Law Commons^™

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.

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 …

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 …

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. …

Awareness As A First Step Toward Overcoming Implicit Bias, Cynthia Lee

GW Law Faculty Publications & Other Works

In this book chapter, Cynthia Lee explains that raising awareness of implicit bias is a necessary first step toward eliminating such bias. Lee discusses various ways legal actors can raise awareness about implicit bias, including implicit bias trainings and jury instructions attempting to educate jurors about implicit bias. She concludes that making racial bias (or other types of bias) salient is probably the most effective way to raise awareness of implicit bias in the courtroom setting and discusses the social science literature that supports this conclusion. In light of some studies suggesting that making bias salient may backfire, she suggests …

Properly Funding The Copyright Office: The Case For Significantly Differentiated Fees, Robert Brauneis

GW Law Faculty Publications & Other Works

The United States Copyright Office performs a variety of functions crucial to the copyright system. Through its core registration and recordation functions, it provides critical information about the authorship, ownership, and copyright status of millions of works of authorship created over the last century; it also advises Congress, other federal agencies, and the courts on copyright law; conducts studies on various aspects of copyright law; participates in international meetings; produces educational programs and publications; and engages in many other activities relating to the administration of copyright law. However, the Copyright Office is seriously underfunded, compromising all of its functions. The …

How Justice Thomas Determines The Original Meaning Of Article Ii Of The Constitution, Gregory E. Maggs

GW Law Faculty Publications & Other Works

This paper was presented at a panel on Justice Thomas and Article II at the Yale Federalist Society’s conference, "Celebrating Justice Thomas: 25 Years on the Supreme Court." It addresses the question: "How does Justice Thomas determine the original meaning of Article II of the U.S. Constitution?" In answering this question, I make three observations based on opinions authored or joined by Justice Thomas. First, Justice Thomas seems much more inclined to theorize about executive power than other aspects of constitutional law. Second, Justice Thomas routinely cites seven key sources of original meaning in his decisions on executive power. Third, …

Kagan's Atlantic Crossing: Adversarial Legalism, Eurolegalism, And Cooperative Legalism, Francesca Bignami, R. Daniel Kelemen

GW Law Faculty Publications & Other Works

In this contribution to Varieties of Legal Order, a book inspired by Robert Kagan’s scholarship, we review the debate on the spread of American “adversarial legalism” to Europe. In the 1990s, Kagan developed the concept of adversarial legalism to capture the distinctive litigiousness of the American regulatory system, and asked whether it might take hold in Europe. In our research that followed, we put forward different answers. R. Daniel Kelemen concluded that a legal style akin to adversarial legalism--one which he eventually termed Eurolegalism—was in fact spreading across the European Union. Drawing on her case study of the data …

Jane The Virgin And Other Stories Of Unintentional Parenthood, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

In this article, we contrast the roles of intent, function, biology and marriage in establishing legal parenthood, focusing on differences between elite and non-elite reproduction. Central to these differences are the distinctions between intent at the time of conception and birth of a child versus the assumption of parental roles that occurs after birth, and between functional roles that correspond to formal agreements or institutions and those which arise through less formal arrangements.

LGBT families have used the concept of intent, as it originated in ART cases, to argue for recognition of families of choice, without either biological ties or …

A Comparative View Of Debarment And Suspension Of Contractors In Brazil And In The Usa, Christopher R. Yukins, Cristiana Fortini Silva, Mariana Avelar

GW Law Faculty Publications & Other Works

This paper analyzes the main aspects of procurement-related suspension and debarment in U.S. law (in the federal sphere) and its parallel institutions in Brazilian law, focusing on temporary suspension from participation in tenders and ineligibility to compete for administrative contracts; full debarment; and legal impediments to participating in tenders and competing for administrative contracts.

Federal Decentralization, David Fontana

GW Law Faculty Publications & Other Works

Constitutional law relies on the diffusion of powers among different institutions to ensure that no one person or faction controls power. Federalism and the separation of powers have been presented as the primary institutional arrangements generating this diffusion. Scholars and jurists alike, though, have largely neglected to consider another form of diffusion: federal decentralization. Federal power cannot be appropriately diffused if it is geographically concentrated in those in a single place. Federal decentralization ensures that federal officials in Washington and in places distant and therefore different from Washington compete with and constrain one another. This Article identifies and evaluates federal …

Introduction, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

This is an introduction to a symposium issue that brings together two different sets of paper. The first set of papers were written in honor of Catharine A. MacKinnon, “Legal Feminism: Looking Back, Looking Forward.;” The second set of papers are drawn from a conference on “The Family-Inequality Debate: A Workshop on Coercion, Class, and Paternal Participation."

The Mystery Of Unanimity In Hosanna-Tabor Evangelical Lutheran Church & School V. Eeoc, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (2012), the Supreme Court held that the First Amendment supports a “ministerial exception” defense in anti-discrimination suits by clergy against their institutional religious employers. In advance of the decision, the outcome seemed unpredictable, and the Court’s unanimity arrived as a shock.

This paper illuminates the result, reasoning, and unanimity in Hosanna-Tabor. We explain how Hosanna-Tabor stands in a long line of decisions, grounded in both the Establishment Clause and the Free Exercise Clause, that prohibit state adjudication of “strictly and purely ecclesiastical" questions.

Part I examines why unanimity on the Supreme …

Management Of Federally Owned Grasslands In The Climate Change Era, Robert L. Glicksman

GW Law Faculty Publications & Other Works

The federal government owns and manages substantial tracts of grasslands, which provide ecosystem services worth trillions of dollars. These include seed dispersal, mitigation of droughts and floods, nutrient cycling, control of pests and disease-carrying organisms, maintenance of biodiversity and wildlife habitat, soil preservation, climate stabilization, watershed and water body protection, pollination, carbon sequestration, and recreational opportunities. Like most ecosystem types found on federal lands, grasslands ecosystems are vulnerable to ongoing and predicted changes in climate.

The land management agencies that administer federal grasslands face novel management challenges that require development of climate change adaptation strategies, some of which they have …

A Concise Guide To The Articles Of Confederation As A Source For Determining The Original Meaning Of The Constitution, Gregory E. Maggs

GW Law Faculty Publications & Other Works

Judges and scholars often refer to the Articles of Confederation when making claims about the original meaning of the United States Constitution. To help readers understand and evaluate such claims, this piece describes the formation and content of the Articles of Confederation and explains four ways in which the Articles may provide evidence of the original meaning of the Constitution. The two appendices to this piece contain an annotated copy of the Articles of confederation and a table linking provisions of the Constitution to their antecedents in the Articles.

Kiobel And Extraterritoriality: Here, (Not) There, (Not Even) Everywhere, Edward T. Swaine

GW Law Faculty Publications & Other Works

The Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co. was relentlessly, and unexpectedly, local in character. Notwithstanding the global outlook suggested by the Alien Tort Statute (ATS), which governs civil actions by “an alien” for torts contrary to “the law of nations or a treaty of the United States,” the Court invoked the presumption against extraterritoriality to limit the statute’s reach.

This Article puts a heavy emphasis on territoriality —not, it should be stressed, as a matter of normative preference, but purely as a reflection of the Court’s recent cases. It is accordingly inconsistent with some of the …

The Evolution Of Global Legal Pluralism, Paul Schiff Berman

GW Law Faculty Publications & Other Works

Global Legal Pluralism is now recognized as an entrenched reality of the international and transnational legal order. Indeed, wherever one looks, there is conflict among multiple legal regimes. Some of these regimes are state-based, some are built and maintained by non-state actors, some fall within the purview of local authorities and jurisdictional entities, and some involve international courts, tribunals, arbitral bodies, and regulatory organizations.

It has been approximately 20 years since scholars first began pushing the insights of legal pluralism into the transnational and international arena. During those two decades, a rich body of work has established pluralism as a …

A Modest Proposal? Regulating Customer Discrimination Through The Firm, Naomi Schoenbaum

GW Law Faculty Publications & Other Works

Antidiscrimination law appears to be of two minds. The law aggressively polices discrimination in some realms, while leaving other realms to be governed by the preferences of their participants. In their essay, Professors Katharine Bartlett and Mitu Gulati suggest recalibrating the boundaries of this area of law so that it covers discrimination in an area that the law now leaves largely up to the realm of personal preference: discrimination by customers. While Bartlett and Gulati consider a direct ban on discrimination by customers, they reject this approach in favor of regulating firms. They describe this proposal as “modest.”

This Response …

What’S Right About Knowing?, Naomi R. Cahn

GW Law Faculty Publications & Other Works

In Sperm donor anonymity and compensation: an experiment with American sperm donors, the authors contribute to our knowledge about the impact of moving toward a system of known sperm donation in the USA by surveying a population of active and inactive actual sperm donors. Their conclusions—slightly more than a quarter would refuse to contribute, while the remaining donors would require an additional $60 per donation—are interesting and useful in modeling the implications of moving towards a new regime that allows for limited disclosure.

Yet this study must be placed in a larger context that considers not just the market for …

Trinity Lutheran Church V. Comer: Paradigm Lost?, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

Acting pursuant to its state constitution, Missouri excluded houses of worship from a program that provides government support for resurfacing playgrounds. In Trinity Lutheran Church v. Comer (“TLC”), the Supreme Court ruled (7-2) that this exclusion violated the Free Exercise Clause. To those with a sense of Religion Clause history, the Supreme Court's opinion arrived as a shock.

As this essay explains, the agreement among the Justices in the majority masks deep division about basic Religion Clause principles. The essay analyzes the status of those principles, and the ways in which TLC disregards or abandons them.

Most starkly, …

A Critical Guide To Using The Legislative History Of The Fourteenth Amendment To Determine The Amendment's Original Meaning, Gregory E. Maggs

GW Law Faculty Publications & Other Works

Judges, lawyers, and scholars often look to the Fourteenth Amendment’s legislative history for evidence of the Amendment’s original meaning. Members of the Supreme Court, for instance, have cited floor statements, committee records, preliminary proposals, and other documents relating to the drafting and approval of the Fourteenth Amendment in many important cases. The documents containing this legislative history, however, are difficult to use. As explained in this Article, the Amendment came about through a complex process, in which Congress rejected several prior proposals for constitutional amendments before settling on a markedly different proposal that became the Fourteenth Amendment. Although the primary …

The U.S. Federal Procurement System: An Introduction, Christopher R. Yukins

GW Law Faculty Publications & Other Works

The U.S. procurement market is one of the largest in the world, and the procurement law which guides that market, a regulatory regime which is both complex and mature, offers important lessons for other procurement systems around the world. This article provides a modest introduction to U.S. procurement law – especially federal procurement law, which generally is more extensively developed than state or local procurement law – and suggests possible lessons learned that may be useful for other systems. The article proceeds in several parts. The article reviews the history of the federal procurement system, which can be traced to …

Acceptance Instead Of Denial: Pro-Applicant Positions At The Pto, Dmitry Karshtedt

GW Law Faculty Publications & Other Works

In Medicines Co. v. Hospira, Inc., 827 F.3d 1363 (Fed. Cir. 2016) (en banc), the United States filed an amicus brief, signed by the U.S. Patent and Trademark Office's (PTO) Solicitor and attorneys in the Department of Justice, in support of the plaintiff-appellant. Among other things, the government argued that secret sales should not trigger the on-sale bar within the meaning of § 102 of the Patent Act applying to patents governed by the regime prior to the Leahy-Smith America Invents Act. While government amicus filings in patent infringement cases are not uncommon, this brief is notable because it explicitly …

The Fate Of The Clean Power Plan And U.S. Greenhouse Gas Emissions In The Trump Era, Robert L. Glicksman

GW Law Faculty Publications & Other Works

The Obama Administration’s signature effort to abate greenhouse gases (GHGs) that contribute to climate change was its Clean Power Plan (CPP), an innovative effort to rein in GHGs from existing fossil fuel-fired power plants, the U.S.’s largest source of stationary source emissions. The CPP never went into effect, however, the victim of an unusual stay issued by the United States Supreme Court before its effective date. Subsequently, a lower court halted the litigation attacking the CPP at the request of the Trump Administration to allow it to review (and presumably repeal) the CPP and put its own stamp on climate …

Presidential Politics And Judicial Review, Robert L. Glicksman, David Aldeman

GW Law Faculty Publications & Other Works

This Article assesses the impact of judicial review on one of the nation’s foundational environmental statutes, the National Environmental Policy Act (NEPA). Based on litigation spanning fifteen years, we find that the stringency of judicial review is driven by the interaction of judicial ideology and presidential politics. Our principal findings are two-fold: First, judicial ideology, here defined by political party affiliation, is most influential when NEPA’s environmental goals conflict with the politics of the presidential administration in power. Second, the influence of judicial ideology is mediated by the distribution of cases across federal circuits and the ideological balance of judges …

Counter-Claims At The International Court Of Justice (2017), Sean D. Murphy

GW Law Faculty Publications & Other Works

This essay analyzes the practice of addressing counter-claims before the International Court of Justice (ICJ), as well as its predecessor, the Permanent Court of International Justice (PCIJ). In the Court’s jurisprudence, a “counter-claim” is an autonomous legal act by the respondent in a contentious case before the Court, the object of which is to submit a new claim to the Court, one that is linked to the principal claim. A counter-claim is not a defense on the merits to the principal claim; while it is a reaction to that claim, it is pursuing objectives other than simply dismissal of the …

Ministry Of Truth? Why Law Can’T Stop Prevarications, Bullshit, And Straight-Out Lies In Political Campaigns, Catherine J. Ross

GW Law Faculty Publications & Other Works

Governmental actions to restrain campaign falsehoods include federal and state statutes and judicial intervention. The article offers a taxonomy of campaign falsehoods and the different harms various kinds of falsehood generate and examines statutes adopted in sixteen states aimed at false speech about candidates, this article argues that efforts to control false speech about candidates (whether positive about the speaker or falsely negative about the opponents) face insurmountable First Amendment obstacles, as every court to consider such a statute has concluded. If the government becomes the arbiter of truth or falsehood, it is engaging in content-based regulation. Moreover, the article …