Law Commons^™

A Brief Illustrated Chronicle Of Retroactive Copyright Term Extension, Robert Brauneis

GW Law Faculty Publications & Other Works

At least since the Supreme Court’s 2003 decision in Eldred v. Ashcroft, it has been widely known that whenever Congress has extended copyright term, it has done so retroactively, granting the benefit of the extension to all works still under copyright on the effective date of the extension. However, I have never found succinct, complete tables and charts detailing the periods during which works received various copyright terms given the retroactive effect of all extension legislation. It is the modest aim of this article to provide that information, and to provide some examples of the operation of retroactive term extension. …

Cryptoinsurance, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

The sharing economy has begun to make inroads in finance. Peer-to-peer lending is growing substantially in volume and in academic attention, though it remains less than a rounding error in comparison to more traditional sources of loans. Meanwhile, Congress passed the Jumpstart Our Business Startups ("JOBS") Act, which directed the Securities and Exchange Commission ("SEC") to create regulations allowing crowdfunding in at least some circumstances. The SEC, as of yet, has published only proposed rules, ignoring a congressional deadline, but state regulators have begun to create their own rules for intrastate crowdfunding. Yet, one area of finance has resisted even …

First Report Of The Special Rapporteur On Crimes Against Humanity, Sean D. Murphy

GW Law Faculty Publications & Other Works

In the field of international law, three core crimes generally make up the jurisdiction of international criminal tribunals: war crimes; genocide; and crimes against humanity. Only two of these crimes (war crimes and genocide) are the subject of a global treaty that requires States to prevent and punish such conduct and to cooperate among themselves toward those ends. By contrast, there is no such treaty dedicated to preventing and punishing crimes against humanity.

Yet crimes against humanity may be more prevalent than either genocide or war crimes. Such crimes may occur in situations not involving armed conflict and do not …

Food And Condiments For The Twenty-First Century: Business, Science, And Policy, Lewis D. Solomon

GW Law Faculty Publications & Other Works

We are in the midst of a paradigm shift in the food industry. People are more closely examining the impact of food not only on their health and wellness but also on the environment. Some are also concerned about the relationship between food and animal welfare as well as resource scarcities. Big food conglomerates face competition from upstart rivals. The for-profit companies profiled in this work, Nu-tek Food Science, Lyrical Foods, Hampton Creek, Beyond Meat, Impossible Foods, Modern Meadow, and Rosa Labs, are leading the reinvention of condiments and food. Although picking winners and also-rans represents a difficult endeavor, some …

An International Legal Framework For Se4all: Human Rights And Sustainable Development Law Imperatives, Robert L. Glicksman

GW Law Faculty Publications & Other Works

Governments around the world recognize the link between human development and access to safe, secure, and affordable sources of energy. Nevertheless, many people have access to only rudimentary and inadequate energy sources, depriving them of opportunities for economic development and creating serious health risks. Even in countries in which access to energy services is adequate, the provision of those services has both health and environmental effects. In particular, the production of energy using fossil fuels generates greenhouse gases that contribute significantly to climate disruption, which is likely to create disproportionate risks to the same undeveloped nations already suffering from a …

The Identification Of Customary International Law And Other Topics: The Sixty-Seventh Session Of The International Law Commission, Sean D. Murphy

GW Law Faculty Publications & Other Works

The International Law Commission held its sixty-seventh session in Geneva from May 4 to June 5, and from July 6 to August 7, 2015, under the chairmanship of Narinder Singh (India). Notably, the Commission’s drafting committee completed a full set of sixteen draft conclusions on the topic of “identification of customary international law,” paving the way for those conclusions with commentaries to be approved by the Commission on first reading in 2016.

Additionally, the Commission provisionally adopted with commentaries initial draft guidelines on “protection of the atmosphere” and initial draft articles on “crimes against humanity,” as well as one further …

Moving Targets: Obergefell, Hobby Lobby, And The Future Of Lgbt Rights, Ira C. Lupu

GW Law Faculty Publications & Other Works

The recognition of marriage equality in Obergefell v. Hodges, just one year after Burwell v. Hobby Lobby Stores, Inc. broadened the law of religious freedom, highlights the potential collision course of these movements. This paper is an attempt to navigate the waters where such a collision is most likely. As LGBT rights grow, the choice between generic religious privilege, typified by the Religious Freedom Restoration Act (RFRA), and specific religious accommodations, such as the treatment of religious non- profits in federal law, will define the terms of the conflict. Part I addresses current federal law, and focuses on the extent …

The Return Of Lochner, Thomas Colby, Peter J. Smith

GW Law Faculty Publications & Other Works

For a very long time, it has been an article of faith among liberals and conservatives alike that Lochner v. New York was obviously and irredeemably wrong. Lochner is one of only a few cases that constitute our “anticanon,” universally reviled by the legal community as the “worst of the worst.” Our first claim in this Article is that the orthodoxy in modern conservative legal thought about Lochner is on the verge of changing. We believe that conservatives are ready, once again, to embrace Lochner— although perhaps not in name—by recommitting to some form of robust judicial protection for economic …

Coercive Vs. Cooperative Enforcement: Effect Of Enforcement Approach On Environmental Management, Robert L. Glicksman, Dietrich Earnhart

GW Law Faculty Publications & Other Works

A spirited debate explores the comparative merits of two different approaches to the enforcement ofregulatory law: the coercive approach, which emphasizes the deterrence of noncompliance throughinflexibly imposed sanctions, and the cooperative approach, which emphasizes the inducement of com-pliance through flexibility and assistance. Both scholarly and policymaking communities are interestedin this topic of enforcement approach within the realms of finance, tax compliance, occupational safety,food and drug safety, consumer product safety, and environmental protection. To inform this debate,our study explores enforcement of environmental protection laws where the debate has been especiallyspirited yet lacking in much empirical evidence. Specifically our study empirically analyzes …

Autonocoin: A Proof-Of-Belief Cryptocurrency, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

This paper proposes a self-governing cryptocurrency, dubbed Autonocoin. Cryptocurrency owners play formal tacit coordination games by making investments recorded on the block chain. Such investments represent bets about the focal point resolution of normative issues, such as whether a proposed change to Autonocoin should occur. The game produces a result that resolves the issue. With a typical cryptocurrency, the client software establishes conventions that ultimately lead to the identification of the authoritative block chain. Autonocoin completes a circle by making transactions on the block chain determine the authoritative client software. The distributed consensus mechanism embodied by formal tacit coordination games, …

Class, Politics, Gender And The Marriage Divide In The United States, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

In this article we use the idea of the 'marriage divide' to describe the transformation of the family to meet the needs of the information economy and the divisions that the transformation has created. In doing so, we emphasise three types of 'marriage divides' in the United States: class and racial, ideological and political, and family law/gender ideology.

Authentication And Hearsay: Which Trumps?, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

This article addresses the relationship between two federal rules of evidence: Rules 104(a) and 104(b) and which standards a trial judge should apply in admitting hearsay evidence when its authentication is in question. Focusing on United States v. Harvey, 117 F.3d 1044 (7th Circ. 1997) and a simple hypothetical, the article concludes that evidence must be authenticated under Rule 104(b) as well as satisfying the hearsay rule and Rule 104(a).

An Overview Of Privacy Law, Daniel J. Solove, Paul M. Schwartz

GW Law Faculty Publications & Other Works

Chapter 2 of PRIVACY LAW FUNDAMENTALS provides a brief overview of information privacy law – the scope and types of law. The chapter contains an historical timeline of major developments in the law of privacy and data security.

PRIVACY LAW FUNDAMENTALS is a distilled guide to the essential elements of U.S. data privacy law. In an easily-digestible format, the book covers core concepts, key laws, and leading cases.

Professors Daniel Solove and Paul Schwartz clearly and concisely distill all relevant information about privacy law into this short volume. PRIVACY LAW FUNDAMENTALS is designed to be like Strunk and White’s Elements …

New Mechanisms For Punishing Atrocities Committed In Non-International Armed Conflicts, Sean D. Murphy

GW Law Faculty Publications & Other Works

Three core crimes have emerged as a part of the jurisdiction of international criminal tribunals: war crimes; genocide; and crimes against humanity. Only two of these crimes (war crimes and genocide) have been addressed through a global treaty that requires States to prevent and punish such conduct and to cooperate among themselves toward those ends. Yet crimes against humanity may be more prevalent than either genocide or war crimes, and are a recurrent feature in non-international armed conflicts (NIACs).

As such, a global convention on prevention, punishment, and inter-State cooperation with respect to crimes against humanity appears to be a …

Gpa Accession: Lessons Learned On The Strengths And Weaknesses Of The Wto Government Procurement Agreement, Christopher R. Yukins, Johannes S. Schnitzer

GW Law Faculty Publications & Other Works

Many member nations of the World Trade Organization (WTO) have joined the Government Procurement Agreement (GPA), a plurilateral agreement which aims to open public procurement markets. Joining the agreement reflects a commitment to international free trade, and to the rule of law in public procurement. A revised version of the GPA entered into force in 2014, and incorporated many amendments intended to make it easier for developing nations join the GPA. Among other things, the revised GPA now allows developing nations acceding to the GPA to open their public procurement markets more slowly, various transitional measures. This article reviews those …

The Puzzle Of Alfarabi's Parallel Works, Miriam Galston

GW Law Faculty Publications & Other Works

Scholars disagree about the correct interpretation of Alfarabi’s Political Regime and Virtuous City, treatises that have striking similarities, yet notable differences. For some, the treatises encapsulate Alfarabi’s philosophy; for others, they express only politically salutary opinions. Both interpretations fail to explain why he wrote parallel works. If both reflect Alfarabi’s genuine philosophic doctrines, why did he compose separate but parallel treatises, both written when his philosophy was mature? Alternatively, if the treatises are political or rhetorical, why did Alfarabi compose two versions, and why did he choose these two accounts rather than others? To answer these questions, I discuss several …

The Price Of Paid Prioritization: The International And Domestic Consequences Of The Failure To Protect Net Neutrality In The United States, Arturo J. Carrillo, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

This article examines the international trade and human rights obligations of the United States as they relate to net neutrality to determine the extent to which the approach adopted by the Federal Communications Commission (FCC) in 2015 to promote an open Internet complies with those obligations. In March of that year, the FCC adopted new rules to promote and protect an open Internet that, inter alia, reclassified broadband providers as common carriers subject to nondiscrimination obligations and codified strong net neutrality protections. The authors argue that the 2015 FCC Order, contrary to its predecessors, largely meets the requirements of the …

Book Review: Casting Off The Canon: Family Law Reimagined, Laurie S. Kohn

GW Law Faculty Publications & Other Works

Jill Hasday's book, Family Law Reimagined, offers a clear-eyed vision of what family law is, what it is not, and where it might be headed. Hasday considers family law's canon-the set of principles by which we have come to characterize family law-and then debunks the canon by methodically setting forth each notion and illustrating its inaccuracies or limitations. In doing so, Hasday urges the reader to clear the noise of the canon and to see the law in all its messy inconsistencies and shortcomings.

Hobby Lobby And The Dubious Enterprise Of Religious Exemptions, Ira C. Lupu

GW Law Faculty Publications & Other Works

The experience of the past fifty years, culminating in Burwell v. Hobby Lobby Stores, Inc., is grounds for deep skepticism of any sweeping regime of religious exemptions. Part I of this essay locates the problem in the current legal and cultural moment, which includes religious objections to employer-provided contraceptive care for women, and religion-based refusals by wedding vendors and others to facilitate the celebration of same sex marriages. Part II broadens the time frame to analyze the regimes of religious exemption – federal and state, constitutional and statutory -- in which such disputes play out. Such regimes will tend …

Eyes On The Prize, Head In The Sand: Filling The Due Process Vacuum In Federally Administered Contests, Steven L. Schooner, Nathaniel E. Castellano

GW Law Faculty Publications & Other Works

The article introduces readers to the recent proliferation of federal prize contests, which sovereigns have employed, albeit sporadically, since the mid-sixteenth century to incentivize breakthrough innovation. In the past decade, the federal government’s use of prize contests has skyrocketed, which makes sense in an era of constrained government resources. Prize contests offer seemingly unlimited potential to break through existing technological barriers at less expense than traditional innovation incentivizing tools such as contracts, grants, and patents. But that upside potential comes at a cost.

For every ebullient prizewinner, there are potentially innumerable “losers,” many of whom feel wronged, exploited, or, at …

Whither/Wither Alimony?, June Carbone, Naomi R. Cahn

GW Law Faculty Publications & Other Works

Can alimony be saved? Historically, alimony protected women's dependence during marriage. The most fundamental challenge for its continuation therefore rests on reconciling alimony with an era in which the majority of women, including 71% of mothers with children under 18, are in the labor market. This requires reconsideration of the nature of marriage, not just as a partnership ideal, which arguably it has long been, or as a relationship between equals, which has emerged more recently, but as an integrated part of a new economic model. This review of The Marriage Buyout by Cynthia Starnes assesses her justification for the …

Emerging Policy And Practice Issues (2015), Steven L. Schooner

GW Law Faculty Publications & Other Works

This paper, presented at the West Government Contracts Year in Review Conference (covering 2014), attempts to identify the key trends and issues in U.S. federal procurement for 2014. Consistent with prior practice, this chapter offers extensive coverage of the federal procurement, grant, and defense spending trends and attempts to predict what lies ahead, particularly with regard to legislative and executive activity (which, this year, was highlighted by Executive Order activity). The paper discusses, in addition to data, changes to OFPP and DoD leadership and the continued Defense Department Better Buying Power Initiative (now in version 3.0) and acquisition performance measurement …

Public Procurement Law: Key International Developments In 2014 — Part I: An American Perspective On The New European Public Procurement Directives, Christopher R. Yukins

GW Law Faculty Publications & Other Works

The year 2014 saw major developments in European public procurement law, as a number of new procurement directives finally came into force. This paper focuses on the two elements of the new European Union procurement directive, 2014/24/EU, most likely to affect the U.S. procurement community: new flexibility in the use of best-value negotiations, and expanded grounds for excluding potential contractors, for corruption or otherwise. The paper also will discuss how the new procurement directive may affect ongoing trade negotiations, especially between the United States and Europe under the Transatlantic Trade and Investment Partnership (TTIP).

Peer-To-Peer Law, Built On Bitcoin, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

Bitcoin is a protocol promoted as the first peer-to-peer institution, an alternative to a central bank. The decisions made through this protocol, however, involve no judgment. Could a peer-to-peer protocol underpin an institution that makes normative decisions? Indeed, an extension to the Bitcoin protocol could allow a cryptocurrency to make law. Tacit coordination games, in which players compete to identify consensus issue resolutions, would determine currency ownership. For example, an issue might be whether a cryptocurrency-based trust should disburse funds to a putative beneficiary, and the game’s outcome would resolve the question and result in gains or losses for coordination …

The Regulatory Contract In The Marketplace, Emily Hammond, David Spence

GW Law Faculty Publications & Other Works

For decades, energy policy has struggled to reconcile two distinct visions for the future: the first seeks ever-more-competitive, efficient, and dynamic electricity markets; while the second seeks an ever-greener mix of electricity generation sources. Caught within this push-and-pull dynamic is the regulatory contract — a nineteenth-century concept that stands more for ordered regulation than competitive markets. This Article examines how piecemeal pursuit of two energy visions has produced mismatches between rapidly evolving markets and governance institutions that cannot change as quickly. To better evaluate these mismatches, the Article develops a framework that accounts not just for market operation and environmental …

Mandatory Disclosure: A Case Study In How Anti-Corruption Measures Can Affect Competition In Defense Markets, Christopher R. Yukins

GW Law Faculty Publications & Other Works

In the U.S. defense procurement market, regulators require contractors to make “mandatory disclosures” if principals at those firms determine, after due review, that there is credible evidence that the firms engaged in certain crimes (fraud, bribery or gratuities), civil fraud, or significant overpayment by the government. Failure to make such a mandatory disclosure, required by clause and by regulation, can lead to (among other things) the debarment of the contractor -- a potentially devastating result. Mandatory disclosure is a natural extension of a separate requirement, that contractors maintain effective corporate compliance and ethics systems, and the Defense Department’s largest prime …

Berkshire's Disintermediation: Buffett's New Managerial Model, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

Berkshire Hathaway, among history’s largest and most successful corporations, shuns middlemen; its chairman, the legendary investor Warren Buffett, excoriates financial intermediaries. The acquisitive conglomerate rarely borrows money, retains brokers, or hires consultants. Its governance is lean, using an advisory board and bucking all forms of corporate bureaucracy. Berkshire’s shareholders also minimize the roles of intermediaries like stockbrokers and stock exchanges by trading little and holding for lengthy periods.

By exploring Berkshire’s antipathy to intermediation, this article supports the view that public policy ought to make considerable room for companies to define their own internal business practices and that more companies …

Demand Side Reform In The Poor People’S Court, Jessica K. Steinberg

GW Law Faculty Publications & Other Works

A crisis in civil justice has seized the lowest rungs of state court where the great majority of American justice is meted out. Nineteen million civil cases are filed each year in the so-called “poor people’s court,” and seventy to ninety-eight percent of those matters involve an unrepresented litigant who is typically low-income and often a member of a vulnerable population. This Article challenges the predominant scholarly view in favor of “supply side” remedies for improving access to justice—that is, remedies focused exclusively on supplying counsel to litigants, either through adoption of “civil Gideon,” a universal civil right to counsel, …

Judge Bork’S Remarkable Adherence To Unremarkable Principles Of National Security Law, Gregory E. Maggs

GW Law Faculty Publications & Other Works

The late Judge Robert H. Bork is usually remembered as an eminent jurist and scholar in the fields of antitrust law and constitutional law. His judicial opinions and his writings, especially The Antitrust Paradox1 and The Tempting of America,2 are certainly standards in these areas. Judge Bork, however, also deserves acclaim for his contributions to other fields of law. One extremely important subject, in which Judge Bork’s judicial work has received little attention, is the law pertaining to national security and U.S. foreign relations. This essay discusses Judge Bork’s opinions in four important D.C. Circuit cases: Demjanjuk v. Meese,3 Persinger …

China’S Legal System And The Fourth Plenum, Donald C. Clarke

GW Law Faculty Publications & Other Works

The Chinese Communist Party (CCP) Central Committee’s Fourth Plenum, held in October 2014, was its first meeting specifically devoted to the legal system, and as such attracted much from those interested in Chinese law. But the official Decision of the Fourth Plenum does not represent a conversion to the ideology of rule of law. Even if the leadership were to desire the system of accountability and institutionalized restraint on government that is generally understood by the term “rule of law,” it could not be accomplished any time soon and would require changes in entrenched features of the current political and …