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Ip Transactions: On The Theory & Practice Of Commercializing Innovation, F. Scott Kieff Jan 2005

Ip Transactions: On The Theory & Practice Of Commercializing Innovation, F. Scott Kieff

GW Law Faculty Publications & Other Works

All too often within organizations and communities, innovations are not generated or put to use as rapidly or as broadly as they could be. Chief targets for blame include the problems of transaction costs, agency costs, lack of coordination, and improper incentives. Borrowing from the rich literature in the field generally known as new institutional economics, which has studied these types of problems more broadly, this Article elucidates how some practical tools might be expected to mitigate such problems. Particular arrangements of formal law and informal practice may help reach across the "valley of death" between early stage technologies and …


Organizational Conflicts Of Interest: A Growing Integrity Challenge, Daniel I. Gordon Jan 2005

Organizational Conflicts Of Interest: A Growing Integrity Challenge, Daniel I. Gordon

GW Law Faculty Publications & Other Works

Recent experience in the United States suggests that public procurement professionals increasingly encounter a particular kind of conflict of interest, organizational conflicts of interest (OCIs). OCIs arise in situations where an entity plays two or more roles that are, in some sense, at odds with one another. This article endeavors to set out some points for consideration in this increasingly important area. Alleged OCIs have been identified in various activities of the U.S. federal procurement process, from contracts for security services in Iraq to public/private competitions for work to be performed in the U.S. This article first suggests reasons for …


Improving Regulation Through Incremental Adjustment, Robert L. Glicksman, Sidney A. Shapiro Jan 2005

Improving Regulation Through Incremental Adjustment, Robert L. Glicksman, Sidney A. Shapiro

GW Law Faculty Publications & Other Works

Claiming that existing regulation is excessive and irrational, regulatory critics have successfully convinced Congress and the White House to implement a plethora of procedural requirements to analyze a proposed regulation before it is promulgated. In our book, Risk Regulation at Risk: Restoring A Pragmatic Approach (2003), we argued that the previous initiatives address the possibility of regulatory failure on the wrong end of the regulatory policy implementation process. We suggested that one way of improving regulation would be to rely on incremental adjustments in regulation on the back end of the regulatory process. This article addresses in more detail the …


Lessons For Competition Policy From The Vitamins Cartel, William E. Kovacic Jan 2005

Lessons For Competition Policy From The Vitamins Cartel, William E. Kovacic

GW Law Faculty Publications & Other Works

Mergers have the potential for negative social welfare consequences from increased likelihood or effectiveness of future collusion. This raises the question of whether there are meaningful thresholds for the post-merger industry that should trigger significant scrutiny by the Department of Justice or Federal Trade Commission. This paper provides empirical analysis relevant to this question. The data does not come from an industry in which there were mergers, but instead from an industry in which explicit collusion was admittedly rampant in the 1990's, the Vitamins Industry. Different vitamin products are produced by different numbers of firms, and for different vitamin products, …


Ipse Dixit At The I.C.J., Sean D. Murphy Jan 2005

Ipse Dixit At The I.C.J., Sean D. Murphy

GW Law Faculty Publications & Other Works

No abstract provided.


The Doctrine Of Preemptive Self-Defense, Sean D. Murphy Jan 2005

The Doctrine Of Preemptive Self-Defense, Sean D. Murphy

GW Law Faculty Publications & Other Works

To the extent that the intervention in Iraq in 2003 is regarded as an act of preemptive self-defense, the aftermath of that intervention may presage an era where states resist resorting to large-scale preemptive self-defense. The intervention in Iraq highlighted considerable policy difficulties with the resort to preemptive self-defense: an inability to attract allies; the dangers of faulty intelligence regarding a foreign state's weapons programs and relations with terrorist groups; the political, economic and human costs in pursuing wars of choice; and the resistance of a local populace or radicalized factions to what is viewed as an unwarranted foreign invasion …


A Theory Of Copyright's Derivative Right And Related Doctrines, Michael B. Abramowicz Jan 2005

A Theory Of Copyright's Derivative Right And Related Doctrines, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

Borrowing from the rent dissipation literature that has proven useful in patent analysis, in this Article I provide an economic foundation for copyright’s derivative right to prepare sequels and adaptations and suggest a straightforward doctrinal test for that right. I argue that the suppression of competition in creating adaptations of the same copyrighted expression, rather than being a loss, might instead be the derivative right’s chief economic virtue, giving an author control over adaptations and limiting the production of those that would be close substitutes for one another. In Part I, I explain and question the conventional justification of the …


Spare The Rod, Spoil The Director? Revitalizing Directors' Fiduciary Duty Through Legal Liability, Lisa M. Fairfax Jan 2005

Spare The Rod, Spoil The Director? Revitalizing Directors' Fiduciary Duty Through Legal Liability, Lisa M. Fairfax

GW Law Faculty Publications & Other Works

It appears that our society has tacitly agreed to spare corporate directors any significant legal liability - which includes both financial and incarceration - for failing to perform their duties as board members. Thus, over the last twenty years, there has been a virtual elimination of legal liability - particularly in the form of financial penalties - for directors who breach their fiduciary duty of care. This is true despite the fact that we entrust directors with the awesome responsibility of monitoring all of America's corporations as well as the officers and agents within those corporations. More surprisingly, this tacit …


The Bottom Line On Board Diversity: A Cost-Benefit Analysis Of The Business Rationales For Diversity On Corporate Boards, Lisa M. Fairfax Jan 2005

The Bottom Line On Board Diversity: A Cost-Benefit Analysis Of The Business Rationales For Diversity On Corporate Boards, Lisa M. Fairfax

GW Law Faculty Publications & Other Works

The Bottom Line on Board Diversity: A Cost Benefit Analysis of the Business Rationales for Diversity on Corporate Boards critically examines the business rationales for diversity in order to determine whether they can or should be used to encourage greater diversity on the boards of major corporations. The Article acknowledges the validity of some of the business rationales for diversity within corporations more generally, but questions whether those rationales apply with as much force in the context of corporate boards and the obligations board members undertake. On this point, the Article concludes that such rationales promise more, and in some …


Some Reflections On The Diversity Of Corporate Boards: Women, People Of Color, And The Unique Issues Associated With Women Of Color, Lisa M. Fairfax Jan 2005

Some Reflections On The Diversity Of Corporate Boards: Women, People Of Color, And The Unique Issues Associated With Women Of Color, Lisa M. Fairfax

GW Law Faculty Publications & Other Works

As one might expect, there are many similarities between the circumstances of women directors and directors of color, which includes African Americans, Latinos, and Asian Americans. Indeed, both groups began appearing on corporate boards in significant numbers during the same period - right after the Civil Rights Movement pursuant to which the push for racial equality throughout society precipitated efforts to achieve greater representation of people of color as well as women on corporate boards. Moreover, while women and people of color have experienced some increase in board representation over the last few decades, both groups also have encountered significant …


'Murder And The Reasonable Man' Revisited: A Response To Victoria Nourse, Cynthia Lee Jan 2005

'Murder And The Reasonable Man' Revisited: A Response To Victoria Nourse, Cynthia Lee

GW Law Faculty Publications & Other Works

As King Solomon understood, custody disputes ordinarily allow no easy answers. Increasingly, legal actors have begun to rely on the child's custodial preference as a proxy for her best interests. In an effort to ascertain this preference without subjecting the child to the trauma of courtroom testimony, many states authorize courts to interview children in camera. Good intentions notwithstanding, these custody interviews pose considerable risk to children, to their parents, and to the State's best-interests quest.

These risks increase dramatically when in-camera interviews serve as tools for searching out preferences that have not been publicly volunteered; when children's preferences are …


The New York Bar And Reform Of The Elected Judiciary After The Civil War, Renée Lettow Lerner Jan 2005

The New York Bar And Reform Of The Elected Judiciary After The Civil War, Renée Lettow Lerner

GW Law Faculty Publications & Other Works

This paper deals with the history of America's other peculiar institution: the elected judiciary. Elected judges are found virtually nowhere else in the world, but in America they are a fact of life in the considerable majority of states. The history of the elected judiciary is surprisingly little explored. This paper examines the post-Civil War trend away from Jacksonian populism and toward a more aristocratic view of the judiciary as a body set apart from the people. After the Civil War, many states, including New York, lengthened terms of office for their elected judges; some states even switched back to …


Liberty Takings: A Framework For Compensating Pretrial Detainees, Jeffrey Manns Jan 2005

Liberty Takings: A Framework For Compensating Pretrial Detainees, Jeffrey Manns

GW Law Faculty Publications & Other Works

This Article shows how the application of a takings paradigm to pretrial detention can mitigate the distorted incentives which shape bail hearings and plea bargaining. The case for compensating pretrial detainees poses challenges because the existence of probable cause of having committed a criminal offense combined with the presence of other risk factors formally legitimizes bail hearing decisions. However, this Article analogizes the taking of people to the taking of property to argue that pretrial detention constitutes a liberty taking which inflicts punishment on unconvicted defendants and creates incentives for false pleas and other perversions of justice. While society faces …


Educating Lawyers For The Future Legal Profession, Thomas D. Morgan Jan 2005

Educating Lawyers For The Future Legal Profession, Thomas D. Morgan

GW Law Faculty Publications & Other Works

What today's law students do as lawyers will be profoundly affected by changes their clients experience. Clients are likely to face more global competition than earlier generations could imagine, and they are likely to value lawyers who understand the non-legal aspects of their problems. Tomorrow's lawyers are likely to have to be more specialized than their predecessors, and many will deliver services that are less personal, more commodity-like, and less financially rewarding. Legal education, in turn, faces challenges producing lawyers capable of functioning in that world. Future lawyers will have to be simultaneously more specialized and more capable of responding …


Realizing The Promise Of Restructuring The Electricity Market, Richard J. Pierce Jr Jan 2005

Realizing The Promise Of Restructuring The Electricity Market, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

In this contribution to a symposium on restructuring the U.S. electricity market, I summarize the peaks and valleys that have characterized the restructuring process over the past two decades. I begin by describing the reasons why I joined with a group of other academics twenty years ago in an effort to restructure the U.S electricity market. The market was characterized by large, well-documented structural and operational maladies; it had performed poorly for over a decade; its basic characteristics were consistent with increased reliance on market forces as an effective governance mechanism; and, our recent success in restructuring analogous markets provided …


Mergers In The Electric Power Industry, Richard J. Pierce Jr Jan 2005

Mergers In The Electric Power Industry, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

In this draft chapter, Professor Pierce provides an overview of the ongoing process through which the Federal Energy Regulatory Commission (FERC) has been attempting to restructure the U.S. electricity industry to create effectively competitive wholesale electricity markets for almost two decades and of the merger policies FERC has adopted and applied during that period. Pierce gives FERC high marks for adopting as its own the DOJ/FTC merger guidelines and then attempting to apply those guidelines to the unique characteristics of the evolving competitive electricity markets FERC has been attempting to create. He identifies three difficult systemic questions FERC has encountered …


Reforming The Administrative Procedure Act: Democracy Index Rulemaking, David Fontana Jan 2005

Reforming The Administrative Procedure Act: Democracy Index Rulemaking, David Fontana

GW Law Faculty Publications & Other Works

This Essay argues that the current regime of administrative law should be changed by creating legal incentives for agencies to involve the public in the rulemaking process via "democracy index rulemaking." Democracy index rulemaking would create a clear incentive for agencies to involve the public by requiring that the more participation that occurred during the rulemaking process, the more deference that such an agency rule would receive in court. An agency could receive this deference by using normal notice and comment procedures and receiving a large number of relevant and non-repetitive comments on a proposed rule, with the precise amount …


The Current Generation Of Constitutional Law, David Fontana Jan 2005

The Current Generation Of Constitutional Law, David Fontana

GW Law Faculty Publications & Other Works

In this piece reviewing Mark Tushnet's "The New Constitutional Order," David Fontana argues that Tushnet's admirably comprehensive book faces some of the same problems that many other pieces of popular constitutionalism scholarship do: He discusses the Constitution outside of the courts without examining the actual behavior of the Constitution outside of the courts. As it turns out, Tushnet is mostly right that there has not been a major constitutional revolution in the past generation. Still, by understudying the behavior of institutions besides courts, the book does not focus enough on the extent to which the entire political dynamic has moved …


The Federal Marriage Amendment: To Protect The Sanctity Of Marriage Or Destroy Constitutional Democracy?, Joan Schaffner Jan 2005

The Federal Marriage Amendment: To Protect The Sanctity Of Marriage Or Destroy Constitutional Democracy?, Joan Schaffner

GW Law Faculty Publications & Other Works

For the several years, primarily as a political ploy, the President and Republican Congress, proposed an amendment to the US Constitution to prohibit marriage between people of the same sex - the Federal Marriage Amendment. This article analyzed this proposed amendment in light of the constitutional principles that govern our society, individual rights, federalism, separation of powers, and judicial review. The article concludes that the FMA is itself constitutionally suspect and is more destructive, on balance, of the basic democratic constitutional principles than any amendment previously adopted or proposed. The amendment violates every tenet of constitutional democracy by: (1) expressly …


The Polymorphic Principle And The Judicial Role In Statutory Interpretation, Jonathan R. Siegel Jan 2005

The Polymorphic Principle And The Judicial Role In Statutory Interpretation, Jonathan R. Siegel

GW Law Faculty Publications & Other Works

The Supreme Court's statutory interpretation cases present an ongoing clash between mechanical, textualist, rule-based interpretive methods that seek to limit the role of judicial choice and more flexible methods that call upon courts to exercise intelligent judgment. In the recent case of Clark v. Martinez, 125 S. Ct. 716 (2005), the mechanical view of judging prevailed. The Court applied a purported canon of statutory construction that requires that a single phrase in a single statutory provision must always have a single meaning. The Court said that any other interpretive approach would be novel and dangerous. The Court is wrong on …


A Model Regime Of Privacy Protection (Version 2.0), Daniel J. Solove, Chris Jay Hoofnagle Jan 2005

A Model Regime Of Privacy Protection (Version 2.0), Daniel J. Solove, Chris Jay Hoofnagle

GW Law Faculty Publications & Other Works

This version incorporates and responds to the many comments that we received to Version 1.1, which we released on March 10, 2005.

Privacy protection in the United States has often been criticized, but critics have too infrequently suggested specific proposals for reform. Recently, there has been significant legislative interest at both the federal and state levels in addressing the privacy of personal information. This was sparked when ChoicePoint, one of the largest data brokers in the United States with records on almost every adult American citizen, sold data on about 145,000 people to fraudulent businesses set up by identity thieves. …


Katrina's Continuing Impact On Procurement - Emergency Procurement Powers In H.R. 3766, Christopher R. Yukins, Joshua I. Schwartz Jan 2005

Katrina's Continuing Impact On Procurement - Emergency Procurement Powers In H.R. 3766, Christopher R. Yukins, Joshua I. Schwartz

GW Law Faculty Publications & Other Works

As Hurricane Katrina relief efforts grow into the billions of dollars, the U.S. Congress is considering additional legislation to liberalize procurement, including H.R. 3766, co-sponsored by Representatives Kenny Marchant and Tom Davis. In these comments on the proposed legislation, Professors Christopher Yukins and Joshua Schwartz asked whether the proposed changes, which would eviscerate competition for most procurement related to disaster relief, are truly necessary. Professor Yukins suggests that, though it might in some circumstances be necessary to dismantle the federal regulatory regime to accommodate a wave of new firms in the federal market, there is too little evidence yet to …


The 'Wildavsky Heuristic': The Cultural Orientation Of Mass Political Opinion, Donald Braman, John Gastil, Dan M. Kahan, Paul Slovic Jan 2005

The 'Wildavsky Heuristic': The Cultural Orientation Of Mass Political Opinion, Donald Braman, John Gastil, Dan M. Kahan, Paul Slovic

GW Law Faculty Publications & Other Works

In a provocative 1987 article, Aaron Wildavsky asserted that culture operates as the fundamental orienting force in the generation of mass public opinion. The meanings and interpersonal associations that inhere in discrete ways of life, he argued, shape the heuristic processes by which politically unsophisticated individuals, in particular, choose what policies and candidates to support. We systematize Wildavsky's theory and integrate it with existing accounts of mass opinion formation. We also present the results of an original national survey (N = 1843), which found that the cultural orientations featured in Wildavsky's writings accounted for policy-related attitudes on gun control, environment, …


The Death Of The Public Forum In Cyberspace, Dawn C. Nunziato Jan 2005

The Death Of The Public Forum In Cyberspace, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

The Internet has been conceptualized as a forum for free expression with near limitless potential for individuals to express themselves and to access the expression of others. But that potential is in danger of being seriously hampered as a result of the privatization of Internet forums for expression. During the Clinton Administration, the government undertook measures to turn over many aspects of the Internet to private entities. The end result of this increased private control is that, in contrast to real space, speech in cyberspace occurs almost exclusively within privately-owned places. The public/private balance that characterizes real space and renders …


Accountability Of State And Non-State Actors For Human Rights Abuses In The 'War On Terror', Laura T. Dickinson Jan 2005

Accountability Of State And Non-State Actors For Human Rights Abuses In The 'War On Terror', Laura T. Dickinson

GW Law Faculty Publications & Other Works

The decisions regarding detainees in the so-called "war on terror" - Hamdi, Padilla, and Rasul - leave a number of questions unresolved. This essay focuses on one question in particular: What happens when terrorists are detained not by U.S. authorities, but by private contractors hired by U.S. authorities? Domestically and internationally, we are seeing an increasing turn to private contractors performing what we might think of as core governmental functions. Accordingly, it is vital to consider to what extent private actors involved in the treatment of detainees in the war on terror can be held accountable for their actions. Although …


Sarbanes-Oxley, Corporate Federalism, And The Declining Significance Of Federal Reforms On State Director Independence Standards, Lisa M. Fairfax Jan 2005

Sarbanes-Oxley, Corporate Federalism, And The Declining Significance Of Federal Reforms On State Director Independence Standards, Lisa M. Fairfax

GW Law Faculty Publications & Other Works

Commentators have argued that the Sarbanes-Oxley Act of 2002 ("Sarbanes-Oxley" or the "Act") raises federalism concerns because it regulates the internal affairs of a corporation, including the composition of, and qualifications for, corporate boards, in a manner traditionally reserved to states. This Article responds to those claims, arguing that the Act reflects a relatively minimal intrusion into state law, particularly with regard to issues of director independence. This Article further argues that the Act's failure to disturb state law on these issues may impede its ability to tighten director independence standards and by extension may undermine its ability to improve …


Sex Discrimination In The Nineties, Seventies Style: Case Studies In The Preservation Of Male Workplace Norms, Michael Selmi Jan 2005

Sex Discrimination In The Nineties, Seventies Style: Case Studies In The Preservation Of Male Workplace Norms, Michael Selmi

GW Law Faculty Publications & Other Works

The prevailing sentiment today is that overt intentional sex discrimination in the workplace has receded substantially and has been replaced by more complicated practices of subtle or structural discrimination often tied to women's family commitments. This article challenges that consensus by exploring the rise of class action sex discrimination cases that have uncovered what ought to be defined as overt intentional discrimination with a design to preserve existing male norms in the workplace. The article analyzes cases that have arisen in the securities and grocery industries, as well as a spate of class action sexual harassment cases, all of which …


The Next Generation Of Transnational/Domestic Constitutional Law Scholarship: A Reply To Professor Tushnet, David Fontana Jan 2005

The Next Generation Of Transnational/Domestic Constitutional Law Scholarship: A Reply To Professor Tushnet, David Fontana

GW Law Faculty Publications & Other Works

In this reply to an article by Professor Mark Tushnet, David Fontana argues that we should move beyond debates about whether transnational law should ever be used in American law, and instead focus on the practical details of how such incorporation will occur. Fontana argues that Professor Tushnet's compelling article overstates the importance of the most recent developments in the use of transnational law as persuasive authority, but that even with the history of moderate usage of transnational law, there are still some unique concerns with using transnational law as persuasive authority. Fontana also argues that Professor Tushnet's discussion of …


International Standards And The Wto, Steve Charnovitz Jan 2005

International Standards And The Wto, Steve Charnovitz

GW Law Faculty Publications & Other Works

This study provides an overview of how the World Trade Organization rules relate to international standards, that is, standards propounded by some international entity. The topic of standards is a cross-cutting issue in the WTO because rules regarding international standards appear in several of the covered WTO agreements. The paper contains several parts. Part I of the paper explores the meaning of the term international standard and adopts a broad definition for analytical purposes. Part II introduces a typology for international standards. Part III discusses why international standards are important to economic development. Part IV examines some of the key …


Law And Accounting: Cases And Materials, Lawrence A. Cunningham Jan 2005

Law And Accounting: Cases And Materials, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

Accounting textbooks for law or business schools invariably provide secondary narrative presentations of materials in the authors' own words. A better approach to learning this subject is to present thematically arranged original accounting pronouncements. The design this innovative book, helps readers appreciate how accounting is a tool that provides conceptual organization to economic exchange. The tool facilitates analyzing legal, business and public policy aspects of the transactions that accounting addresses. The original accounting standards, as well as SEC enforcement actions, presented in this book illuminate why transactions are pursued and related decisions made, economic aspects of transactions, and the conceptual …