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Articles 1 - 30 of 48
Full-Text Articles in Law
Government Procurement Law Perspectives: Spring 2014, Government Procurement Law Program
Government Procurement Law Perspectives: Spring 2014, Government Procurement Law Program
Government Procurement Law Perspectives
No abstract provided.
Denying The Significance Of Race, Cynthia Lee
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 …
(E)Racing Trayvon Martin, Cynthia Lee
(E)Racing Trayvon Martin, Cynthia Lee
GW Law Faculty Publications & Other Works
In this essay, Cynthia Lee celebrates the 25th anniversary of Critical Race Theory (CRT) by writing about the pitfalls of the ideal of colorblindness. She starts by analyzing Devon Carbado's seminal article on CRT and the Fourth Amendment, (E)Racing the Fourth Amendment. She focuses on Carbado's critique of Justice Sandra Day O'Connor's embrace of colorblindness in Florida v. Bostick, the case in which the Supreme Court modified the test for a seizure of the person. Lee uses Carbado's article as a springboard for critiquing the embrace of colorblindness by legal decision-makers involved in George Zimmerman's 2013 murder trial. Zimmerman …
The European Procurement Directives And The Transatlantic Trade & Investment Partnership (T-Tip): Advancing U.S. - European Trade And Cooperation In Procurement, Christopher R. Yukins
The European Procurement Directives And The Transatlantic Trade & Investment Partnership (T-Tip): Advancing U.S. - European Trade And Cooperation In Procurement, Christopher R. Yukins
GW Law Faculty Publications & Other Works
Regulatory efforts on both sides of the Atlantic, in anti-corruption and procurement, are become more interdependent, as the two systems, U.S. and European, evolve in parallel. That convergence continued as the European Union finalized its new directives on procurement, and the United States and Europe moved forward in negotiating a comprehensive free trade agreement, the Transatlantic Trade and Investment Partnership (T-TIP), which would (among other things) address barriers to trade in procurement. This piece reviews the T-TIP agreement’s potential impact on procurement, in the near and long term. The European T-TIP negotiators are likely to demand greater access to sub-central …
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
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 …
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 …
Emerging Policy And Practice Issues, Steven L. Schooner, David Berteau
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 …
Duty To Rescue? Exploring Legal Analysis Through The Lens Of Photojournalists’ Storytelling Dilemmas, Iselin Magdalene Gambert
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 …
Prizes! Innovating, Risk Shifting, And Avoiding Contracts And Grants, Steven L. Schooner, Nathaniel E. Castellano
Prizes! Innovating, Risk Shifting, And Avoiding Contracts And Grants, Steven L. Schooner, Nathaniel E. Castellano
GW Law Faculty Publications & Other Works
This short piece introduces prizes (or prize contests), which have become the darling of the Obama administration. Public managers increasingly find prizes more attractive than the more conventional and heavily regulated vehicles that they replace, contracts and grants. The paper explains some of the advantages of this increasingly popular approach and signals a cautionary note, particularly to contestants. Unfortunately, the government has not yet provided a straightforward means for contestants to obtain meaningful review if and when disputes arise. Accordingly, the authors suggest that, while shifting risk to the private sector is fair game, contest-sponsoring agencies should respect the private …
Musical Work Copyright For The Era Of Digital Sound Technology: Looking Beyond Composition And Performance, Robert Brauneis
Musical Work Copyright For The Era Of Digital Sound Technology: Looking Beyond Composition And Performance, Robert Brauneis
GW Law Faculty Publications & Other Works
For over 150 years, federal copyright law in the United States reflected and reinforced the model ofmusic as a two-stage art of composition and performance. Copyright protected scores, the stable, visually perceptible result of the deliberative activity of composition. It did not protect performances, theevanescent, unrepeatable, purely aural realizations of scores. Even as protection was extended tomusical sound recordings, copyright law has maintained a strong distinction between composition andperformance. In the last several decades, however, developments in sound technologies and their uses by musicians and listeners have substantially undermined that distinction. Written notation often no longer figures in any stage …
Merger Control Procedures And Institutions: A Comparison Of The Eu And Us Practice, William E. Kovacic
Merger Control Procedures And Institutions: A Comparison Of The Eu And Us Practice, William E. Kovacic
GW Law Faculty Publications & Other Works
The objective of this paper is to discuss and compare the role that different constituencies play in US andEU procedures for merger control. We describe the main constituencies (both internal and external) involved in merger control in both jurisdictions and discuss how a typical merger case would be handled under these procedures. At each stage, we consider how the procedure unfolds, which parties are involved, and how they can affect the procedure. Our discussion reveals a very different ecology. EU andUS procedures differ in terms of their basic design and in terms of the procedures that are naturally associated with …
From Legal Pluralism To Global Legal Pluralism, Paul Schiff Berman
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 …
A Concise Guide To Using Dictionaries From The Founding Era To Determine The Original Meaning Of The Constitution, Gregory E. Maggs
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 …
Inconsistent Jury Verdicts, Stephen A. Saltzburg
Inconsistent Jury Verdicts, Stephen A. Saltzburg
GW Law Faculty Publications & Other Works
This article examines United States v. Moran-Toala, 726 F.3d 334 (2d Cir. 2013), to illustrate what happens when a trial judge explicitly instructs a jury that its verdict need not be consistent.
Proper And Improper Use Of Other Act Evidence, Stephen A. Saltzburg
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).
First Amendment Values For The Internet, Dawn C. Nunziato
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 …
The Beginning Of The End Of Internet Freedom, Dawn C. Nunziato
The Beginning Of The End Of Internet Freedom, Dawn C. Nunziato
GW Law Faculty Publications & Other Works
Although the Internet was initially viewed as a medium for expression in which censorship would be impossible to implement, recent developments suggest exactly the opposite. Countries around the world--democracies as well as dictatorships--have implemented nationwide filtering systems that are changing the shape of Internet freedom. In addition to usual suspects like China, liberal democracies such as the United Kingdom and Australia have taken steps to implement nationwide Internet filtering regimes. In 2013, United Kingdom Prime Minister David Cameron announced a plan to require mandatory “family friendly” default filtering of all Internet access by the end of 2014. While such Internet …
I’M Still Dancing: The Continued Efficacy Of First Amendment Precedent And Values For New-School Regulation, Dawn C. Nunziato
I’M Still Dancing: The Continued Efficacy Of First Amendment Precedent And Values For New-School Regulation, Dawn C. Nunziato
GW Law Faculty Publications & Other Works
This response essay reflects on the meaning of two foundational First Amendment decisions: New York Times Co. v. Sullivan — characterized by Harry Kalven, Jr., as “an occasion for dancing in the streets”— which imposed limits on public officials’ recovery for defamation, and New York Times Co. v. United States, which reaffirmed the central First Amendment principle against prior restraints. Professor Jack Balkin characterizes these decisions as responses to “old-school speech regulation . . . [in which] the state had used penalties and injunctions directed at speakers and publishers in order to control and discipline their speech.” But, Balkin observes, …
Keeping The Internet Free In The Americas, Dawn C. Nunziato
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 …
Litigation Finance And The Problem Of Frivolous Litigation, Michael B. Abramowicz
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 …
§ 9:9 Authenticating Email, Social Media, Web Pages, Text Messages, Instant Messaging, Electronic Signatures, Laird Kirkpatrick
§ 9:9 Authenticating Email, Social Media, Web Pages, Text Messages, Instant Messaging, Electronic Signatures, Laird Kirkpatrick
GW Law Faculty Publications & Other Works
A particularly difficult evidentiary problem facing courts today is the proper standard for the authentication of electronic evidence or social media, such as emails, web pages, text messages, instant messaging and electronic signatures. This article analyzes the court decisions addressing these issues.
Second Amendment: Not Constitutional Dysfunction, But Necessary Safeguard, Robert J. Cottrol
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 …
Comparative Law Study And Analysis Of National Legislation Relating To Crimes Against Humanity And Extraterritorial Jurisdiction, Arturo J. Carrillo, Annalise Nelson
Comparative Law Study And Analysis Of National Legislation Relating To Crimes Against Humanity And Extraterritorial Jurisdiction, Arturo J. Carrillo, Annalise Nelson
GW Law Faculty Publications & Other Works
This report has three main objectives. The first is to conduct a rigorous quantitative survey of national legislation worldwide to determine the extent to which States have prohibited crimes against humanity (CAH) under domestic law. The second is to engage in a limited but illustrative qualitative analysis of CAH laws where they do exist. And finally, for those States identified as having per se CAH legislation, this report seeks to establish the extent to which it is paired with the extraterritorial jurisdiction provisions necessary to make the CAH norms most effective.
Our report concludes that the prevailing panorama of domestic …
Immunity Ratione Personae Of Foreign Government Officials And Other Topics: The Sixty-Fifth Session Of The International Law Commission, Sean D. Murphy
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.
Gifts, Hospitality & The Government Contractor, Jessica Tillipman
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 …
Green Subsidies And The Wto, Steve Charnovitz
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 …
Informing The Debate About Sexual Assault In The Military Services: Is The Department Of Defense Its Own Worst Enemy?, Lisa M. Schenck
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. …
The Failure Of Originalism In Preserving Constitutional Rights To Civil Jury Trial, Renée Lettow Lerner
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, …
Book Review: The Invisible Soldiers: How America Outsourced Our Security By Ann Hagedorn, Steven L. Schooner
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.