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2007

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Marriages Of Convenience: International Marriage Brokers, 'Mail-Order Brides,' And Domestic Servitude, Suzanne H. Jackson Jan 2007

Marriages Of Convenience: International Marriage Brokers, 'Mail-Order Brides,' And Domestic Servitude, Suzanne H. Jackson

GW Law Faculty Publications & Other Works

The International Marriage Broker Regulation Act of 2005 (IMBRA) expands federal regulation of the burgeoning "mail-order bride" industry by requiring international matchmaking agencies to conduct minimal criminal background checks on their U.S.-based clients and disclose the results to participating women, obtaining their signed consent before releasing any contact information to male clients. Two federal suits challenging IMBRA complain that it violates equal protection guarantees by exempting not-for-profit and religious matchmaking agencies, and violates First Amendment protections for commercial speech by regulating the agencies' communications with its clients. Defenders of the law's constitutionality accurately but incompletely describe IMBRA's purpose as preventing …

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Campaign Speech And Contextual Analysis, Miriam Galston Jan 2007

Campaign Speech And Contextual Analysis, Miriam Galston

GW Law Faculty Publications & Other Works

Recent developments - such as a wave of FEC enforcement actions, the FEC's publication of its case by case approach to determining political committee status, and the Supreme Court's decision in FEC v. Wisconsin Right to Life - have made it necessary to reconsider the kinds of campaign finance reforms desirable and constitutionally permissible. This Article examines the proposition that, if section 527 groups and groups exempt under section 501 of the Internal Revenue Code are part of a network of commonly managed organizations, then the FEC should decide whether they need to register as political committees under the Federal …

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Evolving Geneva Convention Paradigms In The 'War On Terrorism': Applying The Core Rules To The Release Of Persons Deemed 'Unprivileged Combatants', Sean D. Murphy Jan 2007

Evolving Geneva Convention Paradigms In The 'War On Terrorism': Applying The Core Rules To The Release Of Persons Deemed 'Unprivileged Combatants', Sean D. Murphy

GW Law Faculty Publications & Other Works

The purpose of this essay, written in late 2006, is to take stock of the current application of the Geneva Conventions in the global "war on terrorism," including interpretations recently taken by the U.S. Supreme Court in the Hamdan case. The Geneva Conventions and the laws of war more generally comprise a sophisticated regulatory regime whose rules can and should be closely analyzed by lawyers. Yet, like all law, the inevitable imprecision in the rules presents opportunities for governments to exploit gray areas so as to augment governmental authority, and to avoid sensible interpretations that will protect individuals from overreaching …

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A Concise Guide To The Federalist Papers As A Source Of The Original Meaning Of The United States Constitution, Gregory E. Maggs Jan 2007

A Concise Guide To The Federalist Papers As A Source Of The Original Meaning Of The United States Constitution, Gregory E. Maggs

GW Law Faculty Publications & Other Works

Many lawyers, judges, law clerks, and legal scholars feel unprepared to make or evaluate claims about the original meaning of the Constitution based on the Federalist Papers. The typical law school curriculum acknowledges the importance of the Federalist Papers - usually by assigning Supreme Court cases which cite them - but does not treat the essays in depth. As a result, many law students and graduates still need accessible information about the creation, content, and distribution of the essays, manageable summaries of the theories under which the Federalist Papers might provide evidence of the original meaning, and instruction on possible …

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How The United States Might Justify A Preemptive Strike On A Rogue Nation's Nuclear Weapon Development Facilities Under The U.N. Charter, Gregory E. Maggs Jan 2007

How The United States Might Justify A Preemptive Strike On A Rogue Nation's Nuclear Weapon Development Facilities Under The U.N. Charter, Gregory E. Maggs

GW Law Faculty Publications & Other Works

This essay addresses a legal question: "Under the United Nations Charter, how might the United States justify a preemptive strike on a rogue nation's nuclear weapon development facilities?" The essay answers this question by arguing that the United States would not have to rely on controversial theories like "self-defense in response to an imminent attack" or "anticipatory self-defense." On the contrary, as this essay demonstrates with numerous recent and widely-publicized examples, the nations that the United States most likely would strike, Iran and North Korea, constantly are engaging in conventional armed attacks and other aggression against allies of the United …

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A Complaint About Payment Law Under The U.C.C.: What You See Is Often Not What You Get, Gregory E. Maggs Jan 2007

A Complaint About Payment Law Under The U.C.C.: What You See Is Often Not What You Get, Gregory E. Maggs

GW Law Faculty Publications & Other Works

In this Essay, Professor Maggs observes that many provisions of U.C.C. Articles 3, 4, 4A, and 5 are misleading. Although the provisions express certain rules, these rules often actually do not apply because the parties have waived them, because the parties have no practical way to enforce them, or because they are predicated on unrealistic assumptions. Professor Maggs laments that this discrepancy between what the U.C.C. says and reality may have deceived the state legislatures that voted to enact the U.C.C., that it may impose costs on businesses and consumers, and that it clearly hinders the education of lawyers and …

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A Collective Action Perspective On Ceiling Preemption By Federal Environmental Regulation: The Case Of Global Climate Change, Robert L. Glicksman, Richard E. Levy Jan 2007

A Collective Action Perspective On Ceiling Preemption By Federal Environmental Regulation: The Case Of Global Climate Change, Robert L. Glicksman, Richard E. Levy

GW Law Faculty Publications & Other Works

In an era of regulatory skepticism, proponents of regulation in general and environmental regulation in particular face a number of new political and legal hurdles, particularly at the federal level. Frustrated with federal inaction or weak federal regulation, it is increasingly common for states and local governments to adopt environmental laws that seek to provide greater environmental protection. The critical question is when federal environmental law provides a ceiling, preempting such state regulatory programs. In this article, which is part of a forthcoming symposium on federal preemption in the Northwestern Law Review, Professors Glicksman and Levy develop a framework for …

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Global Climate Change And The Risks To Coastal Areas From Hurricanes And Rising Sea Levels: The Costs Of Doing Nothing, Robert L. Glicksman Jan 2007

Global Climate Change And The Risks To Coastal Areas From Hurricanes And Rising Sea Levels: The Costs Of Doing Nothing, Robert L. Glicksman

GW Law Faculty Publications & Other Works

In the wake of Hurricane Katrina, attention has focused on a pair of threats to low-lying coastal areas. Scientists have begun a debate over the possible impact of global climate change on hurricane intensity. Some scientists take the position that recent increases in hurricane intensity in the North Atlantic are due, at least in part, to increases in sea surface temperatures caused by human-induced global climate change. Others believe that those increases are largely due to natural fluctuations in weather patterns such as the Atlantic Multidecadal Oscillation. There is little debate over a second threat to coastal areas. The broad …

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The Comparative Effectiveness Of Government Interventions On Environmental Performance In The Chemical Industry, Robert L. Glicksman, Dietrich Earnhart Jan 2007

The Comparative Effectiveness Of Government Interventions On Environmental Performance In The Chemical Industry, Robert L. Glicksman, Dietrich Earnhart

GW Law Faculty Publications & Other Works

Effective enforcement is crucial to achieving the objectives of the federal environmental statutes. The federal Environmental Protection Agency (EPA) has recognized the importance of effective enforcement, calling it a critical aspect of environmental governance and committing itself to the maintenance of a "credible deterrent" to regulatory violations. Despite the central role of enforcement to achievement of environmental statutory goals, relatively little is known about why regulated entities either do or do not comply. In particular, empirical studies of environmental enforcement are not plentiful, in part because comprehensive data on compliance and enforcement have been difficult to obtain. Although EPA and …

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Depiction Of The Regulator-Regulated Entity Relationship In The Chemical Industry: Deterrence-Based V. Cooperative Enforcement, Robert L. Glicksman, Dietrich Earnhart Jan 2007

Depiction Of The Regulator-Regulated Entity Relationship In The Chemical Industry: Deterrence-Based V. Cooperative Enforcement, Robert L. Glicksman, Dietrich Earnhart

GW Law Faculty Publications & Other Works

For years, scholars and environmental policymakers have conducted a spirited debate about the comparative merits of two different approaches to enforcement of the nation's environmental laws - the coercive (or deterrence-based) and cooperative approaches. Supporters of the coercive model regard the deterrence of violations as the fundamental purpose of environmental enforcement. These supporters also regard the imposition of sanctions, which make it less costly for regulated entities to comply with their regulatory responsibilities and avoid enforcement than to fail to comply and run the risk of enforcement, as the most effective way for inducing regulated entities to comply with their …

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Acadian Biospeleology: Composition And Ecology Of Cave Fauna Of Nova Scotia And Southern New Brunswick, Canada, Max Moseley Jan 2007

Acadian Biospeleology: Composition And Ecology Of Cave Fauna Of Nova Scotia And Southern New Brunswick, Canada, Max Moseley

International Journal of Speleology

The vertebrate and invertebrate fauna, environment and habitats of caves and disused mines in Nova Scotia and southern New Brunswick are provisionally catalogued and described, based on field collections made over many years. The area was glaciated and the subterranean fauna consists of non-troglobites all of which have arrived and colonised the caves during or following final recession of the Pleistocene glaciers. The statistical composition of the fauna at the higher taxonomic level is similar to that in Ontario, but is less species rich and there are some notable ecological and other differences. Porcupine dung accumulations are an important habitat …

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A Jurisprudence Of Ideology, Robert L. Glicksman, James May Jan 2007

A Jurisprudence Of Ideology, Robert L. Glicksman, James May

GW Law Faculty Publications & Other Works

Chief Justice Rehnquist figures prominently in recent historic environmental case law addressed by the Supreme Court. Although generally critical of federal environmental laws, the skepticism stemmed from an interest in the protection of state rights and protection of private property rights rather than a general challenge to federal regulation. His jurisprudence reflects three “guideposts” to consider environmental concerns: limiting the scope of federal power, protecting state sovereignty from encroachment by the federal government, and protecting the rights of private property owners against intrusions resulting from regulation by government. In limiting the scope of federal power, Rehnquist specifically supported limitations on …

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Eogenetic Karst, Glacioeustatic Cave Pools And Anchialine Environments On Mallorca Island: A Discussion Of Coastal Speleogenesis, Angel Ginés, Joaquín Ginés Jan 2007

Eogenetic Karst, Glacioeustatic Cave Pools And Anchialine Environments On Mallorca Island: A Discussion Of Coastal Speleogenesis, Angel Ginés, Joaquín Ginés

International Journal of Speleology

Coastal karst is characterized by special geomorphologic and hydrodynamic conditions as well as by peculiar sedimentary, geochemical, and biospeleological environments. Generally, the more distinctive karstic features produced near the coastline are strongly influenced by sea-level changes, which generate a broad set of interactions between littoral processes and karst development. The glacioeustatic rises and falls of sea level affected the littoral karst in different ways, namely: vertical and horizontal shifts in the shoreline position, changes in elevation of the local water table, and vertical displacements of the halocline. Most eogenetic karsts have been subjected over long time spans to repeated changes …

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Three Concepts Of The Independent Director, Donald C. Clarke Jan 2007

Three Concepts Of The Independent Director, Donald C. Clarke

GW Law Faculty Publications & Other Works

Despite the surprisingly shaky support in empirical research for the value of independent directors, their desirability seems to be taken for granted in policy-making circles. Yet important elements of the concept of and rationale for independent directors remain curiously obscure and unexamined. As a result, the empirical findings we do have may be misapplied, and judicial gap-filling may be harder than imagined when legislative intent cannot be divined or is contradictory.

This article attempts to unpack the concept broadly understood by the term independent director and to distinguish among its various concrete manifestations. In particular, I discuss the critical differences …

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Emerging Policy And Practice Issues (2006), Steven L. Schooner, Christopher R. Yukins Jan 2007

Emerging Policy And Practice Issues (2006), 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 2006), attempts to identify the key trends and issues for 2007 in U.S. federal procurement. In large part, the paper discusses the Draft Final Report of the Acquisition Advisory Panel (AAP), a blue-ribbon commission mandated by Section 1423 of the Services Acquisition Reform Act (SARA). Proceeding from the simple premise that the private sector does a better job with procurement by planning carefully and employing aggressive competition, we discuss, among other things, the inaccuracies that plague the Federal Procurement Data System; the dramatic post-2000 trend in increased …

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Law And Society Approaches To Cyberspace, Paul Schiff Berman Jan 2007

Law And Society Approaches To Cyberspace, Paul Schiff Berman

GW Law Faculty Publications & Other Works

This is the introductory essay to an edited collection titled Law and Society Approaches to Cyberspace and published by Ashgate Publishing. Accordingly, the essay first considers what qualifies as a law and society approach to any particular subject. Then, I address questions about what it means to study cyberspace, surveying some of the academic literature on the subject and identifying three distinct waves of scholarship about the Internet since the mid 1990s. I also discuss some of the major theoretical fault lines that have emerged during this period. Finally, the essay summarizes each of the contributions to the volume, which …

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A Pluralist Approach To International Law, Paul Schiff Berman Jan 2007

A Pluralist Approach To International Law, Paul Schiff Berman

GW Law Faculty Publications & Other Works

This Essay is a contribution to a recent symposium at Yale Law School asking whether there is a new New Haven School of International Law. The original New Haven School of International Law offered a significant, process-based, rejoinder to the realism and positivism that had dominated international relations theory in the United States since the close of World War II. Whereas international relations realists viewed international law as merely a product of state power relations, and positivists dismissed international law entirely because it lacked both sovereign commands and a rule of recognition, scholars of the New Haven School studied law …

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Global Legal Pluralism, Paul Schiff Berman Jan 2007

Global Legal Pluralism, Paul Schiff Berman

GW Law Faculty Publications & Other Works

This Article grapples with the complexities of law in a world of hybrid legal spaces, where a single act or actor is potentially regulated by multiple legal or quasi-legal regimes. In order to conceptualize this world, I introduce literature on legal pluralism, and I suggest that, following its insights, we need to realize that normative conflict among multiple, overlapping legal systems is unavoidable and might even sometimes be desirable, both as a source of alternative ideas and as a site for discourse among multiple community affiliations. Thus, instead of trying to stifle conflict either through an imposition of sovereigntist, territorially-based, …

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Incrementalism: Eroding The Impediments To A Global Public Procurement Market, Christopher R. Yukins, Steven L. Schooner Jan 2007

Incrementalism: Eroding The Impediments To A Global Public Procurement Market, Christopher R. Yukins, Steven L. Schooner

GW Law Faculty Publications & Other Works

Following decades of international negotiations and agreements, the world's multi-trillion-dollar public procurement market appears to be maturing into a free, open international market. To reach that point, nations must lower a broad array of barriers to trade in procurement. As the U.S. experience demonstrates, purchasing agencies, laboring under the constraints of domestic preferences, may effectively seek to promote free trade. At the same time, a variety of international organizations, from the World Trade Organization to Transparency International, have developed tools and instruments - including model codes and explicit nondiscrimination agreements - that ease barriers to trade in procurement. To accelerate …

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New Legal Fictions, Peter J. Smith Jan 2007

New Legal Fictions, Peter J. Smith

GW Law Faculty Publications & Other Works

There was a time when judges routinely deployed legal fictions, which Lon Fuller famously defined as false statements not intended to deceive, in order to temper the disruptive effect of changes in legal doctrine. In an age of positive law, such classic legal fictions are significantly less common. But they have been replaced by new legal fictions.

In fashioning legal rules, judges rely with surprising frequency on false, debatable, or untested factual premises. At times, of course, such false premises simply reflect judicial ignorance. But there is an increasingly large body of empirical research available to judges, and more often …

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'I'Ve Got Nothing To Hide' And Other Misunderstandings Of Privacy, Daniel J. Solove Jan 2007

'I'Ve Got Nothing To Hide' And Other Misunderstandings Of Privacy, Daniel J. Solove

GW Law Faculty Publications & Other Works

In this short essay, written for a symposium in the San Diego Law Review, Professor Daniel Solove examines the nothing to hide argument. When asked about government surveillance and data mining, many people respond by declaring: "I've got nothing to hide." According to the nothing to hide argument, there is no threat to privacy unless the government uncovers unlawful activity, in which case a person has no legitimate justification to claim that it remain private. The nothing to hide argument and its variants are quite prevalent, and thus are worth addressing. In this essay, Solove critiques the nothing to hide …

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Affect, Values, And Nanotechnology Risk Perceptions: An Experimental Investigation, Donald Braman, Dan M. Kahan, Paul Slovic, John Gastil, Geoffrey L. Cohen Jan 2007

Affect, Values, And Nanotechnology Risk Perceptions: An Experimental Investigation, Donald Braman, Dan M. Kahan, Paul Slovic, John Gastil, Geoffrey L. Cohen

GW Law Faculty Publications & Other Works

Despite knowing little about nanotechnology (so to speak), members of the public readily form opinions on whether its potential risks outweigh its potential benefits. On what basis are they forming their judgments? How are their views likely to evolve as they become exposed to more information about this novel science? We conducted a survey experiment (N = 1,850) to answer these questions. We found that public perceptions of nanotechnology risks, like public perceptions of societal risks generally, are largely affect driven: individuals' visceral reactions to nanotechnology (ones likely based on attitudes toward environmental risks generally) explain more of the variance …

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Culture And Identity-Protective Cognition: Explaining The White Male Effect In Risk Perception, Donald Braman, Dan M. Kahan, John Gastil, Paul Slovic, C.K. Mertz200 Jan 2007

Culture And Identity-Protective Cognition: Explaining The White Male Effect In Risk Perception, Donald Braman, Dan M. Kahan, John Gastil, Paul Slovic, C.K. Mertz200

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: identity-protective cognition. Putting work on the cultural theory of risk together with work on motivated cognition in social psychology suggests 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 cultural identities …

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The Second National Risk And Culture Study: Making Sense Of - And Making Progress In - The American Culture War Of Fact, Donald Braman, Dan M. Kahan, Paul Slovic, John Gastil, Geoffrey L. Cohen Jan 2007

The Second National Risk And Culture Study: Making Sense Of - And Making Progress In - The American Culture War Of Fact, Donald Braman, Dan M. Kahan, Paul Slovic, John Gastil, Geoffrey L. Cohen

GW Law Faculty Publications & Other Works

Cultural Cognition refers to the disposition to conform one's beliefs about societal risks to one's preferences for how society should be organized. Based on surveys and experiments involving some 5,000 Americans, the Second National Risk and Culture Study presents empirical evidence of the effect of this dynamic in generating conflict about global warming, school shootings, domestic terrorism, nanotechnology, and the mandatory vaccination of school-age girls against HPV, among other issues. The Study also presents evidence of risk-communication strategies that counteract cultural cognition. Because nuclear power affirms rather than threatens the identity of persons who hold individualist values, for example, proposing …

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European Versus American Liberty: A Comparative Privacy Analysis Of Anti-Terrorism Data-Mining, Francesca Bignami Jan 2007

European Versus American Liberty: A Comparative Privacy Analysis Of Anti-Terrorism Data-Mining, Francesca Bignami

GW Law Faculty Publications & Other Works

The difference between European and American regulation of marketplace privacy is well-established: information privacy is protected more under European law than American law. Recently, with the revelation of a number of U.S. government, anti-terrorism programs, it has become clear that the transatlantic difference is not limited to the market. Also in the face of government action, Europeans protect information privacy more than Americans. This paper brings to light the legal differences between the two systems by considering the case - real in the United States, hypothetical in Europe - of a spy agency's database of call records, created for the …

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The Uneasy Case For Patent Races Over Auctions, Michael B. Abramowicz Jan 2007

The Uneasy Case For Patent Races Over Auctions, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

In advancing his prospect theory of patents, Edmund Kitch dismissed the possibility of distributing rights to particular inventions through auctions, arguing that the patent system avoids the need for governmental officials to define the boundaries of inventions that have not yet been created. Auctions for patent rights to entire inventive fields, however, might accentuate the benefits of a prospect approach, by allowing for earlier and broader patents. Auction designs that award the patent to the bidder that commits the most money to research and development or that agrees to charge the lowest price, meanwhile, can reduce the costs of the …

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The Hidden Beauty Of The Quadratic Market Scoring Rule: A Uniform Liquidity Market Maker, With Variations, Michael B. Abramowicz Jan 2007

The Hidden Beauty Of The Quadratic Market Scoring Rule: A Uniform Liquidity Market Maker, With Variations, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

The logarithmic market scoring rule has emerged as a standard automated market maker. The approach is particularly useful for combinatorial markets, but this article argues that for a variety of prediction market applications, the quadratic market scoring rule may be more sensible. With that rule, liquidity is uniform across the probability or prediction spectrum. Moreover, the rule can easily be adapted for contexts in which greater liquidity is desired for some portion of the probability or prediction spectrum. For each binary or linear outcome being predicted, two separate markets are used, so that a forecaster can always buy shares in …

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Conflicts Of Interest And Corporate Governance Failures At Universal Banks During The Stock Market Boom Of The 1990s: The Cases Of Enron And Worldcom, Arthur E. Wilmarth Jr. Jan 2007

Conflicts Of Interest And Corporate Governance Failures At Universal Banks During The Stock Market Boom Of The 1990s: The Cases Of Enron And Worldcom, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

The re-entry of commercial banks into the securities business transformed U.S. financial markets during the 1990s. The Gramm-Leach-Bliley Act of 1999 (GLBA) removed most of the legal barriers that had separated commercial and investment banking since 1933. GLBA allows commercial banks to become universal banks by affiliating with securities firms and insurance companies. In large part, GLBA ratified the securities underwriting powers that commercial banks gained during the 1990s, based on a series of orders issued by federal regulators and federal courts.

By 2000, the top ten global underwriters of securities included three U.S. banks, three foreign banks, and four …

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Comment Letter To The U.S. Treasury Department Concerning The Regulatory Structure For Financial Institutions, Arthur E. Wilmarth Jr. Jan 2007

Comment Letter To The U.S. Treasury Department Concerning The Regulatory Structure For Financial Institutions, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

This comment letter was submitted to the U.S. Treasury Department in connection with that Department's review of proposals for changes in the regulatory structure for financial institutions. The comment letter presents the following policy recommendations: (1) the thrift charter should be eliminated, existing thrifts should be required to convert into banks, and the Office of Thrift Supervision should be merged with the Office of the Comptroller of the Currency (OCC); (2) the dual banking system should be preserved and strengthened in order to promote innovation in banking regulation and to support the community bank sector; (3) at least one federal …

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Wal-Mart And The Separation Of Banking And Commerce, Arthur E. Wilmarth Jr. Jan 2007

Wal-Mart And The Separation Of Banking And Commerce, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

During 2005-2006, Wal-Mart, Home Depot, and several other commercial firms applied to the Federal Deposit Insurance Corporation (FDIC) for permission to acquire FDIC-insured industrial loan companies (ILCs). Those applications were opposed by business groups, labor unions, community activists, and members of Congress. In January 2007, the FDIC imposed a one-year moratorium on all acquisitions of ILCs by commercial firms and asked Congress to determine whether such acquisitions should be prohibited.

As the FDIC noted, acquisitions of ILCs by commercial firms raise three important policy issues, which are addressed in this Article. First, commercial ownership of ILCs conflicts with the policy …

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