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Articles 1 - 30 of 79
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 …
Holocaust-Era Claims In The 21st Century: Hearing Before The S. Comm. On The Judiciary, 112th Cong., June 20, 2012 (Statement Of Edward T. Swaine, Professor Of Law, Gw Law School), Edward T. Swaine
GW Law Faculty Testimony Before Congress & Agencies
No abstract provided.
Women In The Post-Conflict Process: Reviewing The Impact Of Recent U.N. Actions In Achieving Gender Centrality, Naomi R. Cahn
Women In The Post-Conflict Process: Reviewing The Impact Of Recent U.N. Actions In Achieving Gender Centrality, Naomi R. Cahn
GW Law Faculty Publications & Other Works
The post-conflict terrain provides multiple opportunities for transformation on many different levels: protecting civilians, providing accountability for human rights violations committed during hostilities, reforming local and national laws, reintegrating soldiers, rehabilitating and providing redress for victims, establishing or re-establishing the rule of law, creating human rights institutions and new governance structures, altering cultural attitudes, improving socioeconomic conditions, and transforming gender roles and women’s status. This Article explores the effort to make gender central in the various legal and political regimes and processes in operation post-conflict, and specifically reviews SCR 1325 and its successor resolutions to assess their real contributions towards …
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 …
Behavioral Economics: Implications For Regulatory Behavior, William E. Kovacic, James C. Cooper
Behavioral Economics: Implications For Regulatory Behavior, William E. Kovacic, James C. Cooper
GW Law Faculty Publications & Other Works
Behavioral economics (BE) examines the implications for decision-making when actors suffer from biases documented in the psychological literature. This article considers how such biases affect regulatory decisions. The article posits a simple model of a regulator who serves as an agent to a political overseer. The regulator chooses a policy that accounts for the rewards she receives from the political overseer — whose optimal policy is assumed to maximize short-run outputs that garner political support, rather than long-term welfare outcomes — and the weight the regulator puts on the optimal long run policy. Flawed heuristics and myopia are likely to …
Codification, Progressive Development, Or Scholarly Analysis? The Art Of Packaging The Ilc's Work Product, Sean D. Murphy
Codification, Progressive Development, Or Scholarly Analysis? The Art Of Packaging The Ilc's Work Product, Sean D. Murphy
GW Law Faculty Publications & Other Works
Over its life, the U.N. International Law Commission has developed various ways of “packaging” its work product. Multiple techniques are available for balancing the Commission’s roles in advancing the codification and progressive development of international law – choices about the format of the project, about how to characterize the project in the associated commentary, and about the recommendation to the U.N. General Assembly on what should be done with the completed project. While creative use of such techniques to suit the particular topics on the Commission’s agenda is to be welcomed, the Commission’s authority and legacy ultimately will turn on …
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 …
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 …
The Crime Of Aggression At The Icc, Sean D. Murphy
The Crime Of Aggression At The Icc, Sean D. Murphy
GW Law Faculty Publications & Other Works
In May 2012, Liechtenstein became the first State to ratify amendments to the Rome Statute of the International Criminal Court (ICC) that seek to activate the Court’s jurisdiction over the crime of aggression. The amendments, which were adopted by consensus at the ICC Review Conference that met in Kampala, Uganda, in 2010, establish definitions for “act of aggression” and “crime of aggression,” and provide the Court with jurisdiction even in the absence of a referral from the Security Council. At the same time, the States Parties decided that the ICC’s jurisdiction over this crime will not become operative until at …
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 …
Modern Military Justice: Cases And Materials, Gregory E. Maggs, Lisa M. Schenck
Modern Military Justice: Cases And Materials, Gregory E. Maggs, Lisa M. Schenck
GW Law Faculty Publications & Other Works
This new textbook (ISBN-13: 978-0314268037) comprehensively covers the modern military justice system under the Uniform Code of Military Justice. Materials from every service within the Armed Forces show how the military justice system addresses all criminal offenses, ranging from minor infractions to serious offenses, such as the misconduct of soldiers at Abu Ghraib prison. The text covers the jurisdiction of courts-martial; sources of military law; military offenses and defenses; pretrial, trial, and appellate procedures; the role of judge advocates; nonjudicial punishment and other alternatives to courts-martial; special forums, such as boards of inquiry and military commissions for trying enemy belligerents; …
The Merger Agreement Myth, Jeffrey Manns, Robert Anderson
The Merger Agreement Myth, Jeffrey Manns, Robert Anderson
GW Law Faculty Publications & Other Works
Practitioners and academics have long assumed that financial markets value the deal-specific legal terms of public company acquisition agreements, yet legal scholarship has failed to subject this premise to empirical scrutiny. The conventional wisdom is that markets must value the tremendous amount of time and money invested in negotiating and tailoring the legal provisions of acquisition agreements to address the distinctive risks facing each merger. But the empirical question remains of whether markets actually price the legal terms of acquisition agreements or whether they solely value the financial terms of mergers. To investigate this question, we designed a modified event …
Insuring Against A Derivative Disaster: The Case For Decentralized Risk Management, Jeffrey Manns
Insuring Against A Derivative Disaster: The Case For Decentralized Risk Management, Jeffrey Manns
GW Law Faculty Publications & Other Works
This Article makes the case for a decentralized risk management strategy for identifying and defusing future bubble markets. It suggests how the government can enlist private "gatekeeper guarantors" to provide integrated insurance and monitoring roles to complement the government’s management of systemic risks. It proposes the enactment of a federal mandate that systemically significant financial entities (or participants in systemically significant financial sectors) secure private guarantees to cover a percentage of their potential liabilities (above a loss threshold). Gatekeeper guarantors would act as “circuit breakers” of systemic risk by serving as self-interested monitors of risk taking and tying clients’ coverage …
The Rise Of Institutional Law Practice, Thomas D. Morgan
The Rise Of Institutional Law Practice, Thomas D. Morgan
GW Law Faculty Publications & Other Works
For generations, the legal profession has assumed that only individual lawyers practice law. Ethical standards have been largely, if not exclusively, directed at individuals, and practice organizations have been regulated to prevent limiting individual lawyer professional judgment. The world in which lawyers now practice makes the individualized model obsolete. The complexity of modern law narrows the breadth of any individual lawyer's practice and makes law firms and other practice organizations inevitable. Firms, in turn, must maintain both ethical compliance and a high level of service quality that is inconsistent with lawyers behaving idiosyncratically. The article explores these developments and suggests …
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.
Governance Of Public Lands, Public Agencies, And Natural Resources, Robert L. Glicksman
Governance Of Public Lands, Public Agencies, And Natural Resources, Robert L. Glicksman
GW Law Faculty Publications & Other Works
Climate change presents serious challenges to the agencies that manage the federal public lands. These changes require new management strategies that may be difficult to design and implement because of internal agency resistance to altering traditional ways of doing business. In addition, there is likely to be a lack of fit between some of the laws from which the agencies derive their management authority and the problems posed by climate change, which differ from those Congress envisioned when it adopted those laws and which undermine some of the key assumptions underpinning those laws. This chapter describes the manner in which …
Outpost Years For A Start-Up Agency: The Ftc From 1921-1925, William E. Kovacic, Marc Winerman
Outpost Years For A Start-Up Agency: The Ftc From 1921-1925, William E. Kovacic, Marc Winerman
GW Law Faculty Publications & Other Works
The challenges and questions surrounding the design of a competition system are part of an identifiable life cycle that characterizes the development of a competition agency. The core challenges are to set priorities and execute them, but there are various potential obstacles. This article looks at the FTC’s experiences in its first decade, a period bringing extraordinary technological dynamism that reshaped the U.S. economy and transitions in political leadership, to shed light on how a new or reformed agency might go about facing predictable problems in its first years and to suggest how these agencies can improve their effectiveness.
New …
Romeo And Juliet Online And In Trouble: Criminalizing Depictions Of Teen Sexuality, Dawn C. Nunziato
Romeo And Juliet Online And In Trouble: Criminalizing Depictions Of Teen Sexuality, Dawn C. Nunziato
GW Law Faculty Publications & Other Works
As teenagers explore their sexuality and seek to memorialize and exchange information related to their sexual development, their instantaneous ability to memorialize and share images with others, via cell phones or the Internet, presents a host of new problems to which our society must respond intelligently. The recent trend of harshly punishing these teens under the child pornography regime is not an intelligent solution. In light of this wave of prosecutorial overreaching, state and federal child pornography laws should be revised to specifically exempt sexting by minors from the reach of such laws. Child pornography laws were created to punish …
The Restatement's Supersized Duty Of Loyalty Provision, Michael Selmi
The Restatement's Supersized Duty Of Loyalty Provision, Michael Selmi
GW Law Faculty Publications & Other Works
This essay analyzes and critiques the Restatement of Employment Law’s provision on the duty of loyalty. Cases invoking the duty of loyalty have generally been successful only in the limited circumstance when an employee leaves her current employment to start a competing business. The Restatement, however, reconceptualizes the duty of loyalty claim into a catch all provision that could be used to restrain employees from moving to competitors, even in the absence of a noncompete agreement, and to protect trade secrets or confidential information. The expansion of the duty of loyalty cause of action is unsupported by either the existing …
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 …
From Start To Finish: A Historical Review Of Nuclear Arms Control Treaties And Starting Over With The New Start, Lisa M. Schenck, Robert A. Youmans
From Start To Finish: A Historical Review Of Nuclear Arms Control Treaties And Starting Over With The New Start, Lisa M. Schenck, Robert A. Youmans
GW Law Faculty Publications & Other Works
This article provides a historical review of nuclear arms control agreements from 1925 to 2011, describing how these agreements helped diminish the nuclear arms threat and build up. As this article explains, nuclear arms control agreements can be segmented into distinct periods reflecting different approaches to the nuclear arms threat, with each stage addressing different focused objectives. As negotiations evolved throughout history, the United States and Soviet Union undertook a nuclear arms race, each striving to gain a military advantage over the other by building more and more nuclear weapons and the means to deliver them. Accordingly, a debate evolved …
Matching Political Contributions, Spencer A. Overton
Matching Political Contributions, Spencer A. Overton
GW Law Faculty Publications & Other Works
Traditional public financing of campaigns is in trouble. Successful candidates have increasingly rejected public financing because it provides inadequate funding and limits candidate spending. November 2012 was the first general election in which presidential candidates from both major parties rejected public financing since the inception of the program. The U.S. Supreme Court recently issued a decision that undermined traditional public financing systems. If existing programs are not revamped soon public financing may be off the public radar for decades, as budget deficits make antiquated public financing programs ripe targets for spending cuts. This Essay proposes a paradigm shift. Public financing …
Commitment Bonds, Michael B. Abramowicz, Ian Ayres
Commitment Bonds, Michael B. Abramowicz, Ian Ayres
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 Polarizing Impact Of Science Literacy And Numeracy On Perceived Climate Change Risks, Donald Braman, Dan M. Kahan, Ellen Peters, Maggie Wittlin, Paul Slovic, Lisa Larrimore Ouellette, Gregory N. Mandel
The Polarizing Impact Of Science Literacy And Numeracy On Perceived Climate Change Risks, Donald Braman, Dan M. Kahan, Ellen Peters, Maggie Wittlin, Paul Slovic, Lisa Larrimore Ouellette, Gregory N. Mandel
GW Law Faculty Publications & Other Works
Seeming public apathy over climate change is often attributed to a deficit in comprehension. The public knows too little science, it is claimed, to understand the evidence or avoid being misled. Widespread limits on technical reasoning aggravate the problem by forcing citizens to use unreliable cognitive heuristics to assess risk. An empirical study found no support for this position. Members of the public with the highest degrees of science literacy and technical reasoning capacity were not the most concerned about climate change. Rather, they were the ones among whom cultural polarization was greatest. This result suggests that public divisions over …
Downgrading Rating Agency Reform, Jeffrey Manns
Downgrading Rating Agency Reform, Jeffrey Manns
GW Law Faculty Publications & Other Works
The Dodd-Frank Act promised to usher in sweeping changes to overhaul the rating agency industry whose shortcomings helped to pave the way to the financial crisis. But two years after the Act’s passage, hopes have given way to disappointment. The most important challenges of how to enhance rating agency competition, accuracy, and accountability remain largely open questions. The Securities & Exchange Commission (SEC) has made progress in heightening rating agency oversight and addressing the most egregious abuses that fueled the financial crisis. But rating agency reforms have fallen far short of their potential due to the Act’s competing objectives to …
Reasonableness With Teeth: The Future Of Fourth Amendment Reasonableness Analysis, Cynthia Lee
Reasonableness With Teeth: The Future Of Fourth Amendment Reasonableness Analysis, Cynthia Lee
GW Law Faculty Publications & Other Works
This essay assesses the past, the present, and the future of Fourth Amendment reasonableness analysis. Part I focuses on the past. For much of the twentieth century, the Court embraced what is called the warrant preference view of the Fourth Amendment under which a search was considered reasonable if the government obtained a search warrant prior to the search or an exception to the warrant requirement applied. Part II focuses on the present. Even though it still treats as reasonable both searches conducted pursuant to a warrant and searches that fall within a well established exception to the warrant requirement, …
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.
The Right To Strike And Its Possible Conflict With Other Fundamental Rights Of The People In The United States, Charles B. Craver
The Right To Strike And Its Possible Conflict With Other Fundamental Rights Of The People In The United States, Charles B. Craver
GW Law Faculty Publications & Other Works
Although the right to strike is not constitutionally protected in the U.S., it is protected for private sector workers under Section 7 of the National Labor Relations Act as concerted activity for mutual aid and protection. Federal employees and most state and local government employees do not have the right to strike, but several states permit work stoppages by non-essential personnel. Most collective bargaining agreements contain no-strike clauses forbidding work stoppages during the term of such contracts. Sympathy strikes by private sector workers supporting strikes by employees bargaining over new contract terms are usually protected as concerted activity for mutual …
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 …