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Articles 31 - 60 of 79
Full-Text Articles in Law
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 …
A House Of Cards Falls: Why 'Too Big To Debar' Is All Slogan And Little Substance, Jessica Tillipman
A House Of Cards Falls: Why 'Too Big To Debar' Is All Slogan And Little Substance, Jessica Tillipman
GW Law Faculty Publications & Other Works
“A House of Cards Falls: Why ‘Too Big to Debar’ is All Slogan and Little Substance” is a critical response to the article, "FCPA Sanctions: Too Big to Debar" by Drury D. Stevenson and Nicholas J. Wagoner, which aptly demonstrates a common, yet fundamentally flawed understanding of the FAR 9.4 suspension and debarment regime. "Too Big to Debar" asserts that when large government contractors violate the Foreign Corrupt Practices Act (FCPA), they should be “punished” by being debarred from the procurement system. Indeed, despite FAR 9.4’s clear directive to use debarment only for the purpose of protecting the government, not …
The Necessity Of Tradeoffs In A Properly Functioning Civil Procedure System, Alan B. Morrison
The Necessity Of Tradeoffs In A Properly Functioning Civil Procedure System, Alan B. Morrison
GW Law Faculty Publications & Other Works
No abstract provided.
Brief For Royal Dutch Petroleum Co. Et Al., As Amici Curiae Supporting Respondents, Kiobel V. Royal Dutch Petroleum Co., 132 S.Ct. 1738 (2012) (No. 10-1491)., Bradford R. Clark, Anthony J. Bellia Jr.
Brief For Royal Dutch Petroleum Co. Et Al., As Amici Curiae Supporting Respondents, Kiobel V. Royal Dutch Petroleum Co., 132 S.Ct. 1738 (2012) (No. 10-1491)., Bradford R. Clark, Anthony J. Bellia Jr.
GW Law Faculty Publications & Other Works
No abstract provided.
District Court Review Of Findings Of Fact Proposed By Magistrates: Myth Or Reality, Richard J. Pierce Jr
District Court Review Of Findings Of Fact Proposed By Magistrates: Myth Or Reality, Richard J. Pierce Jr
GW Law Faculty Publications & Other Works
In this essay, Professor Pierce criticizes the decisions in six circuits that forbid a district judge from rejecting a finding of fact proposed by a magistrate without first conducting a new evidentiary hearing. Those decisions are inconsistent with the Magistrates Act of 1968, the 1951 decision of the Supreme Court that authorizes agencies to reject findings of fact made by Administrative Law Judges without conducting a new evidentiary hearing, the consistent findings of empirical studies that a fact-finder’s ability to observe the demeanor of witnesses does not improve the fact-finder’s ability to evaluate the credibility of witnesses, and Articles I …
Dead Contractors: The Un-Examined Effect Of Surrogates On The Public’S Casualty Sensitivity, Steven L. Schooner, Collin D. Swan
Dead Contractors: The Un-Examined Effect Of Surrogates On The Public’S Casualty Sensitivity, Steven L. Schooner, Collin D. Swan
GW Law Faculty Publications & Other Works
Once the nation commits to engage in heavy, sustained military action abroad, particularly including the deployment of ground forces, political support is scrupulously observed and dissected. One of the most graphic factors influencing that support is the number of military soldiers who have made the ultimate sacrifice on the nation’s behalf. In the modern era, most studies suggest that the public considers the potential and actual casualties in U.S. wars to be an important factor, and an inverse relationship exists between the number of military deaths and public support. Economists have dubbed this the "casualty sensitivity" effect.
This article asserts …
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 …
Affirmatively Inefficient Jurisprudence?: Confusing Contractors’ Rights To Raise Affirmative Defenses With Sovereign Immunity, Steven L. Schooner, Pamela Kovacs
Affirmatively Inefficient Jurisprudence?: Confusing Contractors’ Rights To Raise Affirmative Defenses With Sovereign Immunity, Steven L. Schooner, Pamela Kovacs
GW Law Faculty Publications & Other Works
In M. Maropakis Carpentry v. United States, the U.S. Court of Appeals for the Federal Circuit upset the commonly understood rules of practice and procedure for government contracts dispute litigation. In what the Supreme Court might view as a drive-by jurisdictional ruling, the court held that a contractor must file its own claim for time extensions before it can defend against a government claim for liquidated damages. Two Court of Federal Claims cases then confirmed fears that the decision would create a significant, disruptive, and disadvantageous change in procedural posture for a large number of contractors defending against government …
A Visa To "Snitch": An Addendum To Cox And Posner, Eleanor Marie Brown
A Visa To "Snitch": An Addendum To Cox And Posner, 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 …
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 …
Enlightenment Economics And The Framing Of The U.S. Constitution, Renée Lettow Lerner
Enlightenment Economics And The Framing Of The U.S. Constitution, Renée Lettow Lerner
GW Law Faculty Publications & Other Works
Some scholars have argued that the Framers of the U.S. Constitution did not have a common set of views on economics, or that the Constitution, except perhaps in isolated clauses, does not reflect any specific economic views. The principal Framers did, in fact, share a basic set of economic views, though of course they did not agree on all economic questions. Their shared economic views were common to enlightenment thinkers: promoting free trade, curtailing rent-seeking (the transfer of wealth from producers to non-producers through political power), and, in most instances, eliminating monopolies. These economic views permeate the Constitution and are …
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 …
Forward To Festschrift Honoring Chief Judge Rader, Martin J. Adelman
Forward To Festschrift Honoring Chief Judge Rader, Martin J. Adelman
GW Law Faculty Publications & Other Works
This Forward discusses papers that highlight the judicial work of Chief Judge Rader in the field of patent law.
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
Modern Military Justice: Cases and Materials (2012) is a textbook written by Professor Gregory E. Maggs and Associate Dean Lisa Schenck (both of the George Washington University Law School) and published by West (ISBN-13: 9780314268037).
This new textbook 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 …
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 …
The Financial Services Industry's Misguided Quest To Undermine The Consumer Financial Protection Bureau, Arthur E. Wilmarth Jr.
The Financial Services Industry's Misguided Quest To Undermine The Consumer Financial Protection Bureau, Arthur E. Wilmarth Jr.
GW Law Faculty Publications & Other Works
Congress decided to establish the Consumer Financial Protection Bureau (“CFPB”) after concluding that federal bank regulators had utterly failed to protect consumers during the credit boom leading up to the financial crisis. Because of the prudential regulators’ systemic failures, Congress vested CFPB with sole responsibility and clear accountability for protecting consumers of financial services. Title X of the Dodd-Frank Wall Street Reform and Consumer Protection Act delegates broad rulemaking and enforcement powers to CFPB. To insulate CFPB from political influence, Title X grants CFPB substantial autonomy as well as an assured source of funding from the Federal Reserve System.
The …
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 …
Privilege Objections To Grand Jury Subpoenas For Documents, Stephen A. Saltzburg
Privilege Objections To Grand Jury Subpoenas For Documents, Stephen A. Saltzburg
GW Law Faculty Publications & Other Works
Two common privilege claims in limiting grand juries' evidence requests are attorney-client and self-incrimination. This article examines In re Grand Jury Subpoena (Mr. S.), 662 F.3d 65 (1st Cir. 2011) to illustrate the issue of both privileges in a case.
Beginning Testimony With An Overview Witness, Stephen A. Saltzburg
Beginning Testimony With An Overview Witness, Stephen A. Saltzburg
GW Law Faculty Publications & Other Works
This article examines United States v. Moore, 651 F.3d 30 (D.C. Cir. 2011) to illustrate how a court dealt with the prosecutor's use of a summary, or introductory, witness to set forth an overview or outline of a case.
The New Kinship, Naomi R. Cahn
The New Kinship, Naomi R. Cahn
GW Law Faculty Publications & Other Works
Over the past century, the Supreme Court has articulated numerous doctrines that protect family privacy. These doctrines are not, however, well-suited to the brave new world of families formed through donor eggs, sperm, and embryos. As the number of donor-conceived children born to same-sex and heterosexual couples and to single parents increases, and as these families develop connections to one another, the law has not yet adjusted. This Article provides an extensive mapping of these “donor-conceived family communities,” and it reaches two major conclusions that support the development of these new families. First, relational interests, the traditional focus in family …
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; …
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 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 …
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.
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 …
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, …
Foreword To Scholarly Writing: Ideas, Examples, And Execution, Steven L. Schooner
Foreword To Scholarly Writing: Ideas, Examples, And Execution, Steven L. Schooner
GW Law Faculty Publications & Other Works
This foreword recommends the forthcoming second edition of Scholarly Writing: Ideas, Examples, and Execution by Jessica L. Clark and Kristen E. Murray. The book, published by Carolina Academic Press, is a welcome tool and useful resource for students embarking on their scholarly writing endeavors. Having supervised hundreds of LL.M. candidates struggling to complete a thesis, J.D. students attempting to fulfill a scholarly note requirement dominating their second-year law journal experience, and J.D. and LL.M. candidates writing seminar papers or independent research and writing projects, the author encourages students to invest in Scholarly Writing as a helpful and instructive lifeline. The …
The Wto’S Revised Government Procurement Agreement - An Important Milestone Toward Greater Market Access And Transparency In Global Public Procurement Markets, Robert D. Anderson, Steven L. Schooner, Collin D. Swan
The Wto’S Revised Government Procurement Agreement - An Important Milestone Toward Greater Market Access And Transparency In Global Public Procurement Markets, Robert D. Anderson, Steven L. Schooner, Collin D. Swan
GW Law Faculty Publications & Other Works
In December of 2011, the Parties to the World Trade Organization Government Procurement Agreement (GPA) adopted significant revisions to the Agreement. The revised Agreement comprises (a) a much-needed modernization of the text of the Agreement, (b) an expansion of related market-access commitments by the Parties, and (c) a set of Future Work Programs intended to enhance transparency among the Parties and improve the administration of the Agreement. In these unstable economic times, the importance of the GPA and its improvements cannot be overstated.
This article also bemoans the media's misrepresentation of the ongoing process of China's negotiated accession into the …
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 …