Law Commons^™

Assaultive Words And Constitutional Norms, Catherine J. Ross

GW Law Faculty Publications & Other Works

The tension between the competing demands of the First. Amendment’s guarantee of free expression and the Fourteenth Amendment’s implicit promise of dignity and equality has long been evident in societal debates about identity politics, in academic writing, and in disputes over regulation of campus speech. This article argues that the First Amendment generally protects campus speech that includes hurtful words, even those that verbally assault a target or are seen as perpetuating an environment that demeans or endangers women, minorities and others. Protection of such offensive speech also promotes the proclaimed norms of higher education, which is why so many …

The Holding-Dicta Spectrum, Andrew Michaels

GW Law Faculty Publications & Other Works

The distinction between holding and dictum is often treated under a binary paradigm; either a proposition is binding holding, or unconstraining dictum. But the binary paradigm is too simplistic to adequately model our complex system of precedent. This article suggests an alternative spectrum paradigm where the constraining force of a precedent proposition is inversely correlated with its breadth. This article explains the spectrum approach, compares it with prevailing approaches, and evaluates some cases in light of the spectrum model. The spectrum framework has the potential to facilitate judicial candor and make the concepts of holding and dicta more consistently meaningful.

Risk And Anxiety: A Theory Of Data Breach Harms, Daniel J. Solove, Danielle Citron

GW Law Faculty Publications & Other Works

In lawsuits about data breaches, the issue of harm has confounded courts. Harm is central to whether plaintiffs have standing to sue in federal court and whether their claims are viable. Plaintiffs have argued that data breaches create a risk of future injury from identity theft or fraud and that breaches cause them to experience anxiety about this risk. Courts have been reaching wildly inconsistent conclusions on the issue of harm, with most courts dismissing data breach lawsuits for failure to allege harm. A sound and principled approach to harm has yet to emerge, resulting in a lack of consensus …

Agency Behavior And Discretion On Remand, Robert L. Glicksman, Emily Hammond

GW Law Faculty Publications & Other Works

Despite the prevailing focus of administrative law on judicial review of agency discretion, scholars are increasingly asking what we can learn about agency discretion in the absence of judicial review. Indeed, such work prompts a reexamination of administrative law and our assumptions about agencies’ legitimacy. When a court invalidates an agency action, the agency’s response on remand is often left open to the agency’s discretion. Agencies frequently have significant latitude in whether, how, and when (if ever) to remedy the initial flaw.

What is the extent of agency discretion following a remand, and how do agencies use that discretion? In …

The Trump Administration’S Policy Options In International Procurement, Christopher R. Yukins

GW Law Faculty Publications & Other Works

The year 2016 saw a radical break from the free-market norms that have marked international procurement markets since World War II. In both the United Kingdom, with the Brexit referendum, and in the United States with the election of Donald Trump, major electoral shifts meant that international trade in procurement may well face new barriers. This piece first reviews developments in the United States, including the 2016 U.S. elections and the Trump administration’s approach to international procurement. The piece then discusses some of the Trump administration’s policy options, and concludes by summarizing, in a rough matrix of costs and benefits, …

Civil Procedure And The Ministerial Exception, Peter J. Smith, Robert W. Tuttle

GW Law Faculty Publications & Other Works

In Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, the Court recognized a ministerial exception to the ordinary rules of employer liability. The Court also concluded that the exception operates as an affirmative defense rather than a jurisdictional bar. This conclusion raises quite significant questions about how courts should address the exception in the course of litigation.

We argue that courts should approach these procedural questions in light of the underlying justification for the ministerial exception. The exception reflects a longstanding constitutional limitation on the competence of courts to resolve “strictly and purely ecclesiastical” questions. To conclude …

Originalism And Level Of Generality, Peter J. Smith

GW Law Faculty Publications & Other Works

Even if one concedes that the meaning of the Constitution today is its original meaning, at what level of generality should one seek that meaning? In considering whether bans on same-sex marriage violate the Fourteenth Amendment, for example, should we seek to determine how the framers of the Amendment would have answered that question, or should we instead seek to discern the broad principle — perhaps “equality” or “no caste-like discrimination” — that the Amendment objectively incorporated, even if application of that principle today might produce results that the framers would not have anticipated? The level of generality at which …

Enhancing Patent Damages, Dmitry Karshtedt

GW Law Faculty Publications & Other Works

Many policymakers, judges, and scholars justify patent law on economic-utilitarian grounds. It is therefore unsettling that when it comes to damages for patent infringement in excess of the compensatory baseline, courts have followed an approach that reflects primarily moral, rather than economic, considerations. In order to obtain enhanced damages, the prevailing plaintiff must show — among other things — that the defendant actually knew of the patent-in-suit. This subjective standard stems from pre-industrial tort actions designed to punish egregious interpersonal behaviors such as assault, piracy, libel, and seduction, and to preserve public tranquility. But as the law developed to cover …

Primary Jurisdiction: Another Victim Of Reality, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

In this essay, Professor Pierce describes some of the many ways in which our traditional understanding of administrative law is being contradicted by reality, introduces yet another doctrine that has been overtaken by the new reality, and suggests ways in which teachers and scholars should react to the rapidly changing reality of administrative law.

Third Report On Crimes Against Humanity, Sean D. Murphy

GW Law Faculty Publications & Other Works

In July 2014, the U.N. International Law Commission placed the topic “Crimes against humanity” on its current program of work and appointed a Special Rapporteur. According to the topic proposal, the objective of the Commission is to draft articles for what could become a Convention on the Prevention and Punishment of Crimes against Humanity.

In 2015, based on the Special Rapporteur’s First Report, the Commission provisionally adopted the first four draft articles with commentary. In 2016, based on the Special Rapporteur’s Second Report, the Commission provisionally adopted an addition six draft articles with commentary. In this Third Report, which will …

Comparing The Competition Law Regimes Of The United States And India, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

In this article, Professor Pierce compares the oldest system of competition law—the U.S. system—with one of the youngest systems of competition law—the Indian system. He identifies several strengths and weaknesses of the U.S. system. He then gives the Indian Parliament high marks for creating an institutional environment that has the potential to produce an excellent body of law.

Risky Business: Should The Fda Pay Attention To Pharmaceutical Prices?, David A. Hyman, William E. Kovacic

GW Law Faculty Publications & Other Works

People are angry about drug prices. What role, if any, should the FDA play in addressing this issue? Historically, the FDA’s answer has been “not our problem.” As the quality and safety agency, the FDA has repeatedly refused to get involved in drug pricing matters, even when its actions (and inactions) have contributed to the problem. We examine the circumstances under which the FDA should pay attention to pharmaceutical prices, and discuss the implications of it doing so.

The Road To Repeal Of The Glass-Steagall Act, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

The financial crisis of 2007-2009 caused the most severe global economic downturn since the Great Depression. The recent crisis has generated renewed interest in the Glass-Steagall Banking Act of 1933, which Congress adopted in response to the collapse of the U.S. banking system and the freezing of U.S. capital markets during the Great Depression. Glass-Steagall was designed to stabilize the U.S. financial system by separating commercial banks from the capital markets and by prohibiting nonbanks from accepting deposits.

Since the financial crisis, scholars have debated the question of whether the removal of Glass-Steagall's structural barriers during the 1980s and 1990s …

Impression Products, Inc. V. Lexmark International, Inc.: A Glib Rebuke Of The Federal Circuit, Andrew Michaels

GW Law Faculty Publications & Other Works

While the result of the Supreme Court's decision in Impression Products is defensible, the opinion's lack of sophistication makes the case seem easier than it was, unnecessarily sowing the seeds of potential future confusion.

Crimes Against Humanity And Other Topics: The Sixty-Ninth Session Of The International Law Commission, Sean D. Murphy

GW Law Faculty Publications & Other Works

This essay analyzes the outcome of the sixty-ninth session of the U.N. International Law Commission held in the summer of 2017 in Geneva. The session was the first of a new quinquennium of the Commission, consisting of members who will serve from 2017 until 2021. Notably, the Commission completed on first reading a full set of draft articles with commentary on crimes against humanity. Progress was also made in developing draft guidelines on the provisional application of treaties; draft guidelines on protection of the atmosphere; draft articles on the immunity of state officials from foreign criminal jurisdiction; and draft conclusions …

Feature Comment: The Well-Reasoned Case For Reversing The Outsourcing Trend: A Review Essay Of Jon Michaels’ Constitutional Coup: Privatization's Threat To The American Republic, Steven L. Schooner

GW Law Faculty Publications & Other Works

No abstract provided.

Why The International Exhibitions Bureau Should Choose Minneapolis For Global Expo 2023, Steve Charnovitz

GW Law Faculty Publications & Other Works

In November 2017, the 170 governments in the International Exhibitions Bureau (BIE) will vote for a country to host the 2022/23 specialized expo. The United States strengthened its bid in 2017 by a remarkably rapid bipartisan action by the US Congress and Trump Administration to rejoin the BIE which the United States had quit in 2002. This paper reviews the legislative history of US membership in the BIE treaty going back to 1968 and provides a brief overview of the role of the BIE in supervising world's fairs and expos going back to 1928. The BIE is an unusual treaty …

Situational Ethics And Veganism, Neil H. Buchanan

GW Law Faculty Publications & Other Works

The debate about vegan ethics frequently devolves into attempts by those opposed to veganism to prove that there are situations in which it is morally acceptable to consume animal products. If they can prove that it is acceptable to be non-vegan in one situation, the thinking seems to be that they have proved that it is acceptable never to be a vegan. Thus, because it is not morally objectionable to eat the carcass of an animal who died of natural causes, we are told that it is acceptable to eat animals full stop. That is absurd, because it is equivalent …

A Comparison Of The Cultures And Performance Of A Modern Agency And A Nineteenth-Century Agency, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

In this chapter of a book dedicated to the work of Jerry Mashaw, Professor Pierce compares the culture and performance of a nineteenth century agency with the culture and performance of a modern agency with an analogous mission.

He concludes that the Board of Supervising Inspectors saved thousands of lives and millions of dollars by issuing scores of rules in just a few years that reduced dramatically the harm caused by the largest source of transportation accidents in the nineteenth century—steamship boiler explosions. By contrast, he notes that it took the National Highway Safety Administration (NHTSA) almost twenty years to …

God And State Preambles, Peter J. Smith, Robert W. Tuttle

GW Law Faculty Publications & Other Works

Those who question the permissibility of official acknowledgments of God might be surprised to learn that the preambles of 45 of the 50 state constitutions expressly invoke God. The practice is common in both liberal and conservative states and is equally prevalent in all regions of the country. Virtually all of those preambles give thanks to God, and many also seek God's blessing on the state's endeavors. Yet there has been no detailed assessment of the preambles' history or significance. This paper seeks to remedy that gap.

The preambles complicate the claim that official acknowledgments of God are incompatible with …

Risky Business: Should The Fda Pay Attention To Drug Prices?, David A. Hyman, William E. Kovacic

GW Law Faculty Publications & Other Works

The Food and Drug Administration currently does not monitor drug prices. As FDA leaders note, the agency’s responsibility is for drug safety and efficacy, and besides they do not want to become embroiled in drug pricing controversies. However, monitoring drug pricing can be useful beyond any sort of pricing policy. Prices are information, and changes in drug prices can inform the FDA of supply shortages (which may be due to backlogs in FDA approvals), poor government policies (such as the recent Unapproved Drugs Initiative, which resulted in price increases without much safety gain to the public), and mischief on the …

Informal, Inquisitorial, And Accurate: An Empirical Look At A Problem-Solving Housing Court, Jessica K. Steinberg

GW Law Faculty Publications & Other Works

Substantive justice is often seen as elusive in courts dominated by low-income individuals. Complex court rules, coupled with pervasive lack of counsel, can make it difficult for the traditional adversary process to identify and redress legitimate grievances. This Article takes on the social problem of substandard housing and examines whether inquisitorial procedure has the potential to produce accurate outcomes in a tribunal dominated by the unrepresented.

Relying on in-court observations of nearly 300 hearings, and a longitudinal review of nearly 75 cases, this Article surfaces the regularized procedures utilized by a purported “problem-solving” housing court, and theorizes that the inquisitorial …

Emerging Policy And Practice Issues (2016), Steven L. Schooner, David J. Berteau

GW Law Faculty Publications & Other Works

This paper, presented at the West Government Contracts Year in Review Conference (covering 2016), attempts to identify the key trends and issues in U.S. federal procurement for 2017. Consistent with prior practice, this chapter offers extensive coverage of the federal procurement, grant, and defense spending trends and attempts to predict what lies ahead, particularly with regard to legislative and executive activity (which, this year, was highlighted by the (unexpected) inauguration of the Trump administration). The paper discusses, in addition to data, changes to OFPP and DoD leadership and the likely conclusion of the Defense Department Better Buying Power Initiative, and …

Gender And The Tournament: Reinventing Antidiscrimination Law In An Age Of Inequality, Naomi R. Cahn, June Carbone, Nancy Levit

GW Law Faculty Publications & Other Works

Since the 1970’s, antidiscrimination advocates have approached Title VII as though the impact of the law on minorities and women could be considered in isolation. This article argues that this is a mistake. Instead, Reinventing Antidiscrimination Law attempts to reclaim Title VII’s original approach, which justified efforts to dismantle segregated workplaces as necessary to both eliminate discrimination and promote economic growth. Using that approach, this Article is the first to consider how widespread corporate tournaments and growing gender disparities in the upper echelons of the economy are intrinsically intertwined, and how they undermine the core promises ofantidiscrimination law. The Article …

Identifying Anticompetitive Agreements In The United States And The European Union: Developing A Coherent Antitrust Analytical Framework, William E. Kovacic

GW Law Faculty Publications & Other Works

Commentary in both the US and the EU has repeatedly debated whether, and when, it is more efficient to use “rules” or “standards” to determine the legality of conduct subject to the antitrust laws and how such rules or standards should be formulated. This paper concentrates principally on the question of how this debate impacts on the analyticalframework for identifying infringing agreements in the US and EU. It sets out the view that the question of how agreements are to be analysed under both the US and the EU jurisprudence is unduly opaque. Confusion as to, in particular, the role …

Moore's Potential, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

This article was written as a contribution to the Fordham Law Review Symposium entitled Moore Kinship. It examines the various Supreme Court opinions in Moore v. City of East Cleveland to show how they foreshadow the tension between the growing desire of individuals to define “family” in terms of their own choosing and the state’s power to define what constitutes a legitimate family form and, thus, to decide who is entitled to state support. As the article notes, Moore is a methodologically conservative opinion that celebrates the traditional institution of the family through the vehicle of a grandmother-headed extended family. …

Cooperative Judicial Nominations During The Obama Administration, David Fontana

GW Law Faculty Publications & Other Works

This Essay, written for a symposium hosted by the Wisconsin Law Review on judicial nominations, analyzes the failures of some of the tactics used on judicial nominations during the eight years of the Obama Administration. This Essay argues that the roots of these failures to do more on judicial nominations during the Obama Administration reside in a common tactical error made by political leaders in the Democratic Party: excessive cooperation with political forces that do not manifest the same behavioral patterns of cooperation. In addition to the tactical argument, this Essay has a taxonomical goal. Judicial nominations are a unique …

The Regulatory Budget Debate, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

In this essay, Professor Pierce explains why both the hand wringing by environmental advocates and the cheers of coal miners elicited by the Executive Order in which President Trump ordered EPA to repeal the Clean Power Plan (CPP) were based on poorly supported beliefs about the effects of the CPP. The substitution of natural gas, wind and solar power for coal as a generating fuel that the CPP was intended to produce began long before EPA issued the CPP and will continue long after the CPP is repealed. That substitution was driven largely by changes in the relative prices of …

Heteronormativity In Employment Discrimination Law, Naomi Schoenbaum

GW Law Faculty Publications & Other Works

This symposium Essay responds to the EEOC’s new decision to interpret federal employment discrimination law’s ban on discrimination on the basis of sex to include a ban on discrimination on the basis of sexual orientation. It argues that although the EEOC’s decision does provide cause to celebrate, ongoing heteronormativity in federal employment discrimination law will continue to stand as a barrier to equal employment opportunity for gay workers. First, Title VII provides an exception to the sex discrimination ban in the context of intimate spaces, allowing, for example, only women to be hired to serve as labor and delivery nurses. …

Mapping Gender: Shedding Empirical Light On Family Courts’ Treatment Of Cases Involving Abuse And Alienation, Joan S. Meier, Sean Dickson

GW Law Faculty Publications & Other Works

This article provides an empirical view of family courts' treatment of custody cases involving abuse and/or alienation claims. After a brief literature survey, the article describes the co-authors’ pilot study, which begins empirically mapping family courts’ uses of parental alienation theory in abuse cases. The pilot results provide powerful preliminary empirical validation of the growing number of strong critiques of family court practice in abuse cases.