Digital Commons Network^™

What Do The Studies Of Judicial Review Of Agency Actions Mean?, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

In this essay, I discuss the meaning of ten empirical studies of judicial review of agency actions that have been published over the last twenty years. The most robust findings are: a court’s choice among the six deference doctrines courts now use has no effect on the outcome of cases; the ideological preferences of judges and Justices explain about 30% of their votes; members of politically mixed panels indulge their ideological preferences about half as often as do members of politically homogenous panels; and, the D.C. Circuit is consistently less deferential than other circuits. I conclude by endorsing David Zaring’s …

The Past, Present, And Future Of Energy Regulation, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

This essay is a contribution to a symposium at University of Utah. It begins with a summary of the history of energy regulation from 1960 until 2011. It then makes three arguments. First, the essay argues that the US should abandon pursuit of the goal of energy independence and pursue exclusively the goal of global warming mitigation. Second, it argues that the US should replace its present reliance on expensive and ineffective subsidies and mandates to mitigate global warming with a single mechanism to attain that goal – a large carbon tax. Third, the essay recognizes that, while a carbon …

Fourth Amendment Pragmatism, Daniel J. Solove

GW Law Faculty Publications & Other Works

In this essay, Professor Solove argues that the Fourth Amendment reasonable expectation of privacy test should be abandoned. Instead of engaging in a fruitless game of determining whether privacy is invaded, the United States Supreme Court should adopt a more pragmatic approach to the Fourth Amendment and directly face the issue of how to regulate government information gathering. There are two central questions in Fourth Amendment analysis: (1) The Coverage Question - Does the Fourth Amendment provide protection against a particular form of government information gathering? and (2) The Procedure Question - How should the Fourth Amendment regulate this form …

Prosser's Privacy Law: A Mixed Legacy, Daniel J. Solove, Neil M. Richards

GW Law Faculty Publications & Other Works

This Article examines the complex ways in which William Prosser shaped the development of the American law of tort privacy. Although Prosser certainly gave tort privacy an order and legitimacy that it had previously lacked, he also stunted its development in ways that limited its ability to adapt to the problems of the Information Age. His skepticism about privacy, as well as his view that tort privacy lacked conceptual coherence, led him to categorize the law into a set of four narrow categories and strip it of any guiding concept to shape its future development. Prosser’s legacy for tort privacy …

Same-Sex Family Equality And Religious Freedom, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

In the spring of 2009, the legislatures of Connecticut, Maine, New Hampshire, and Vermont became the first in the U.S. to enact laws recognizing the legality of same-sex civil marriage. The legislation in all four states included provisions designed to protect the freedom of clergy and religious communities that do not want to recognize same-sex marriage. The legislation in several of the states also included provisions designed to insulate religious organizations from obligations that might arise from the legalization of same-sex marriage – for example, with respect to adoption or the provision of housing to married couples. Despite academic and …

Reforming Financial Regulation To Address The Too-Big-To-Fail Problem, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

The ongoing financial crisis has revealed fundamental weaknesses in the regulatory systems of the United States, the United Kingdom and other European nations. In particular, publicly-funded bailouts of major banks have confirmed that “too big to fail” (TBTF) subsidies distort economic incentives and encourage excessive risk-taking by large, complex financial institutions (LCFIs). Accordingly, the primary goals of regulatory reform must be (i) to eliminate, or at least greatly reduce, TBTF subsidies and (ii) to force LCFIs to internalize the risks and costs of their activities.

After surveying the causes and consequences of the financial crisis, this article proposes five regulatory …

A Versatile Prism: Assessing Procurement Law Through The Principal-Agent Model, Christopher R. Yukins

GW Law Faculty Publications & Other Works

Over the past several decades, the federal procurement system in the United States has grown remarkably, and now totals over $500 billion annually.

Over that same period, the rules governing federal procurement have been buffeted by broad efforts at reform. At no point, however, have we ever had an overarching theory - a model or prism - through which to assess the procurement system or its reform. Agency theory provides one such theoretical model. Long established in economics and the other social sciences, the principal-agent model (agency theory) provides a model to explain successes (and failures) in organizational structures, and …

Cuomo V. Clearing House: The Supreme Court Responds To The Subprime Financial Crisis And Delivers A Major Victory For The Dual Banking System And Consumer Protection, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

In Cuomo v. Clearing House Ass’n, L.L.C., the United States Supreme Court struck down a regulation issued by the Office of the Comptroller of the Currency (OCC), which barred state officials from filing lawsuits to enforce applicable state laws against national banks. In upholding the New York Attorney General’s authority to seek judicial enforcement of New York’s fair lending laws against national banks, Cuomo revealed a perspective on banking regulation that was significantly different from the Court’s approach only two years earlier in Watters v. Wachovia Bank, N.A. In Watters, the Court upheld another OCC regulation, which preempted the application …

Narrow Banking: An Overdue Reform That Could Solve The Too-Big-To-Fail Problem And Align U.S. And U.K. Regulation Of Financial Conglomerates, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

This article is based on testimony presented on December 7, 2011, before the Subcommittee on Financial Institutions and Consumer Protection of the Senate Committee on Banking, Housing, and Urban Affairs. The article provides an update and extension of my previous work showing that: (1) the U.S., U.K. and other developed nations provided enormous subsidies for “too-big-to-fail” (“TBTF”) financial institutions during the financial crisis, thereby creating dangerous distortions in our financial markets and economies; (2) large financial conglomerates follow a hazardous business model that is riddled with conflicts of interest and prone to speculative risk-taking; (3) the Dodd-Frank Wall Street Reform …

Medicare Meets Mephistopheles: Health Care, Government Spending, And Economic Prosperity, Neil H. Buchanan

GW Law Faculty Publications & Other Works

This essay is an edited version of my remarks during the first panel of the Mississippi College Law Review’s symposium on health care reform, which was held on February 26, 2010, in Jackson, Mississippi. The essay integrates my prepared comments with my responses to comments and questions during the discussion period. I have also added some further thoughts on several of the issues that are relevant to the subject matter, especially in light of the subsequent passage of a major federal health reform bill. These remarks are necessarily brief, and they therefore can include only a hint of the issues …

Social Security, Generational Justice, And Long-Term Deficits, Neil H. Buchanan

GW Law Faculty Publications & Other Works

This paper assesses current methods for evaluating the long-term viability and desirability of government activities, especially Social Security and other big-ticket budget items. I reach four conclusions: (1) There are several simple ways to improve the current debate about fiscal policy by adjusting our crude deficit measures, improvements which ought not to be controversial; (2) separately measuring Social Security's long-term balance is inappropriate and misleading; (3) the methods available to measure very long-term government financing (Fiscal Gaps and their cousins, Generational Accounts) are of very limited value in setting public policy today, principally because there is no reliable baseline of …

The Effects Of The Fiscal Deficit On The Composition Of Us Gdp: An Analysis Of Disaggregated Data, Neil H. Buchanan

GW Law Faculty Publications & Other Works

The impact of the federal budget deficit on the economy is a source of continuing concern, both among macroeconomists and – even more urgently – among political decision makers. The old Keynesian consensus that budget deficits were generally good for the economy, in the sense of making it more prosperous (or, at least, in bringing it out of recessions), has been pushed aside by the fear that the apparently-large deficits that began in the 1980s in the United State have damaged the economy and are impoverishing future generations of Americans. The continuing debate over whether fiscal deficits make us better …

Balancing Rights And Responsibilities: Human Rights Jurisprudence On Regulating The Content Of Speech, Dinah L. Shelton

GW Law Faculty Publications & Other Works

The right to freedom of expression is one of the essential attributes of a democratic society, linked to transparency in government, public participation in decision-making, and each person’s individual self-determination. This paper analyzes the key provisions of human rights instruments that concern the right to freedom of expression. The paper also evaluates the scope of freedom of expression rights by considering U.N. studies and reports and the jurisprudence of human rights bodies. The paper concludes that the law cannot fully resolve the tensions between the free exercise of expression and the protection of other’s rights, but the legal guarantees and …

International Decision: Tatar C. Roumanie, App. No. 67021/01...European Court Of Human Rights, Jan. 27, 2009, Dinah L. Shelton

GW Law Faculty Publications & Other Works

This case note examines Tatar c. Roumanie, App. No. 6702 1/01, at http://www.echr.coe.int., European Court of Human Rights, January 27, 2009. In Tatar c. Roumanie, the applicants claimed that the Romanian authorities’ failure to halt the practice of using sodium cyanide constituted a breach of Article 2 of the European Convention on Human Rights and Fundamental Freedoms. On these facts, the European Court reiterated earlier holdings that pollution can interfere with a person's private and family life by harming his or her well-being. Accordingly, the Court held that the operating conditions laid down by the Romanian authorities had been inadequate …

Eleventh Annual Grotius Lecture Response: Commentary On Achim Steiner's 2009 Grotius Lecture, Dinah L. Shelton

GW Law Faculty Publications & Other Works

This commentary discusses the impact of the 2009 Grotius Lecture delivered by Achim Steiner, Executive Director of the United Nations Environmental Program (“UNEP”). The commentary elaborates on a fundamental lesson of the lecture: law can be a conduit for transformative economic change. The commentary emphasizes the need for international entities such as UNEP to address global environmental crises that result from pollution largely generated by industrial countries. The commentary encourages leaders to consider these environmental challenges as possible threats to human rights.

Equitable Utilization Of The Atmosphere: A Rights-Based Approach To Climate Change, Dinah L. Shelton

GW Law Faculty Publications & Other Works

This paper advocates for a rights-based approach to climate change. I argue that the government of a state may, and arguably, has the duty to assert and defend the rights of its inhabitants, rather than remaining passive and ultimately defending itself for alleged rights-violating acts and omissions. The premise underlying this approach is that governments exist for the purpose of protecting the sovereign rights of the state and the human rights of their inhabitants, past and future. First, the paper examines the rights of permanent sovereignty over natural rights. Second, it considers interstate cases on trans-frontier pollution, including the landmark …

Intergenerational Equity, Dinah L. Shelton

GW Law Faculty Publications & Other Works

This essay analyzes the legal meaning of “intergenerational equity” and evaluates the practical implementation of the concept. The essay begins by considering the meaning of the two terms in the phrase: “intergenerational” and “equity.” It then looks at the various rationales given for concern with this topic and how they link to the topic of solidarity, followed by an overview of some of the main subject areas in which the issue of intergenerational equity arises. It proceeds to assess the status of intergenerational equity in international law and to identify various principles associated with the concept. Finally, it turns to …

Comparative Originalism, David Fontana

GW Law Faculty Publications & Other Works

Jamal Greene has written an important paper examining originalism in other countries. This short response argues that comparing the United States with Canada and Australia (the countries Professor Greene mostly examines) involves comparing quite different countries, because the Canadian and Australian constitutions reorganized preexisting institutions, whereas the United States had more of a nation-creating, revolutionary constitution. Other countries that arose out of more revolutionary events, such as certain post-colonial African and Latin American nations, have also tended to feature originalist arguments. When the nation predates the creation of a constitution, key cultural and political understandings also predate the constitution, thereby …

Gender, Masculinities And Transition In Conflicted Societies, Naomi R. Cahn, Fionnuala D. Ni Aolain

GW Law Faculty Publications & Other Works

This article uses a gender lens to explore how conflict affects men and women differently. It examines issues related to the emergence of certain kinds of “hyper” masculinity in situations of conflict and how such masculinities continue to function in subsequent peace-building attempts. The article argues that a failure to account for and be cognizant of these specific masculinities has a significant effect for women in particular, and, more generally, on the success of the conflict transition process. Finally, we show how using a gender lens could make a difference by considering the specific example of the impact of violent …

Embryo Fundamentalism, Naomi R. Cahn, June Caborne

GW Law Faculty Publications & Other Works

The battle for the future of assisted reproduction technologies (ART) has been joined. The tacit compromise underlying assisted reproduction - no laws are passed that even tangentially sanction embryo destruction and no laws are passed that intrude on the profitability of fertility treatments - may be coming to an end. As use of ART has increased, so have calls for supervision and oversight. In the wake of "Octomom" Nadya Suleman's use of in vitro fertilization (IVF) to give birth to octuplets, the calls to regulate assisted reproduction have become even more pressing. At the same time, religious communities ambivalent about …

Returning Home: Women In Post-Conflict Societies, Naomi R. Cahn, Dina Francesca Haynes, Fionnuala D. Ni Aolain

GW Law Faculty Publications & Other Works

This paper explores the situation of women returning to their homes and communities after their countries have experienced major conflicts. In that context, it assesses the range of barriers and challenges that women face and offers some thinking to addresses and remedy these complex issues. As countries face the transition process, they can begin to measure the conflict’s impact on the population and the civil infrastructure. Not only have people been displaced from their homes, but, typically, health clinics, schools, roads, businesses, and markets have deteriorated substantially. While the focus is on humanitarian aid in the midst of and during …

Transnational Mass Claim Processes (Tmcps) In International Law And Practice, Arturo Carrillo, Jason Palmer

GW Law Faculty Publications & Other Works

This article recognizes a growing overlap in the literature between international mass claims processes (“IMCPS”) and transitional justice claims processes (“TJCPs”), i.e. domestic reparations programs adopted by successor governments in the wake of mass atrocity. This convergence is reflected in a number of recent publications in both fields that promote the comparative analysis of IMCPs and TJCPs, which in turn, leads to the conclusion that the two processes share a number of analogous characteristics. Commentators tend to view these ostensibly shared traits as a natural source of “best practices” or “lessons” transferable between mass claims procedures in the international and …

New Opportunities For Nongovernmental Actors In The International Law Commission, Steve Charnovitz

GW Law Faculty Publications & Other Works

Four years ago, I wrote an essay for the Centennial celebration of the American Journal of International Law on the topic of “Nongovernmental Organizations and International Law.” In the section of that essay where I discussed whether, under international law, states and international organizations have a duty to consult nongovernmental organizations (NGOs), I surveyed some current practices of consultation in international organizations. My invitation to participate in this symposium has presented me an opportunity to revisit those thoughts, to conduct more research, and to update our scholarship on how the ILC processes use input from private actors. My presentation contains …

Addressing Government Failure Through International Financial Law, Steve Charnovitz

GW Law Faculty Publications & Other Works

This article discusses the recent financial crisis and argues that the government’s actions contributed to the collapse as much as market failure did. The article also notes that preventive and cleanup measures need to be instituted and the economy needs to be made more resilient so that it can survive temporary credit crises. These goals can be accomplished by increasing competitiveness, renewing trade liberalization, eliminating subsidies for domestic products, and avoiding demagoguery. Finally, international institutions should play a role in financial regulation; specifically, the international community should some of the WTO and ILO’s techniques. I conclude by noting that effective …

Making Workshops Work (For Everyone): Creating And Capturing A Student-Driven Writing Workshop Series, Iselin Magdalene Gambert, Benjamin James Grillot

GW Law Faculty Publications & Other Works

It's not uncommon for new law students to arrive at law school anxious for support on their legal writing assignments and looking for strategies to improve their time management and exam preparation skills. At the same time, upper-level law students are often eager for opportunities to develop their public speaking, presentation development, and leadership skills. This article presents an overview of the 2009-10 Fall Writing Workshop Series, sponsored by the GW Law Writing Center, which successfully met both sets of goals. The article provides readers with concrete ideas for implementing a similar program at their law schools, and includes ideas …

What's So Funny About Peace, Love, And Understanding? Restorative Justice As A New Paradigm For Domestic Violence Intervention, Laurie S. Kohn

GW Law Faculty Publications & Other Works

This Article explores the viability of an alternative dispute resolution system as an alternative to the civil justice system in the area of domestic violence. It considers the implementation of a system that draws on principles of restorative justice. Such an innovation would complement the current justice system interventions with an additional avenue of recourse that allows for more flexibility and creativity.

Although restorative justice principles have been used extensively in the juvenile justice system, they have been suggested amidst much controversy as a response to intimate partner violence, and have been implemented in only an extremely limited way. The …

Addressing Government Failure Through International Financial Law, Steve Charnovitz

GW Law Faculty Publications & Other Works

This article discusses the recent financial crisis and argues that the government’s actions contributed to the collapse as much as market failure did. The article also notes that preventive and cleanup measures need to be instituted and the economy needs to be made more resilient so that it can survive temporary credit crises. These goals can be accomplished by increasing competitiveness, renewing trade liberalization, eliminating subsidies for domestic products, and avoiding demagoguery. Finally, international institutions should play a role in financial regulation; specifically, the international community should some of the WTO and ILO’s techniques. I conclude by noting that effective …

Individual Rights And Transnational Networks, Francesca Bignami

GW Law Faculty Publications & Other Works

Transnational regulatory networks have become increasingly powerful over the past decades. For public law scholars, one of the most pressing questions raised by transnational networks is whether they respect the constitutional and administrative principles that have been developed within the context of the nation state. Although the focus of recent scholarship has been the democratic accountability of networks tasked with agenda-setting and rule-making powers, certain networks are also responsible for individualized decision-making and carry the risk of undermining liberal rights. Examples include the UN Sanctions Committee, Europol, and the administration of EU customs and agricultural policy. This contribution identifies some …

Compensating Commitments: The Law And Economics Of Commitment Bonds That Compensate For The Possibility Of Forfeiture, Michael B. Abramowicz, Ian Ayers

GW Law Faculty Publications & Other Works

This Article introduces compensating commitment bonds, which make it more affordable for a government, entity, or individual to commit to some course of action. These bonds, like traditional government or corporate bonds, can generate revenue for committing parties. A bond seller makes a commitment and promises to pay a forfeit if the seller fails to meet the bond conditions. The bond buyer pays the seller to be contractually designated as the recipient of any amounts the bond seller forfeits. This approach has potential application in a range of legal situations. Governments and other parties may use such bonds to facilitate …

Healing Healthcare Through Tax Reform, Eleanor Marie Brown

GW Law Faculty Publications & Other Works

An economic crisis, sky-rocketing healthcare costs, and millions of Americans without health insurance combine to bring to the public square not only the possibility of a meaningful debate but the political perfect storm that might unearth entrenched partisans and bring about meaningful healthcare reform. The current taxation of expenditures for healthcare is a complex, unjust, uneconomical, and inefficient system. This article seeks to refute revisionist historians who might argue that healthcare in the workplace had no meaningful presence until World War II and to highlight the reasons for the development of employer-provided healthcare; to explain the fundamental inequities wrought by …