Law Commons^™

The Clean Power Plan: Testing The Limits Of Administrative Law And The Electric Grid, Emily Hammond, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

The Environmental Protection Agency’s (EPA) Clean Power Plan (CPP) is one of the most controversial and highest-stake rules ever issued by any agency. Proponents of the rule maintain that it is essential to mitigating the potentially devastating effects of climate change. Opponents, by contrast, argue that it is unlikely to be effective for its intended purpose and that it jeopardizes the reliability of the electricity grid. We are in the awkward position of agreeing with both the proponents and the opponents of the CPP. We want the rule to succeed in accomplishing its intended purpose but we fear that it …

Consume Or Invest: What Do/Should Agency Leaders Maximize?, William E. Kovacic, David A. Hyman

GW Law Faculty Publications & Other Works

In the regulatory state, agency leaders face a fundamental choice: should they “consume” or should they “invest?” “Consume” means launching high profile cases and rule-making. “Invest” means developing and nurturing the necessary infrastructure for the agency to handle whatever the future may bring. The former brings headlines, while the latter will be completely ignored. Unsurprisingly, consumption is routinely prioritized, and investment is deferred, downgraded, or overlooked entirely. This essay outlines the incentives for agency leadership to behave in this way and explores the resulting agency costs (pun intended). The U.S. Federal Trade Commission’s health care portfolio provides a useful case …

Can't Anyone Here Play This Game? Judging The Ftc's Critics, David A. Hyman, William E. Kovacic

GW Law Faculty Publications & Other Works

The conventional wisdom is that the FTC was the governmental equivalent of a leper colony prior to 1969, and its credibility and reputation were restored only by the adoption of the wise recommendations in the 1969 ABA Report. There is no question that the FTC deserves plenty of criticism for its pre-1969 performance. It is also beyond doubt that there has been a dramatic turn-around in the intervening forty-five years, as the FTC adopted the recommendations in the 1969 Report. But, before we simply genuflect at the wisdom of those responsible for the ABA Report and the inherent virtue of …

Transforming Document Recordation At The United States Copyright Office, Robert Brauneis

GW Law Faculty Publications & Other Works

For over 140 years, federal law has provided for recording of documents pertaining to copyright in one central location, at the Copyright Office and, before the Copyright Office was created as a separate unit, at the Library of Congress. Over that time, the copyright recordation system has supported a market for interests in and use of works of authorship by lowering the cost of obtaining information about ownership and by reducing unavoidable risks that threaten ownership. Yet the recordation system has not kept up with developments in technology and in business practices. This report, prepared while the author was serving …

Forget About It? Harmonizing European And American Protections For Privacy, Free Speech, And Due Process, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

No abstract provided.

Parsing The Visual Rhetoric Of Office Dress Codes: A Two-Step Process To Increase Inclusivity And Professionalism In Legal-Workplace Fashion, Karen Thornton

GW Law Faculty Publications & Other Works

Legal employers expect attorneys in their offices to use the ethos of personal appearance to project an image of competence to clients. This expectation is largely unspoken, however, and polling and anecdotal evidence alike show that in today’s workplace, employers are frustrated with the level of professionalism demonstrated by new employees. The goal of this article is to encourage open conversations about workplace fashion as it relates to an attorney’s professional identity. It is in both the employer’s and employee’s interests to clarify employer expectations and empower new members of the legal profession to adopt a personal sense of style …

The Import Of History To Corporate Law, Dalia Tsuk Mitchell

GW Law Faculty Publications & Other Works

This article explores the ways in which history can be useful in teaching directors’ duties, specifically the duty to monitor. I argue that the Delaware courts’ changing views of directors’ duties reflect a broader shift—from a corporate law grounded in business practice to one anchored in, and ultimately trumped by, modern finance theory. As the article explores the influence of business practice in the mid-century years, law’s emphasis on structure and process in the 1970s and 1980s, and ultimately the triumph of finance over law in the 1990s, it also discusses how the rhetoric of care, business judgment, and good …

Religious Exemptions And The Limited Relevance Of Corporate Identity, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

Corporate religious liberty appears to be on the rise. The Supreme Court’s unanimous decision in Hosanna Tabor v. EEOC (2012) energized sweeping theories about “freedom of the church.” The Court’s more controversial decision in Burwell v Hobby Lobby Stores, Inc. (2014) determined that for-profit entities may be legally entitled to claim a corporate religious character. Speaking in the language of rights, commentators have vigorously debated the foundations and meaning of these decisions.

This chapter argues that these debates are misdirected. The special treatment of religion in American constitutional law does not properly rest on any theory that religious entities …

'Making Things Fair': An Empirical Study Of How People Approach The Wealth Transmission System, Naomi R. Cahn

GW Law Faculty Publications & Other Works

The wealth transmission process is of great concern to many senior citizens in the United States. The American wealth transmission process is designed to respect private ordering. It encourages planning as a means to formalize intent and ensure smoother property transfer at death. Most people do not plan, nor do they use, the formal probate system for distributing property, but there is little research on what the actual wealth transfer process looks like for the majority of Americans. This article challenges the contemporary trusts and estates canon by showing that the nuts and bolts of the inheritance process for many …

Ruth Bader Ginsburg And The Interaction Of Legal Systems, Paul Schiff Berman

GW Law Faculty Publications & Other Works

The idea of legal pluralism is that law must always negotiate situations when multiple communities and legal authorities seek to regulate the same act or actor. These overlapping jurisdictional assertions may occur because of federalism, or because disputes often cross territorial borders, or because of complicated inter-jurisdictional arrangements, as with Indian tribes in the United States. In all of these situations, judges must develop strategies for determining how best to balance the competing claims of multiple communities: does the law of one community triumph, does the law of the other community triumph, or is there some hybrid solution available?

This …

The Peter Humphrey/Yu Yingzeng Case And Business Intelligence In China, Donald C. Clarke

GW Law Faculty Publications & Other Works

The case of Peter Humphrey and Yu Yingzeng, convicted in China on August 2014 on charges of unlawful acquisition of citizens’ personal information, raises important issues about Chinese law. A narrow but important issue is how Chinese law draws the line between lawful and unlawful acquisition of information, a practice routinely carried out by businesses and individuals. This article examines the trial transcript and judgment in the Humphrey/Yu case and finds that it sheds regrettably little light on what remains a murky question. A broader issue is whether the Chinese legal system can be counted on to operate in a …

Advocate Yes; Witness No, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

This article examines United States v. Rangel-Guzman, 752 F.3d 1222 (9th Circ. 2014) to illustrate the possibility of a lawyer violating Model Rule of Professional Conduct 3.7 without ever becoming an official witness.

Someone Must Be Lying, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

There is no rule that governs all cases when determining whether it's permissible for prosecutors to argue in closing that the jury would have to find that police officers lied in order to find a defendant not guilty. This article examines the issue of the credibility of law enforcement officers in United States v. Ruiz, 710 F.3d 1077 (9th Cir. 2013), United States v. Wilkes, 662 F.3d 524 (9th Cir. 2011), and United States v. Tucker, 641 F.3d 1110 (9th Cir. 2011).

Should The Ftc Kill The Password? The Case For Better Authentication, Daniel J. Solove, Woodrow Hartzog

GW Law Faculty Publications & Other Works

Data security breaches are occurring at an alarming frequency, and one of the main causes involves problems authenticating the identity of account holders. The most common approach to authentication is the use of passwords, but passwords are a severely flawed means of authentication. People are being asked to do a nearly impossible task – create unique, long, and complex passwords for each of the numerous accounts they hold, change them frequently, and remember them all. People do very poorly in following these practices, and even if they manage to do so, hackers and phishers can readily trick people into revealing …

Berkshire Versus Kkr: Intermediary Influence And Competition, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

Kathryn Judge of Columbia University documents how financial intermediaries persistently impose high fees compared to the value rendered, attributes this to political influence, and suggests countervailing policy strategies, including stoking competition and enhancing disclosure to reduce excessive transaction costs. In this solicited comment, I concur with Judge's findings and prescriptions by adding a paired example: that of Berkshire Hathaway versus Kohlberg Kravis Roberts. In the field of corporate acquisitions, these rivals are opposites, Berkshire shunning intermediaries and generating virtually no transaction costs while KKR feasts on multiple and lavish fees. The contrast reflects broader differences between Berkshire and private equity …

Johnson’S Differentiation Theory: Is It Really Empirically Supported?, Joan S. Meier

GW Law Faculty Publications & Other Works

Michael Johnson’s differentiation of ‘‘types’’ of domestic violence has had a significant impact on courts and providers, in part because of its claim to an empirical basis. Unfortunately, the label ‘‘situational couple violence’’ has already been used by judges and evaluators to minimize abuse claims in custody cases. Johnson’s repeated assertion that SCV is the most common form of domestic violence reinforces the marginalizing of domestic violence. But what do his data actually show? Here Professor Meier takes a close look at the research Johnson relies on and finds that it fails to prove his thesis. Rather, the data suggest …

Debunking Revisionist Understandings Of Environmental Cooperative Federalism: Collective Action Responses To Air Pollution, Jessica Wentz

GW Law Faculty Publications & Other Works

The federal Clean Air Act initiated Congress's venture into cooperative environmental federalism in 1970. Forty-five years later, misconceptions about the nature of that venture (and similar examples of cooperative federalism under other federal environmental statutes) persist. In particular, some recent judicial decisions characterize environmental cooperative federalism as an equal partnership between the federal Environmental Protection Agency and the states. They also take umbrage at efforts by EPA to override state policies and initiatives that fail to conform to the minimum responsibilities that the statutes impose on the states, characterizing them as unlawful affronts to state sovereignty.

This chapter argues that …

Extent Of Cooperative Enforcement: Effect Of The Regulator-Regulated Facility Relationship On Audit Frequency, Dietrich Earnhart, Robert L. Glicksman

GW Law Faculty Publications & Other Works

A spirited debate explores the comparative merits of two different approaches to the enforcement of environmental law: the noncooperative approach, which emphasizes the deterrence of noncompliance through inflexibly imposed sanctions, and the cooperative approach, which emphasizes the inducement of compliance through flexibility and assistance. Both scholarly and policymaking communities are interested in this topic of enforcement approach within the realms of finance, tax compliance, occupational safety, food and drug safety, consumer product safety, and environmental protection, among others. To inform this debate, our study explores enforcement of environmental protection laws where the debate has been especially spirited yet lacking in …

The Clean Power Plan: Issues To Watch, Robert L. Glicksman, Emily Hammond, Alice Kaswan, William Buzbzee, Kirsten H. Engel, David M. Driesen, Victor Byers Flatt, Alexandra B. Klass, Thomas Owen Mcgarity, Melissa Powers, Joseph P. Tomain

GW Law Faculty Publications & Other Works

Although the Clean Air Act is an imperfect tool for addressing the nation’s greenhouse gas emissions, it is the only available federal mechanism for directly addressing power plant carbon emissions. The Obama Administration’s Clean Power Plan, published in final form in August 2015, tackles the challenge. This paper from the Center for Progressive Reform (CPR) compiles 13 separately authored essays from 11 CPR Member Scholars, each addressing a different topic related to the Clean Power Plan, and each representing the expertise and views of its individual author(s). Published in July 2015, just before the release of the final rule, the …

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.