further consolidation by adopting extraordinary assistance programs and forbearance measures designed to ensure the survival of the biggest institutions. In contrast, federal officials gave little help to community banks and subjected them …

A Concise Guide To Using Dictionaries From The Founding Era To Determine The Original Meaning Of The Constitution, Gregory E. Maggs

GW Law Faculty Publications & Other Works

This Article explains how dictionaries published in the Founding Era may provide evidence of the original meaning of the Constitution. In addition, the Article identifies and discusses six potential problems with relying on definitions from these dictionaries, and cautions that these potential problems must be considered when using Founding Era dictionaries either to make claims about the Constitution’s original meaning or to evaluate claims about original meaning made by others. Finally, the Article includes an Appendix describing nine English language dictionaries and four legal dictionaries from the Founding Era that the Supreme Court has cited in constitutional cases, and indicates …

Immunity Ratione Personae Of Foreign Government Officials And Other Topics: The Sixty-Fifth Session Of The International Law Commission, Sean D. Murphy

GW Law Faculty Publications & Other Works

The International Law Commission held its sixty-fifth session in Geneva from May 6 to June 7 and from July 8 to August 9, 2013. The Commission devoted most of the sixty-fifth session to discussing three topics: immunity of state officials from foreign criminal jurisdiction; subsequent agreements and subsequent practice in relation to the interpretation of treaties; and protection of persons in the event of disasters. Notably, the Commission adopted three draft articles and commentary identifying three senior governmental officials as entitled to immunity ratione personae from foreign criminal jurisdiction – heads of state, heads of government, and foreign ministers – …

Table Of Mimetic Influences Related To Steve Charnovitz, “What The World Trade Organization Learned From The Ilo,” In Adelle Blackett & Anne Trebilcock Eds., Research Handbook On Transnational Labour Law (Edward Elgar, Forthcoming 2015), Steve Charnovitz

GW Law Faculty Publications & Other Works

This table shows how the features of the ILO complaint procedures originating in 1919 became a model for the dispute settlement procedures written into the Charter of the International Trade Organization (ITO) in 1948 and the Dispute Settlement Understanding of the World Trade Organization.

Why Who Does What Matters: Governmental Design, Agency Performance, The Cfpb And Ppaca, William E. Kovacic

GW Law Faculty Publications & Other Works

How should the federal government be organized – and who (i.e., which departments, agencies, bureaus, and commissions) should do what? The issue is not new: President James Madison addressedgovernmental organization in his 1812 State of the Union Address, and in the last century, it is the rare President that does not propose to reorganize some part of the federal government. Indeed, on numerous occasions during the past century, virtually every part of the federal government has been repeatedly reorganized and reconfigured. In previous work, we examined the dynamics that influencethe assignment of regulatory duties to an agency, how those dynamics …

The Failure Of Originalism In Preserving Constitutional Rights To Civil Jury Trial, Renée Lettow Lerner

GW Law Faculty Publications & Other Works

The Federal Bill of Rights and state constitutions rely heavily on procedural protections, especially jury rights. Supporters of these rights at the founding praised the jury in extravagant terms, and many members of the legal profession continue to do so today. Yet civil and criminal jury trials are vanishing in the United States. The disappearance of the civil jury presents a puzzle because the Seventh Amendment and state constitutional rights require that civil jury trial be “preserved” or “remain inviolate.”

Scholarship on the history of constitutional rights to civil jury trial has tended to focus exclusively on the Seventh Amendment, …

Look Up And Around: Musings On Mentors, Role Models, And Professionalism, Steven L. Schooner

GW Law Faculty Publications & Other Works

In response to NCMA's request that its Board of Advisors explain how we ended up as leaders in contract management, this article offers a rather simple over-arching suggestion for successful professionals andfuture leaders: look up and around. The article encourages readers to identify mentors, embrace the strengths of their role models, and open themselves up to learn from others, evolve, and grow. The article discusses, among other things, education, networking, professional development (and, of course, writing),and the power of optimism.

From Legal Pluralism To Global Legal Pluralism, Paul Schiff Berman

GW Law Faculty Publications & Other Works

Legal pluralists have long recognized that societies consist of multiple overlapping normative communities. These communities are sometimes state-based but sometimes not, and they are sometimes formal, official, and governmental, but again sometimes they are not. Scholars studying interactions among these multiple communities have often used the term “legal pluralism” to describe the inevitable intermingling of these normative systems.

In the past decade or so, a new application of pluralist insights has emerged in the international and transnational realm. This new legal pluralism research was born in the decades following the collapse of the bi-polar Cold War order in 1989. During …

Two Myths About The Alien Tort Statute, Bradford R. Clark, Anthony J. Bellia Jr.

GW Law Faculty Publications & Other Works

In Kiobel v. Royal Dutch Petroleum Co., the Supreme Court applied the presumption against extraterritorial application of U.S. law to hold that the Alien Tort Statute (ATS) did not encompass a claim between aliens for misconduct that occurred in another nation. Without much elaboration, the Court stated that the ATS only encompasses claims that “touch and concern the territory of the United States...with sufficient force to displace the presumption.” As it did in Sosa v. Alvarez-Machain, the Kiobel Court purported to rest its decision on the original public meaning of the ATS when enacted in 1789. The Court, however, misperceived …

Review Essay: Reading The Dream Machine: The Untold Story Of The Notorious V-22 Osprey, By Richard Whittle, In Light Of The Defense Acquisition Performance Study, Steven L. Schooner, Nathaniel E. Castellano

GW Law Faculty Publications & Other Works

This review commends The Dream Machine to a broad range of readers, including public contracts attorneys, acquisition policy officials, contracts professionals, program managers, government procurement law students, as well as consumers of military history. It’s a remarkable story told with style. The review juxtapose some aspects of the author’s exhaustive case study of this seemingly problematic program against the Defense Department’s nascent effort to assess the performance of the Defense Acquisition System. We make no secret of our belief that DoD’s acquisition performance assessment has the potential to become one of the most significant recent developments in defense acquisition. Among …

Reading Transcripts, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

This article examines the reading of transcribed chat-room conversations to jurors in United States v. Tragas, 727 F.3d 610 (6th Cir. 2013), and whether some reading approaches utilized by the prosecutor were impermissible theatrical performance, improper summary, or improper vouching.

First Amendment Values For The Internet, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

In May 2014, the Federal Communications Commission (FCC), on the ropes from two adverse D.C. Circuit decisions, proposed the latest in a series of regulations of broadband providers--the entities that serve as the gatekeepers for all content, applications, and services on the Internet. While in recent years the FCC has sought to regulate broadband providers to impose on them the duty not to discriminate against any of the traffic flowing through their pipes, in these latest Proposed Rules--in response to the recent D.C. Circuit decision Verizon v. FCC--the FCC has sought to enable broadband providers to discriminate in favor …

Denying The Significance Of Race, Cynthia Lee

GW Law Faculty Publications & Other Works

In this book chapter, published in TRAYVON MARTIN, RACE, AND AMERICAN JUSTICE: WRITING WRONG (Sense Publishers 2014), Cynthia Lee analyzes the George Zimmerman trial from a critical race perspective. She analyzes why all the major legal decision makers associated with the Trayvon Martin case (judge, prosecution and defense team) were so eager to deny the significance of race. She posits that they either sincerely believed the case had nothing to do with race or thought it improper or strategically disadvantageous to acknowledge that race was relevant. The judge wanted to run a colorblind trial. The defense did not want the …

Second Amendment: Not Constitutional Dysfunction, But Necessary Safeguard, Robert J. Cottrol

GW Law Faculty Publications & Other Works

When Jim Fleming asked me to participate in this Symposium, and more specifically to be part of the Second Amendment panel, I must confess that I was a bit puzzled. There are many parts of our political and constitutional system that are arguably dysfunctional, meaning that our late-eighteenth century Constitution prevents the achievement of policy results that are desirable in our early-twenty-first century present. I do not see, however, the Second Amendment as one of those constitutional features. As a result, this Essay challenges two assumptions: first, that the Second Amendment historically has provided much of a barrier to a …

Emerging Policy And Practice Issues, Steven L. Schooner, David Berteau

GW Law Faculty Publications & Other Works

This paper, presented at the West Government Contracts Year in Review Conference (covering 2013), attempts to identify the key trends and issues in U.S. federal procurement for 2013. Consistent with prior practice, this chapter offers extensive coverage of the federal procurement spending trend and attempts to predict what lies ahead. Budgetary and financial insecurity were less significant last year, but there is no question that the spending reduction represents a meaningful change in the long-term trend. More broadly, the paper discusses agency purchasing data (particularly at the Defense Department), grants spending and major changes in uniform guidance, the continued Defense …

Gifts, Hospitality & The Government Contractor, Jessica Tillipman

GW Law Faculty Publications & Other Works

The government procurement process demands the highest commitment to ethical and unbiased conduct. To ensure that the individuals involved in the procurement process adhere to these standards, government entities in nearly all jurisdictions around the world have enacted codes of conduct, ethical restrictions, and anti-corruption laws designed to protect the integrity of government and ensure that government officials act impartially and do not give preferential treatment to any private organization or individual. To further these goals, most jurisdictions have enacted restrictions on the gifts and hospitality that government officials may accept from individuals and organizations that sell goods and services …

Duty To Rescue? Exploring Legal Analysis Through The Lens Of Photojournalists’ Storytelling Dilemmas, Iselin Magdalene Gambert

GW Law Faculty Publications & Other Works

In depicting scenes of tragedy, what happens when photojournalists become the story? Do photojournalists have a duty to rescue those they photograph? Should they? This article will use a series of iconic images – and the stories of the photojournalists behind the camera – to illustrate how exploring these questions can be a provocative vehicle through which to engage new law students in legal writing and analysis. The article focuses on an exercise that centers around a fictional “Duty to Rescue” statute modeled after European statutes of the same kind. The exercise is anchored by four images – three still …

Informing The Debate About Sexual Assault In The Military Services: Is The Department Of Defense Its Own Worst Enemy?, Lisa M. Schenck

GW Law Faculty Publications & Other Works

In 2013, the Department of Defense (DoD) published its Annual Report on Sexual Assault in the Military Fiscal Year (FY) 2012, reflecting an increase in the number of sexual assaults on military personnel (extrapolated from survey responses) from 19,000 in FY 2011 to 26,000 in FY 2012. The report also provided that in FY 2012, 302 sexual assault courts-martial occurred with only 238 military personnel convicted of sexual assaults committed on military victims, resulting in an alleged conviction rate of less than 1%. Using inflammatory language and misleading statistics, some attacked the prosecution and conviction rates in the military services. …

Sex Offenses Under Military Law: Will The Recent Changes In The Uniform Code Of Military Justice (Ucmj) Re-Traumatize Sexual Assault Survivors In The Courtroom?, Lisa M. Schenck

GW Law Faculty Publications & Other Works

In 2013, the President, Secretary of Defense, and members of Congress responded with shock and outrage to perceptions of increased sex assaults committed by military personnel upon other military personnel. Politicians are considering a variety of changes to substantive and procedural criminal law to make prosecution of such offenses more effective. This Article evaluates substantive military criminal law, UCMJ art. 120, 10 U.S.C. § 920, and Military Rules of Evidence 404(a) and 405(c). Drawing on lessons learned from state and federal laws, the Article then makes recommendations regarding statutory changes in military criminal sexual assault and procedural statutes. Specifically, the …

Book Review: The Invisible Soldiers: How America Outsourced Our Security By Ann Hagedorn, Steven L. Schooner

GW Law Faculty Publications & Other Works

This review discusses Ann Hagedorn's book, which addresses the post-millennial proliferation of arms-bearing contractors that has roiled the human rights community and catalyzed a global conversation about the nature and future of modern warfare. Hagedorn’s perspective and insights on arms bearing contractors, democracies, and empires—intensely personal, yet thoughtfully cognizant of policy, political theory, and philosophy—should interest readers new to the field, as well as those well versed in the issues. Outsourcing the use of force is sufficiently important to the future of democratic states that this book—as well as the growing corpus of literature it adds to—merits serious contemplation.