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Articles 1 - 30 of 78
Full-Text Articles in Law
§ 5:34 Waiver Of Privilege — Inadvertent Or Involuntary Disclosure, Laird Kirkpatrick, Christopher B. Mueller
§ 5:34 Waiver Of Privilege — Inadvertent Or Involuntary Disclosure, Laird Kirkpatrick, Christopher B. Mueller
GW Law Faculty Publications & Other Works
In their first twenty years (1975-1995), the federal rules of evidence changed little. However, changes have accelerated since 1993, with creation of the Evidence Rules Advisory Committee which meets regularly and proposes changes to the rules almost every year. One change, which grew out of the work of a special committee, was the addition of an entirely new provision, Rule 502, which governs waiver of attorney-client privilege. This rule became law in 2008 through congressional enactment (privilege rules must be passed by Congress in order to take effect). Sections 5:34 discusses this new provision. Under "Privileges: Rule 501,"section 5:34 discusses …
The Benefits To Be Derived From Post-Negotiation Assessments, Charles B. Craver
The Benefits To Be Derived From Post-Negotiation Assessments, Charles B. Craver
GW Law Faculty Publications & Other Works
Lawyers negotiate regularly, but few ever take the time when they have completed such critical interactions to ask themselves how they did. If they hope to improve their bargaining capabilities, they should take a few minutes after their more significant interactions to ask themselves some basic questions. Were they thoroughly prepared, and did they establish elevated but realistic aspirations? How did the negotiation stages develop? What bargaining techniques did they employ, and how did they counteract the tactics used by the other side? What did they do that they wished they had not done? What did they not do that …
Landscape Level Management Of Parks, Refuges, And Preserves For Ecosystem Resilience, Robert L. Glicksman, Graeme S. Cumming
Landscape Level Management Of Parks, Refuges, And Preserves For Ecosystem Resilience, Robert L. Glicksman, Graeme S. Cumming
GW Law Faculty Publications & Other Works
The laws governing management of national parks, wildlife refuges, and other federal land preserves seek to conserve natural resources in highly treasured locations. The nature of conservation has changed substantially, however, since Congress first enacted these laws. It is clear that protected ecosystems are influenced by outside events and that management of human-dominated ecosystems is essential to long-term sustainability of the ecosystems containing protected preserves. The effects of climate change, invasive species introductions, and other broad-scale anthropogenic influences are expected to alter the functioning of natural systems in ways that will make it impossible for protected areas to function as …
The End Of Men Or The Rebirth Of Class? How Hanna Rosin Leaves Out The 1% & Family Law Fails The Other 99%, Naomi R. Cahn, June Carbone
The End Of Men Or The Rebirth Of Class? How Hanna Rosin Leaves Out The 1% & Family Law Fails The Other 99%, Naomi R. Cahn, June Carbone
GW Law Faculty Publications & Other Works
This article argues that much of what has been described as “the end of men” is in fact the recreation of class. Greater inequality among men and among women has resurrected class differences and changed the way men and women relate to each other and channel resources to their children. While women have in fact gained ground in the workplace and acquired greater ability to live, work, play and raise children without men, a mere relative move towards sex equality only masks the more fundamental changes occurring in American society and the continuing existence of patriarchy. First, the improved freedom …
Mobility Measures, Naomi Schoenbaum
Mobility Measures, Naomi Schoenbaum
GW Law Faculty Publications & Other Works
Geographic mobility is a celebrated feature of American life. Deciding where to live is seen not only as a key personal freedom, but also a means of economic advancement. Millions of Americans move each year over great distances. But while this right to travel is safeguarded by the Constitution, these mobility decisions are not entirely free. In terms of moving long distances, employment and family reasons are central, and a regime of employment and family law “mobility measures” play a significant role in regulating why and how we move. This Article first sets forth this new framework of “mobility measures,” …
Brief For Esther Kiobel, Et Al., As Amici Curiae Supporting Petitioners, Kiobel V. Royal Dutch Petroleum Co., 132 S.Ct. 1738 (2012) (No. 10-1491)., Ralph G. Steinhardt, Arin Melissa Brenner
Brief For Esther Kiobel, Et Al., As Amici Curiae Supporting Petitioners, Kiobel V. Royal Dutch Petroleum Co., 132 S.Ct. 1738 (2012) (No. 10-1491)., Ralph G. Steinhardt, Arin Melissa Brenner
GW Law Faculty Publications & Other Works
No abstract provided.
Legal Disputes Related To Climate Change Will Continue For A Century, Richard J. Pierce Jr
Legal Disputes Related To Climate Change Will Continue For A Century, Richard J. Pierce Jr
GW Law Faculty Publications & Other Works
Professor Pierce summarizes the expected effects of anthropogenic climate change, discusses the expensive and ineffective efforts that have been attempted to date to mitigate climate change, describes a more promising strategy for the future, and explains why the US must prepare to make major changes in law to adapt to some significant changes in climate that are inevitable. This paper was originally presented to the DC Bar as the 2012 Harold Leventhal Lecture.
The Participation Interest, Spencer A. Overton
The Participation Interest, Spencer A. Overton
GW Law Faculty Publications & Other Works
Lack of participation is a primary problem with money in politics. Relatively few people make political contributions—less than one-half of one percent of the population provides the bulk of the money that politicians collect from individual contributors. This Article introduces and details the state’s interest in expanding citizen participation in financing politics. Rather than focus solely on pushing an incomplete anticorruption framework to restrict special interest influence, reformers should also embrace a strategy of giving more people influence. Reformers should accept that money produces speech and that “special interests” in the form of grassroots organizations are a democratic good that …
Geoengineering And The Science Communication Environment: A Cross-Cultural Experiment, Donald Braman, Dan M. Kahan, Hank C. Jenkins-Smith, Tor Tarantola, Carol L. Silva
Geoengineering And The Science Communication Environment: A Cross-Cultural Experiment, Donald Braman, Dan M. Kahan, Hank C. Jenkins-Smith, Tor Tarantola, Carol L. Silva
GW Law Faculty Publications & Other Works
We conducted a two-nation study (United States, n = 1500; England, n = 1500) to test a novel theory of science communication. The cultural cognition thesis posits that individuals make extensive reliance on cultural meanings in forming perceptions of risk. The logic of the cultural cognition thesis suggests the potential value of a distinctive two-channel science communication strategy that combines information content (“Channel 1”) with cultural meanings (“Channel 2”) selected to promote open-minded assessment of information across diverse communities. In the study, scientific information content on climate change was held constant while the cultural meaning of that information was experimentally …
Global Legal Pluralism: A Jurisprudence Of Law Beyond Borders (Introduction), Paul Schiff Berman
Global Legal Pluralism: A Jurisprudence Of Law Beyond Borders (Introduction), Paul Schiff Berman
GW Law Faculty Publications & Other Works
We live in a world of legal pluralism, where a single act or actor is potentially regulated by multiple legal or quasi-legal regimes imposed by state, substate, transnational, supranational, and nonstate communities. Navigating these spheres of complex overlapping legal authority is inevitably confusing, and we cannot expect territorial borders to solve all the problems that arise because legal norms inevitably flow across such borders. At the same time, trying to create one universal set of legal rules is also often unsuccessful because the sheer variety of human communities and interests thwarts such efforts. Instead, we need an alternative jurisprudence, one …
The Age Of Innocence: The First 25 Years Of The National Collegiate Athletic Association, 1906 To 1931, W. Burlette Carter
The Age Of Innocence: The First 25 Years Of The National Collegiate Athletic Association, 1906 To 1931, W. Burlette Carter
GW Law Faculty Publications & Other Works
The article traces the history of the most powerful body in amateur sports, the NCAA, discussing the regulation of amateur sports before it arose, the factors that led to its creation, early definitions of amateurism, key issues facing the early body, its promotion of University amateur sports as a training ground for soldiers during World War I, emerging conflicts among members, its treatment of collegiate segregation policies and campus neglect of women's sports opportunities, and how past problems in amateur sports regulation were prologue for the issues facing intercollegiate athletics regulators and participants today.
Kiobel, Subject Matter Jurisdiction, And The Alien Tort Statute, Bradford R. Clark
Kiobel, Subject Matter Jurisdiction, And The Alien Tort Statute, Bradford R. Clark
GW Law Faculty Publications & Other Works
The Supreme Court is currently reviewing the Second Circuit’s decision in Kiobel v. Royal Dutch Petroleum, a case holding that federal courts lack jurisdiction under the Alien Tort Statute (“ATS”) over claims against corporations. Although the parties have focused on issues of corporate liability under the ATS, there is a logically antecedent question of subject matter jurisdiction that the Court should decide before considering corporate liability. All of the parties in Kiobel — whether corporate or individual — are aliens. Understood in its full legal and historical context, the ATS was a jurisdictional statute that did not apply to suits …
It's Not Purely Academic: Using Practitioners To Increase The Rigor And Practical Learning In Scholarly Writing, Karen Thornton
It's Not Purely Academic: Using Practitioners To Increase The Rigor And Practical Learning In Scholarly Writing, Karen Thornton
GW Law Faculty Publications & Other Works
Law schools that are building new courses and adding to their existing curriculum in an effort to offer more practical legal training may be overlooking the practical skills that can be developed through an existing graduation requirement - upper level writing. At The George Washington University Law School a practitioner-taught Scholarly Writing course focuses on the practical application of academic writing and prepares 2L students for the demanding expectations of the 2L summer associateship/internship. This Article describes the ABA standard for upper level writing, explains how the adjunct-taught program at GW Law provides skills training and professional development, and addresses …
Outsourcing Covert Activities, Laura T. Dickinson
Outsourcing Covert Activities, Laura T. Dickinson
GW Law Faculty Publications & Other Works
Over the past decade, the United States has radically shifted the way it projects its power overseas. Instead of using full-time employees of foreign affairs agencies to implement its policies, the government now deploys a wide range of contractors and grantees, hired by both for-profit and nonprofit entities. Thus, while traditionally we relied on diplomats, spies, and soldiers to protect and promote our interests abroad, increasingly we have turned to hired guns. Contrast the first Gulf War to later conflicts in Iraq and Afghanistan. During the Gulf War the ratio of contractors to troops was 1 to 100; now, with …
Reflections On The Federal Procurement Landscape, Daniel I. Gordon
Reflections On The Federal Procurement Landscape, Daniel I. Gordon
GW Law Faculty Publications & Other Works
This paper, published in the Government Contractor, presents the reflections on the author's service as the Administrator for Federal Procurement Policy from 2009 through 2011. The author identifies his three goals for his tenure as Administrator: strengthening the federal acquisition workforce, driving fiscal responsibility in federal acquisition, and rebalancing the relationship with contractors. The author points to reversal of several negative trends, in particular, decline in the size of the federal acquisition workforce during the years 1992-2009, unsustainable annual increases in procurement spending during those years, and an unhealthy overreliance on contractors in performance of key government functions. In each …
Behavioral Economics And Its Meaning For Antitrust Agency Decision Making, William E. Kovacic, James C. Cooper
Behavioral Economics And Its Meaning For Antitrust Agency Decision Making, William E. Kovacic, James C. Cooper
GW Law Faculty Publications & Other Works
Of all fields of regulation in the United States, antitrust law relies most heavily on economics to inform the design and application of legal rules. When drafting antitrust statutes in the late 19th and early 20th centuries, Congress anticipated that courts and enforcement agencies would formulate and adjust operational standards to account for new learning. The field of economics — especially industrial organization economics — would give broad statutory commands much of their analytical content.
In principle, the flexibility of U.S. antitrust statutes makes competition policy adaptable and accommodates for upgrades over time. This evolutionary process is only effective if …
An Addendum To Cox And Posner: A Visa To 'Snitch', Eleanor Marie Brown
An Addendum To Cox And Posner: A Visa To 'Snitch', Eleanor Marie Brown
GW Law Faculty Publications & Other Works
Cox and Posner’s landmark contribution is the first article to have highlighted the challenges of information asymmetry in immigration screening. While Cox and Posner have undoubtedly made a significant contribution, there is a critical oversight in their framework: they do not discuss the importance of targeted ex post mechanisms of screening educational elites. This Essay is an attempt to remedy Cox and Posner’s omission. Why is this oversight so problematic? In the post-9/11 world, U.S. immigration policy currently finds itself on the horns of a dilemma. While immigrant educational elites are critical to U.S. economic growth, terrorist networks have stepped …
Book Review Of The Law Of International Responsibility (James Crawford, Alain Pellet, And Simon Olleson Eds., Oxford University Press, 2010), Sean D. Murphy
Book Review Of The Law Of International Responsibility (James Crawford, Alain Pellet, And Simon Olleson Eds., Oxford University Press, 2010), Sean D. Murphy
GW Law Faculty Publications & Other Works
If one were to affix a label to the first decade of work by the UN International Law Commission in this century, a good one to choose would be the “decade of codifying international responsibility.” No fewer than five projects relating to that general topic were brought to a conclusion by the Commission in the space of ten years, constituting a formidable effort at codification that may well influence the field of public international law for years to come. Given that the Commission had spent decades considering, as part of a single project, myriad aspects of state responsibility, in some …
In Defense Of Judicial Empathy, Thomas B. Colby
In Defense Of Judicial Empathy, Thomas B. Colby
GW Law Faculty Publications & Other Works
President Obama has repeatedly stated that he views a capacity for empathy as an essential attribute of a good judge. And conservatives have heaped mountains of scorn upon him for saying so—accusing him of expressing open contempt for the rule of law. To date, the debate has been surprisingly one-sided. One federal judge has recently noted that “President Obama’s statement that judges should have ‘empathy’ was met with strong criticism from his opponents and uncomfortable silence from his supporters.” This Article seeks to offer a sustained defense of the President’s call for empathy in judging. Its argument is neither grounded …
The Law Of Nations As Constitutional Law, Bradford R. Clark, Anthony J. Bellia Jr.
The Law Of Nations As Constitutional Law, Bradford R. Clark, Anthony J. Bellia Jr.
GW Law Faculty Publications & Other Works
Courts and scholars continue to debate the status of customary international law in U.S. courts, but have paid insufficient attention to the role that such law plays in interpreting and upholding several specific provisions of the Constitution. The modern position argues that courts should treat customary international law as federal common law. The revisionist position contends that customary international law applies only to the extent that positive federal or state law has adopted it. Neither approach adequately takes account of the Constitution’s allocation of powers to the federal political branches in Articles I and II or the effect of these …
The America Invents Act, Its Unique First-To-File System And Its Transfer Of Power From Juries To The United States Patent And Trademark Office, Martin J. Adelman
The America Invents Act, Its Unique First-To-File System And Its Transfer Of Power From Juries To The United States Patent And Trademark Office, Martin J. Adelman
GW Law Faculty Publications & Other Works
The signing of the Leahy-Smith America Invents Act (AIA) by President Obama on 16 September 2011 is a landmark event in the history of American patent law. It has already been the subject of numerous articles on the web and in the law reviews as well as in the popular press. I have no intention here of going into all the details of the AIA, I just want to leave the reader with a sense for its eventual impact on American patent law. All the details are to be found in its 37 sections whose titles give the reader a …
Comparative Administrative Law, Francesca Bignami
Comparative Administrative Law, Francesca Bignami
GW Law Faculty Publications & Other Works
This chapter provides an overview of comparative administrative law, with particular attention to European jurisdictions and the United States. The underlying conceptual similarity that serves to organize the comparative analysis is the purpose, common to these systems, of rendering public administration both capable and expert, on the one hand, and accountable to a variety of liberal democratic actors, on the other hand. The chapter first discusses what historically was the principal legal tool for achieving neutrality and expertise—the legal guarantees of civil service employment—together with national variations in the professionalization of administration. It then turns to three important types of …
Toward A Unified Grading Vocabulary: Using Grading Rubrics To Set Student Expectations And Promote Consistency In Legal Writing Courses, Jessica L. Clark, Christy Hallam Desanctis
Toward A Unified Grading Vocabulary: Using Grading Rubrics To Set Student Expectations And Promote Consistency In Legal Writing Courses, Jessica L. Clark, Christy Hallam Desanctis
GW Law Faculty Publications & Other Works
Faced with the American Bar Association's proposed changes to law school accreditation standards, especially related to student assessment and outcome measurement, law schools are responding by developing and incorporating assessment standards. Likely related to these proposed changes, there has been an undeniable recent trend in law school assessment scholarship, which is one way to measure law schools' reactions to the call for change. This article contributes to that trend by offering an introduction to a methodology of assessing legal writing - through the use of detailed grading guidelines called rubrics. Our experience over the past several years of using rubrics …
Natural Gas: A Long Bridge To A Promising Destination, Richard J. Pierce Jr
Natural Gas: A Long Bridge To A Promising Destination, Richard J. Pierce Jr
GW Law Faculty Publications & Other Works
In this essay, Professor Pierce argues that the horizontal drilling and hydraulic fracturing of shale formations that has nearly doubled US gas supplies over the last six years has the potential to yield a century of enormous environmental and economic benefits to the US and to the world.
Nullifying The Debt Ceiling Threat Once And For All: Why The President Should Embrace The Least Unconstitutional Option, Neil H. Buchanan, Michael C. Dorf
Nullifying The Debt Ceiling Threat Once And For All: Why The President Should Embrace The Least Unconstitutional Option, Neil H. Buchanan, Michael C. Dorf
GW Law Faculty Publications & Other Works
In August 2011, Congress and the President narrowly averted economic and political catastrophe, agreeing at the last possible moment to authorize a series of increases in the national debt ceiling. This respite, unfortunately, was merely temporary. The amounts of the increases in the debt ceiling that Congress authorized in 2011 were only sufficient to accommodate the additional borrowing that would be necessary through the end of 2012. In an economy that continued to show chronic weakness -- weakness that continues to this day -- the federal government would pre-dictably continue to collect lower-than-normal tax revenues and to make higher-than-normal expenditures, …
Counter-Claims At The International Court Of Justice (2012), Sean D. Murphy
Counter-Claims At The International Court Of Justice (2012), Sean D. Murphy
GW Law Faculty Publications & Other Works
In proceedings before the International Court of Justice (I.C.J.), a “counter-claim” is “an autonomous legal act” by the Respondent in a contentious case, “the object of which is to submit a new claim to the Court,” one that is “linked to the principal claim, in so far as, formulated as a ‘counter’ claim, it reacts 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 principal claim. Hence, the reason for allowing a counter-claim to …
A Concise Guide To The Records Of The Federal Constitutional Convention Of 1787 As A Source Of The Original Meaning Of The U.S. Constitution, Gregory E. Maggs
A Concise Guide To The Records Of The Federal Constitutional Convention Of 1787 As A Source Of The Original Meaning Of The U.S. Constitution, Gregory E. Maggs
GW Law Faculty Publications & Other Works
The article describes the Constitutional Convention and the various kinds of records that were kept of its proceedings. The essay then explains, with examples, how judicial opinions and academic works draw upon the records for evidence of the Constitution’s original meaning, including both the meaning that the Framers may have subjectively intended the document to have and also other possible meanings. The essay next identifies and assesses seven important potential grounds for impeaching assertions about what the records show. Each of these potential grounds has merit in some contexts, but all of them are also subject to significant limitations or …
Improving Water Quality Antidegradation Policies, Robert L. Glicksman, Sandra B. Zellmer
Improving Water Quality Antidegradation Policies, Robert L. Glicksman, Sandra B. Zellmer
GW Law Faculty Publications & Other Works
The Clean Water Act’s principal goal is to “restore and maintain” the integrity of the nation’s surface water bodies. The Act’s adoption was spurred largely by the perception that unchecked pollution had caused the degradation of those waters, making them unsuitable for uses such as fishing and swimming. At the time Congress passed the statute, however, some lakes, rivers, and streams had water quality that was better than what was needed to support these uses. An important question was whether the statute would limit discharges with the potential to impair these high quality waters. EPA’s anti-degradation policy sought to ensure …
Commitment Bonds, Michael B. Abramowicz
Commitment Bonds, Michael B. Abramowicz
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 …
The Past, Present, And Future Of Critical Tax Theory: A Conversation, Karen B. Brown
The Past, Present, And Future Of Critical Tax Theory: A Conversation, Karen B. Brown
GW Law Faculty Publications & Other Works
This essay endeavors to document and to preserve the story of the origins of the book Taxing America (NYU Press 1997) edited by KarenB. Brown and Mary Louise Fellows. The publication of that text was a key milestone in the development of critical tax theory as an intellectual discipline. By identifying and bringing together lawyers and scholars with an interest in the political and discriminatory aspects of tax law, Professors Brown and Fellows created one of the first working groups of critical tax theorists. In this essay, the book's two editors reflect on the book's intellectual antecedents and its material …