Law Commons^™

Court-Agency Dialogue: Article Iii's Dual Nature And The Boundaries Of Reviewability, Emily Hammond

GW Law Faculty Publications & Other Works

Courts reviewing agency actions frequently offer more than a positive analysis of the agencies decisions. They might engage in advice-giving, for example, or emper the remedy as a way of modulating the impact of review. These actions can be used in a dialogic way, to provide normative signals to agencies. Yet because courts must judge agency actions only on the grounds provided by the agency at the time of the agency’s decision — and must ordinarily remand actions that fail to meet substantive standards of review — these normative signals require a delicate touch so as to avoid judicially imposed …

The European Procurement Directives And The Transatlantic Trade & Investment Partnership (T-Tip): Advancing U.S. - European Trade And Cooperation In Procurement, Christopher R. Yukins

GW Law Faculty Publications & Other Works

Regulatory efforts on both sides of the Atlantic, in anti-corruption and procurement, are become more interdependent, as the two systems, U.S. and European, evolve in parallel. That convergence continued as the European Union finalized its new directives on procurement, and the United States and Europe moved forward in negotiating a comprehensive free trade agreement, the Transatlantic Trade and Investment Partnership (T-TIP), which would (among other things) address barriers to trade in procurement. This piece reviews the T-TIP agreement’s potential impact on procurement, in the near and long term. The European T-TIP negotiators are likely to demand greater access to sub-central …

Inconsistent Jury Verdicts, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

This article examines United States v. Moran-Toala, 726 F.3d 334 (2d Cir. 2013), to illustrate what happens when a trial judge explicitly instructs a jury that its verdict need not be consistent.

Denying The Significance Of Race, Cynthia Lee

GW Law Faculty Publications & Other Works

In this book chapter, published in TRAYVON MARTIN, RACE, AND AMERICAN JUSTICE: WRITING WRONG (Sense Publishers 2014), Cynthia Lee analyzes the George Zimmerman trial from a critical race perspective. She analyzes why all the major legal decision makers associated with the Trayvon Martin case (judge, prosecution and defense team) were so eager to deny the significance of race. She posits that they either sincerely believed the case had nothing to do with race or thought it improper or strategically disadvantageous to acknowledge that race was relevant. The judge wanted to run a colorblind trial. The defense did not want the …

Emerging Policy And Practice Issues, Steven L. Schooner, David Berteau

GW Law Faculty Publications & Other Works

This paper, presented at the West Government Contracts Year in Review Conference (covering 2013), attempts to identify the key trends and issues in U.S. federal procurement for 2013. Consistent with prior practice, this chapter offers extensive coverage of the federal procurement spending trend and attempts to predict what lies ahead. Budgetary and financial insecurity were less significant last year, but there is no question that the spending reduction represents a meaningful change in the long-term trend. More broadly, the paper discusses agency purchasing data (particularly at the Defense Department), grants spending and major changes in uniform guidance, the continued Defense …

Musical Work Copyright For The Era Of Digital Sound Technology: Looking Beyond Composition And Performance, Robert Brauneis

GW Law Faculty Publications & Other Works

For over 150 years, federal copyright law in the United States reflected and reinforced the model ofmusic as a two-stage art of composition and performance. Copyright protected scores, the stable, visually perceptible result of the deliberative activity of composition. It did not protect performances, theevanescent, unrepeatable, purely aural realizations of scores. Even as protection was extended tomusical sound recordings, copyright law has maintained a strong distinction between composition andperformance. In the last several decades, however, developments in sound technologies and their uses by musicians and listeners have substantially undermined that distinction. Written notation often no longer figures in any stage …

Merger Control Procedures And Institutions: A Comparison Of The Eu And Us Practice, William E. Kovacic

GW Law Faculty Publications & Other Works

The objective of this paper is to discuss and compare the role that different constituencies play in US andEU procedures for merger control. We describe the main constituencies (both internal and external) involved in merger control in both jurisdictions and discuss how a typical merger case would be handled under these procedures. At each stage, we consider how the procedure unfolds, which parties are involved, and how they can affect the procedure. Our discussion reveals a very different ecology. EU andUS procedures differ in terms of their basic design and in terms of the procedures that are naturally associated with …

Proper And Improper Use Of Other Act Evidence, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

This article examines a case, United States v. Richards, 719 F.3d 746 (7th Cir. 2013), to illustrate how a prosecutor succeeded in having other act evidence admitted, obtained a conviction, and lost it on appeal. The appellate court ruled that the prosecutor erred in making a propensity argument in violation of Federal Rule of Evidence 404(b).

First Amendment Values For The Internet, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

In May 2014, the Federal Communications Commission (FCC), on the ropes from two adverse D.C. Circuit decisions, proposed the latest in a series of regulations of broadband providers--the entities that serve as the gatekeepers for all content, applications, and services on the Internet. While in recent years the FCC has sought to regulate broadband providers to impose on them the duty not to discriminate against any of the traffic flowing through their pipes, in these latest Proposed Rules--in response to the recent D.C. Circuit decision Verizon v. FCC--the FCC has sought to enable broadband providers to discriminate in favor …

The Beginning Of The End Of Internet Freedom, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

Although the Internet was initially viewed as a medium for expression in which censorship would be impossible to implement, recent developments suggest exactly the opposite. Countries around the world--democracies as well as dictatorships--have implemented nationwide filtering systems that are changing the shape of Internet freedom. In addition to usual suspects like China, liberal democracies such as the United Kingdom and Australia have taken steps to implement nationwide Internet filtering regimes. In 2013, United Kingdom Prime Minister David Cameron announced a plan to require mandatory “family friendly” default filtering of all Internet access by the end of 2014. While such Internet …

I’M Still Dancing: The Continued Efficacy Of First Amendment Precedent And Values For New-School Regulation, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

This response essay reflects on the meaning of two foundational First Amendment decisions: New York Times Co. v. Sullivan — characterized by Harry Kalven, Jr., as “an occasion for dancing in the streets”— which imposed limits on public officials’ recovery for defamation, and New York Times Co. v. United States, which reaffirmed the central First Amendment principle against prior restraints. Professor Jack Balkin characterizes these decisions as responses to “old-school speech regulation . . . [in which] the state had used penalties and injunctions directed at speakers and publishers in order to control and discipline their speech.” But, Balkin observes, …

§ 9:9 Authenticating Email, Social Media, Web Pages, Text Messages, Instant Messaging, Electronic Signatures, Laird Kirkpatrick

GW Law Faculty Publications & Other Works

A particularly difficult evidentiary problem facing courts today is the proper standard for the authentication of electronic evidence or social media, such as emails, web pages, text messages, instant messaging and electronic signatures. This article analyzes the court decisions addressing these issues.

Comparative Law Study And Analysis Of National Legislation Relating To Crimes Against Humanity And Extraterritorial Jurisdiction, Arturo J. Carrillo, Annalise Nelson

GW Law Faculty Publications & Other Works

This report has three main objectives. The first is to conduct a rigorous quantitative survey of national legislation worldwide to determine the extent to which States have prohibited crimes against humanity (CAH) under domestic law. The second is to engage in a limited but illustrative qualitative analysis of CAH laws where they do exist. And finally, for those States identified as having per se CAH legislation, this report seeks to establish the extent to which it is paired with the extraterritorial jurisdiction provisions necessary to make the CAH norms most effective.

Our report concludes that the prevailing panorama of domestic …

Green Subsidies And The Wto, Steve Charnovitz

GW Law Faculty Publications & Other Works

This paper provides a detailed explanation how the law of the World Trade Organization regulates environmental subsidies with a focus on renewable energy subsidies. The paper begins by discussing the economic justifications for such subsidies and the criticisms of them and then gives examples of different categories of subsidies. Next the paper provides an overview of the relevant WTO rules and caselaw, including the recent Canada-Renewable Energy case. The paper also makes specific recommendations for how WTO law can be improved, and discusses the existing literature discussing reform proposals. The study further finds that because of a lack of clarity …

The Failure Of Originalism In Preserving Constitutional Rights To Civil Jury Trial, Renée Lettow Lerner

GW Law Faculty Publications & Other Works

The Federal Bill of Rights and state constitutions rely heavily on procedural protections, especially jury rights. Supporters of these rights at the founding praised the jury in extravagant terms, and many members of the legal profession continue to do so today. Yet civil and criminal jury trials are vanishing in the United States. The disappearance of the civil jury presents a puzzle because the Seventh Amendment and state constitutional rights require that civil jury trial be “preserved” or “remain inviolate.”

Scholarship on the history of constitutional rights to civil jury trial has tended to focus exclusively on the Seventh Amendment, …

Probate Law Meets The Digital Age, Naomi R. Cahn

GW Law Faculty Publications & Other Works

This Article explores the impact of federal law on a state fiduciary’s management of digital assets. It focuses on the lessons from the Stored Communications Act (“SCA”), initially enacted in 1986 as one part of the Electronic Communications Privacy Act. Although Congress designed the SCA to respond to concerns that Internet privacy posed new dilemmas with respect to application of the Fourth Amendment’s privacy protections, the drafters did not explicitly consider how the SCA might affect property management and distribution. The resulting uncertainty affects anyone with an email account.

While existing trusts and estates laws could legitimately be interpreted to …

Narrow Banking As A Structural Remedy For The Problem Of Systemic Risk: A Comment On Professor Schwarcz's Ring-Fencing, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

In a recent article, Professor Steven Schwarcz describes the concept of "ring-fencing" as a "potential regulatory solution to problems in banking, finance, public utilities, and insurance." Ring-fencing has gained particular prominence in recent years as a strategy for limiting the systemic risk of large financial conglomerates (also known as "universal banks"). Professor Schwarcz’s article describes several ring-fencing plans that have been adopted or proposed in the United States, the United Kingdom, and the European Union.

This Comment argues that "narrow banking" is a highly promising ring-fencing remedy for the risks created by universal banks. As the Comment explains, narrow banking …

Indiana Journal Of Law And Social Equality, Michael Selmi

GW Law Faculty Publications & Other Works

This essay reviews the Obama Administration’s civil rights record during its first Administration, with a particular focus on theCivil Rights Division of the Department of Justice and the Equal Employment Opportunity Commission (“EEOC”). The review finds that although the Obama Administration has generally been supportive of progressive causes, particularly in the Supreme Court and among issues relating to gay men and lesbians, its enforcement activities have generally been quite limited. On a quantitative basis, the Obama Administration’s civil rights enforcement typically fall at the same or below levels of the prior BushAdministration, and with a few exceptions (mortgage discrimination and …

In The Civic Republic: Crime, The Inner City, And The Democracy Of Arms—Being A Disquisition On The Revival Of The Militia At Large, Robert J. Cottrol, Raymond T. Diamond

GW Law Faculty Publications & Other Works

This Article examines the modern utility of the Second Amendment’s guarantee of “the right to keep and bear arms” in light of the phenomenon of modern crime, particularly black-on-black violence in urban America. Although many advocates of gun control have argued that crime in modern cities is a reason for modifying or severely truncating the right to have arms, the Authors argue that the right to have arms and the Second Amendment’s notion of a universal militia can be the basis of a new partnership between police and citizens in urban America. This new partnership can, if properly developed, be …

A Two-Tiered System Of Regulation Is Needed To Preserve The Viability Of Community Banks And Reduce The Risks Of Megabanks, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

The financial crisis of 2007-2009 and its aftermath have accelerated a consolidation trend that has transformed the U.S. banking system during the past three decades. During that period, the number of community banks and their share of the banking industry’s assets have fallen by more than half, while the largest banks have captured much of the industry’s assets. In responding to the financial crisis, the federal government encouraged further consolidation by adopting extraordinary assistance programs and forbearance measures designed to ensure the survival of the biggest institutions. In contrast, federal officials gave little help to community banks and subjected them …

A Concise Guide To Using Dictionaries From The Founding Era To Determine The Original Meaning Of The Constitution, Gregory E. Maggs

GW Law Faculty Publications & Other Works

This Article explains how dictionaries published in the Founding Era may provide evidence of the original meaning of the Constitution. In addition, the Article identifies and discusses six potential problems with relying on definitions from these dictionaries, and cautions that these potential problems must be considered when using Founding Era dictionaries either to make claims about the Constitution’s original meaning or to evaluate claims about original meaning made by others. Finally, the Article includes an Appendix describing nine English language dictionaries and four legal dictionaries from the Founding Era that the Supreme Court has cited in constitutional cases, and indicates …

The Limitation On Exclusion Of Extrinsic Evidence, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

This article mainly examines United States v. Delgado-Marrero, 744 F.3d 167 (1st Cir. 2014), to illustrate the difficulty courts still have when considering Federal Rule of Evidence 608(b)'s ban on extrinsic evidence. The prosecutor's other arguments are also examined under Federal Rules of Evidence 403 and 404(b)(1).

Table Of Mimetic Influences Related To Steve Charnovitz, “What The World Trade Organization Learned From The Ilo,” In Adelle Blackett & Anne Trebilcock Eds., Research Handbook On Transnational Labour Law (Edward Elgar, Forthcoming 2015), Steve Charnovitz

GW Law Faculty Publications & Other Works

This table shows how the features of the ILO complaint procedures originating in 1919 became a model for the dispute settlement procedures written into the Charter of the International Trade Organization (ITO) in 1948 and the Dispute Settlement Understanding of the World Trade Organization.

Gifts, Hospitality & The Government Contractor, Jessica Tillipman

GW Law Faculty Publications & Other Works

The government procurement process demands the highest commitment to ethical and unbiased conduct. To ensure that the individuals involved in the procurement process adhere to these standards, government entities in nearly all jurisdictions around the world have enacted codes of conduct, ethical restrictions, and anti-corruption laws designed to protect the integrity of government and ensure that government officials act impartially and do not give preferential treatment to any private organization or individual. To further these goals, most jurisdictions have enacted restrictions on the gifts and hospitality that government officials may accept from individuals and organizations that sell goods and services …

Duty To Rescue? Exploring Legal Analysis Through The Lens Of Photojournalists’ Storytelling Dilemmas, Iselin Magdalene Gambert

GW Law Faculty Publications & Other Works

In depicting scenes of tragedy, what happens when photojournalists become the story? Do photojournalists have a duty to rescue those they photograph? Should they? This article will use a series of iconic images – and the stories of the photojournalists behind the camera – to illustrate how exploring these questions can be a provocative vehicle through which to engage new law students in legal writing and analysis. The article focuses on an exercise that centers around a fictional “Duty to Rescue” statute modeled after European statutes of the same kind. The exercise is anchored by four images – three still …

Informing The Debate About Sexual Assault In The Military Services: Is The Department Of Defense Its Own Worst Enemy?, Lisa M. Schenck

GW Law Faculty Publications & Other Works

In 2013, the Department of Defense (DoD) published its Annual Report on Sexual Assault in the Military Fiscal Year (FY) 2012, reflecting an increase in the number of sexual assaults on military personnel (extrapolated from survey responses) from 19,000 in FY 2011 to 26,000 in FY 2012. The report also provided that in FY 2012, 302 sexual assault courts-martial occurred with only 238 military personnel convicted of sexual assaults committed on military victims, resulting in an alleged conviction rate of less than 1%. Using inflammatory language and misleading statistics, some attacked the prosecution and conviction rates in the military services. …

Sex Offenses Under Military Law: Will The Recent Changes In The Uniform Code Of Military Justice (Ucmj) Re-Traumatize Sexual Assault Survivors In The Courtroom?, Lisa M. Schenck

GW Law Faculty Publications & Other Works

In 2013, the President, Secretary of Defense, and members of Congress responded with shock and outrage to perceptions of increased sex assaults committed by military personnel upon other military personnel. Politicians are considering a variety of changes to substantive and procedural criminal law to make prosecution of such offenses more effective. This Article evaluates substantive military criminal law, UCMJ art. 120, 10 U.S.C. § 920, and Military Rules of Evidence 404(a) and 405(c). Drawing on lessons learned from state and federal laws, the Article then makes recommendations regarding statutory changes in military criminal sexual assault and procedural statutes. Specifically, the …

Book Review: The Invisible Soldiers: How America Outsourced Our Security By Ann Hagedorn, Steven L. Schooner

GW Law Faculty Publications & Other Works

This review discusses Ann Hagedorn's book, which addresses the post-millennial proliferation of arms-bearing contractors that has roiled the human rights community and catalyzed a global conversation about the nature and future of modern warfare. Hagedorn’s perspective and insights on arms bearing contractors, democracies, and empires—intensely personal, yet thoughtfully cognizant of policy, political theory, and philosophy—should interest readers new to the field, as well as those well versed in the issues. Outsourcing the use of force is sufficiently important to the future of democratic states that this book—as well as the growing corpus of literature it adds to—merits serious contemplation.

Prizes! Innovating, Risk Shifting, And Avoiding Contracts And Grants, Steven L. Schooner, Nathaniel E. Castellano

GW Law Faculty Publications & Other Works

This short piece introduces prizes (or prize contests), which have become the darling of the Obama administration. Public managers increasingly find prizes more attractive than the more conventional and heavily regulated vehicles that they replace, contracts and grants. The paper explains some of the advantages of this increasingly popular approach and signals a cautionary note, particularly to contestants. Unfortunately, the government has not yet provided a straightforward means for contestants to obtain meaningful review if and when disputes arise. Accordingly, the authors suggest that, while shifting risk to the private sector is fair game, contest-sponsoring agencies should respect the private …

(E)Racing Trayvon Martin, Cynthia Lee

GW Law Faculty Publications & Other Works

In this essay, Cynthia Lee celebrates the 25th anniversary of Critical Race Theory (CRT) by writing about the pitfalls of the ideal of colorblindness. She starts by analyzing Devon Carbado's seminal article on CRT and the Fourth Amendment, (E)Racing the Fourth Amendment. She focuses on Carbado's critique of Justice Sandra Day O'Connor's embrace of colorblindness in Florida v. Bostick, the case in which the Supreme Court modified the test for a seizure of the person. Lee uses Carbado's article as a springboard for critiquing the embrace of colorblindness by legal decision-makers involved in George Zimmerman's 2013 murder trial. Zimmerman …