Law Commons^™

Us Debarment: An Introduction, John Pachter, Christopher R. Yukins, Jessica Tillipman

GW Law Faculty Publications & Other Works

Disclaimer: This chapter has been published in The Cambridge Handbook of Compliance edited by Benjamin van Rooij and D. Daniel Sokol (2021), https://doi.org/10.1017/9781108759458. This version is free to view and download for private research and study only. Not for re-distribution or re-use. Copyright John Pachter, Christopher Yukins & Jessica Tillipman.

This chapter, cowritten by senior members of the bar who teach in the leading public procurement law program in the United States, discusses corruption, compliance, and debarment in government procurement. When a government procures goods or services, it must decide questions of price and quality, and – equally importantly – …

When The Math Matters: Improving Statistical Advocacy In Gerrymandering Litigation, Robin L. Juni

GW Law Faculty Publications & Other Works

Lawyers regularly joke about their supposed inability to address mathematical issues. However, mathematical concepts sometimes are at the core of a legal dispute, and lawyers do a disservice to their clients if they are not able to engage in effective advocacy in these contexts. This article discusses a gerrymandering dispute involving an important mathematical idea – the core statistical concept of regression analysis, particularly multivariable regression analysis – then explaining the underlying math involved and connecting it to the legal issues. The case involved is Gill v. Whitford, in which Chief Justice Roberts referred to the multivariable regression analysis that …

The Radical Uncertainty Of Free Exercise Principles: A Comment On Fulton V. City Of Philadelphia, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

This paper addresses the decision in Fulton v. City of Philadelphia (June 17, 2021), in which a unanimous Supreme Court upheld a claim under the First Amendment’s Free Exercise Clause by Catholic Social Services (CSS) against the City. CSS had objected on religious grounds to screening same-sex married couples as prospective foster parents, despite a provision in its contract with the City that prohibited such discrimination. Every Justice voted to uphold the Free Exercise Claim. Only three Justices, however, supported the overruling of the Court’s highly controversial decision in Employment Division v. Smith (1990), which insulated religion-neutral, generally applicable policies …

Fall 2021 Supplement To Brauneis & Schechter, Copyright: A Contemporary Approach, Robert Brauneis, Roger E. Schechter

GW Law Faculty Publications & Other Works

This Fall 2021 Supplement is the product of our effort to capture important developments in copyright law since the publication of the second edition of Copyright: A Contemporary Approach. It includes two new principal cases, both Supreme Court decisions: the 2021 fair use decision in Google LLC v. Oracle America, Inc., and the 2020 decision about copyright protection for state statutes in Georgia v. Public.Resources.Org. The supplement also includes notes on many other cases, and a few new features that we thought would enhance study of U.S. copyright law. In light of the passage of the Music Modernization Act in …

Emerging Policy And Practice Issues (2020), Steven L. Schooner, David J. Berteau

GW Law Faculty Publications & Other Works

This paper/chapter, presented at the Thomson Reuters Government Contracts Year in Review Conference (covering 2020), attempts to identify the key evolving trends and issues in U.S. federal procurement for 2020-2021 and beyond. Consistent with prior practice, this chapter offers extensive coverage of the federal procurement (and grant) and defense spending trends and attempts to predict what lies ahead, particularly with regard to legislative and executive activity. This year's paper discusses, among other things, special emergency procurement authorities deployed during the coronavirus pandemic, the high degree of uncertainty currently being experienced in the public procurement sphere as the Biden administration begins, …

Wirecard And Greensill Scandals Confirm Dangers Of Mixing Banking And Commerce, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

The pandemic crisis has accelerated the entry of financial technology (“fintech”) firms into the banking industry. Some of the new fintech banks are owned or controlled by commercial enterprises. Affiliations between commercial firms and fintech banks raise fresh concerns about the dangers of mixing banking and commerce. Recent scandals surrounding the failures of Wirecard and Greensill Capital (Greensill) reveal the potential magnitude of those perils.

The Federal Deposit Insurance Corporation (FDIC) and the Office of the Comptroller of the Currency (OCC) have encouraged commercial enterprises to acquire fintech banks. The FDIC has authorized commercial firms to acquire FDIC-insured industrial banks …

Breaking Down The Silos That Harm Children: A Call To Child Welfare, Domestic Violence And Family Court Professionals, Joan S. Meier, Vivek Sankaran

GW Law Faculty Publications & Other Works

The intersection of domestic violence and child maltreatment has been the subject of research and reform efforts focused on the need to integrate a better understanding of domestic violence into child welfare system practice. But a similar effort at integration of domestic violence and child maltreatment concerns has never been directed at family courts adjudicating private custody litigation. And while such courts’ responses to domestic violence have been analyzed and discussed extensively in the literature, legal discussions of custody courts’ responses to child maltreatment are few and far between. At the same time, there has been an explosion of traumatic …

Provisional Application Of Treaties And Other Topics: The Seventy-Second Session Of The International Law Commission, Sean D. Murphy

GW Law Faculty Publications & Other Works

The International Law Commission (ILC) held its seventy-second session from April 26 to June 4 and from July 5 to August 6, 2021 in Geneva, under the chairmanship of Mahmoud Hmoud (Jordan). This session was originally scheduled for the summer of 2020, but had to be postponed due to the outbreak of the COVID-19 pandemic. The pandemic continued in 2021 to present health risks and travel difficulties for certain members; consequently, the Commission for the first time in its history held its session in a hybrid manner, with many members physically present in Geneva, while others participated online by means …

It's Time To Regulate Stablecoins As Deposits And Require Their Issuers To Be Fdic-Insured Banks, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

In November 2021, the President’s Working Group on Financial Markets (PWG) issued a report analyzing the rapid expansion and growing risks of the stablecoin market. PWG’s report determined that stablecoins pose a wide range of potential hazards, including the risks of inflicting large losses on investors, destabilizing financial markets and the payments system, supporting money laundering, tax evasion, and other forms of illicit finance, and promoting dangerous concentrations of economic and financial power. PWG called on Congress to pass legislation that would require all issuers of stablecoins to be banks that are insured by the Federal Deposit Insurance Corporation (FDIC). …

Business As Usual: Hobby Lobby And The Purpose Of Corporate Rights, Dalia Tsuk Mitchell

GW Law Faculty Publications & Other Works

This article explores the interdependence of the discourse of corporate rights and the law of corporate purpose. I argue that the history of corporate rights reflects changing reactions of the U.S. Supreme Court to social, political, and cultural concerns, each reaction offering a different purpose for corporations in our modern society. At the turn of the twentieth century, in response to fears about the advance of socialism, the Court used liberal assumptions to justify protecting the publicly held corporation’s property rights as derived from the rights of individual shareholders. In so doing, the Court helped turn the corporation, with its …

Structured To Fail: Lessons From The Trump Administration's Faulty Pandemic Planning And Response, Alejandro E. Camacho, Robert L. Glicksman

GW Law Faculty Publications & Other Works

The Trump Administration’s response to the COVID-19 pandemic is a stark reminder that poorly designed government can be a matter of life and death. This article explains how the Administration’s careless and delayed response to the crisis was made immeasurably worse by its confused and confusing reallocation of authority to perform or supervise tasks essential to reducing the virus’s ravages.

After exploring the rationale for and impact of prior federal reorganizations responding to public health crises, the article shows how a combination of unnecessary and unhelpful overlapping authority and a thoughtless mix of centralized and decentralized authority contributed to the …

Officer-Created Jeopardy: Broadening The Time Frame For Assessing A Police Officer’S Use Of Deadly Force, Cynthia Lee

GW Law Faculty Publications & Other Works

When a police officer’s use of deadly force kills or seriously injures a civilian, that officer may face civil liability or criminal prosecution. In both civil and criminal cases, a critical question that the jury must decide is whether the officer’s use of force was reasonable or excessive. As a general matter, the jury will be advised that it should consider all the relevant facts and circumstances—the totality of the circumstances—to answer this question.

An officer’s decisions and conduct prior to that officer’s use of deadly force can create jeopardy for the civilian and the officer, increasing the risk of …

Ask The Smart Money: Shareholder Votes By A "Majority Of The Quality Shareholders", Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

Corporate directors, shareholders, judges and scholars are on edge. Directors yearn for a certain kind of shareholder, especially one that is patient and focused on the company, as opposed to indexers, who must hold it as part of their basket, or traders, who own fleetingly. Shareholders want a voice, and that patient-focused cohort has the softest one today, crowded out by indexers, like BlackRock, and legions of day traders, like those stalking GameStop. Courts, struggling under the conflicting weight of the business judgment rule and fairness scrutiny, look to shareholder voice as a solution. Yet scholars are troubled by the …

Assessing The Trade Agenda For Government Procurement In The Biden Administration, Christopher R. Yukins

GW Law Faculty Publications & Other Works

This paper, prepared shortly before President Joe Biden was inaugurated, discussed key trade issues for the incoming administration in public procurement. The piece reviewed major trade measures in procurement taken during the Trump administration – most of which were predictable from the time Trump was elected. The paper turned to the major trade challenges that faced the Biden administration, in areas as diverse as climate change, cybersecurity and the protectionism in post-Brexit Europe, and then assessed how the Biden administration might address these challenges, especially given Joe Biden’s support for “Buy American” policies during the 2020 campaign. The paper also …

Privacy Harms, Daniel J. Solove, Danielle Keats Citron

GW Law Faculty Publications & Other Works

Privacy harms have become one of the largest impediments in privacy law enforcement. In most tort and contract cases, plaintiffs must establish that they have been harmed. Even when legislation does not require it, courts have taken it upon themselves to add a harm element. Harm is also a requirement to establish standing in federal court. In Spokeo v. Robins, the U.S. Supreme Court has held that courts can override Congress’s judgments about what harm should be cognizable and dismiss cases brought for privacy statute violations.

The caselaw is an inconsistent, incoherent jumble, with no guiding principles. Countless privacy violations …

Denial Of Family Violence In Court: An Empirical Analysis And Path Forward For Family Law, Joan S. Meier

GW Law Faculty Publications & Other Works

Scores of women and children have suffered grave harm from courts’ punitive responses to mothers’ requests to protect their children from paternal abuse in the context of custody litigation. Rather than responding protectively, family courts frequently turn on the protective parent, ordering the children removed from the protective parent and sending them to live with or spend unprotected time with their allegedly abusive parent. In the worst of these cases, the abusive parent has used this court-ordered access to murder the child(ren), in the ultimate act of revenge against his adult victim. While courts’ resistance to mothers’ and children’s abuse …

The Expanding Labor Dimension Of Us-Negotiated Regional Trade Agreements: Tpp And Usmca, Steve Charnovitz

GW Law Faculty Publications & Other Works

During the past several years, the US government has negotiated two regional trade agreements with far reaching labor provisions — the Trans-Pacific Partnership (TPP) and the United States-Mexico-Canada Agreement (USMCA). Signed in early 2016, the TPP labor chapter enhances second-generation worker rights in several significant ways: First, the TPP obligates each party to "adopt and maintain" statutes, regulations, and practices governing acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health, as determined by that party. Second, the obligation not to waive or derogate from fundamental labor rights or conditions of work is …

The Government Contracts Reference Book: A Comprehensive Guide To The Language Of Procurement, Ralph C. Nash, Steven L. Schooner, Karen R. O'Brien-Debakey, Vernon J. Edwards

GW Law Faculty Publications & Other Works

This book - first published in 1992 and now in its fifth edition - is intended to offer concise, comprehensive information to the practitioner of the art of government contracting. Looking up a key term, the reader can find a definition, followed by a summary of where the term is used in the statutes or regulations dealing with the procurement process. The book also includes references to literature where the term is more fully discussed. The book is not designed as a standalone encyclopedia: it is a first reference, pointing the user to additional sources as needed. The book makes …

Judges And The Deregulation Of The Lawyer's Monopoly, Jessica Steinberg, Anna E. Carpenter, Colleen F. Shanahan, Alyx Mark

GW Law Faculty Publications & Other Works

In a revolutionary moment for the legal profession, the deregulation of legal services is taking hold in many parts of the country. Utah and Arizona, for instance, are experimenting with new regulations that permit nonlawyer advocates to play an active role in assisting citizens who may not otherwise have access to legal services. In addition, amendments to the Rules of Professional Conduct in both states, as well as those being contemplated in California, now allow nonlawyers to have a partnership stake in law firms, which may dramatically change the way capital for the delivery of legal services is raised as …

Judges In Lawyerless Courts, Anna E. Carpenter, Colleen F. Shanahan, Jessica Steinberg, Alyx Mark

GW Law Faculty Publications & Other Works

The typical American civil trial court is lawyerless. In response to the challenge of pro se litigation, scholars, advocates, judges, and courts have embraced a key solution: reforming the judge’s traditional role. The prevailing vision calls on trial judges to set aside traditional judicial passivity, simplify court procedures, and offer a range of assistance and accommodation to people without counsel.

Despite widespread support for judicial role reform, we know little of whether and how judges are implementing pro se assistance recommendations. Our lack of knowledge stands in stark contrast to the responsibility civil trial judges bear – and the power …

The Supreme Court Should Eliminate Its Lawless Shadow Docket, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

Over the last six years, the Supreme Court has adopted a regular practice of making many of its most important decisions without giving any reasons for those decisions. The Court's justification for this practice is the temporary nature of the effects of the many decisions in which it stays or declines to stay a major government action. Many of those decisions have enormous long-term effects, however. In many cases, they are the only decision the Court will ever make with respect to an important government action.

In this essay, Professor Pierce describes and explains the extraordinary growth of the Court's …

Nonobviousness: Before And After, Dmitry Karshtedt

GW Law Faculty Publications & Other Works

The requirement of nonobviousness, codified in 35 U.S.C. § 103, has been called “the ultimate condition of patentability” because of its crucial function of keeping technically trivial inventions out of the patent system. The obviousness determination must be made based on the state of the invention’s field at a particular point in time—in the Patent Act’s current version, the date that the patent application was effectively filed with the U.S. Patent and Trademark Office (“PTO”).

However, in spite of the critical role of time in patent law and the danger that hindsight bias could distort § 103 analysis when patentability …

Patent Law: An Open-Source Casebook (Chapter 8: Defenses), Dmitry Karshtedt, Mark D. Janis, Ted M. Sichelman

GW Law Faculty Publications & Other Works

Less than a handful of casebooks are truly open source, in the sense of being fully modifiable. Patent Law: An Open-Source Casebook is the first patent law casebook that provides adopting professors, students, and others the ability to fully modify its contents. This chapter of the casebook covers defenses to infringement, including inequitable conduct, patent exhaustion, patent misuse, laches, equitable estoppel, experimental use, and spoliation of evidence.

Habeas, History, And Hermeneutics, Jonathan R. Siegel

GW Law Faculty Publications & Other Works

Supreme Court Justices Clarence Thomas and Neil Gorsuch recently proposed a radical shrinking of federal habeas corpus relief for state prisoners who are in custody pursuant to a final judgment of criminal conviction. They called for a return to the supposedly traditional principle that federal courts cannot grant habeas relief to such prisoners unless the state court that sentenced them lacked jurisdiction. This Article explains that (1) this supposedly traditional principle was not, in fact, a traditional principle of habeas, and (2) even if it were, Congress has displaced it by statute. Exploring the errors in the Justices’ arguments provides …

The Varieties Of Counterspeech And Censorship On Social Media, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

The year 2020 was without a doubt a remarkable and unprecedented one, on many accounts and for many reasons. Among other reasons, it was a year in which the major social media platforms extensively experimented with the adoption of a variety of new tools and practices to address grave problems resulting from harmful speech on their platforms — notably, the vast amounts of misinformation associated with the COVID-19 pandemic and with the 2020 presidential election and its aftermath. By and large — consistent with First Amendment values of combatting bad speech with good speech — the platforms sought to respond …

Adaptive Management And Nepa: How To Reconcile Predictive Assessment In The Face Of Uncertainty With Natural Resource Management Flexibility And Success, Robert L. Glicksman, Jarryd Page

GW Law Faculty Publications & Other Works

For years, public lands scholars lamented the limited success that federal agencies had in applying adaptive management decisionmaking processes in pursuit of their natural resource management responsibilities. Agency duties to comply with the National Environmental Policy Act (NEPA) have played a role in creating a disconnect between the theory and application of adaptive management. NEPA was designed to force agencies to predict (and consider ways to avoid) the adverse environmental impacts of actions before committing to them. Adaptive management is built on the premise that, at least in conditions of uncertainty such as those that often characterize natural resource management, …

The Pandemic Crisis Shows That The World Remains Trapped In A 'Global Doom Loop' Of Financial Instability, Rising Debt Levels, And Escalating Bailouts, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

In January 2020, I completed a book (Taming the Megabanks: Why We Need a New Glass- Steagall Act) analyzing the financial crises that precipitated the Great Depression of the 1930s and the recent Great Recession. My book argued that the world’s financial system was caught in a “global doom loop” at the beginning of 2020. Bailouts and economic stimulus programs during and after the global financial crisis of 2007-09 (GFC) had imposed heavy debt burdens on most governments, and leading central banks were carrying bloated balance sheets. The rescues arranged by governments and central banks during the GFC created a …

Tax Incentives And Sub-Saharan Africa, Karen B. Brown

GW Law Faculty Publications & Other Works

The OECD’s Base Erosion Profit Shifting (BEPS) project has taken a powerful and welcome look at many of the tax avoidance strategies that proliferate in a world where multinational enterprises are in the business of exploiting gaps in the tax laws of different countries to minimize their ultimate tax bills. The focus on international consensus and prescriptions for reform has not been an unqualified good for the nations in Sub-Saharan Africa, which find themselves in the position of reacting to standards and taking on compliance burdens set without sufficient consideration of their special circumstances. Because the path for the BEPS …

Can The Federal Trade Commission Use Rulemaking To Change Antitrust Law?, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

Lina Khan, the new Chair of the FTC, proposes to use notice and comment rulemaking to make major changes in antitrust law by declaring many practices to be “unfair methods of competition” within the meaning of that term in section five of the FTC Act. She has the strong backing of President Biden and her Democrat colleagues. That raises two questions. Does the FTC have the power to use the notice and comment process to implement Section five? If it has that power, can it use the rulemaking process to make the major changes in antitrust law that Chair Khan …

The Resilience Of Substantive Rights And The False Hope Of Procedural Rights: The Case Of The Second Amendment And The Seventh Amendment, Renée Lettow Lerner

GW Law Faculty Publications & Other Works

At first glance, there seem to be strong affinities between the Second Amendment and the Seventh Amendment. Both the right to keep and bear arms and the right to civil jury trial potentially empower ordinary citizens. Both could check elites.

But there are crucial differences between these rights. I focus on two of them here. The first is relatively straightforward; it concerns individual accountability—or the lack thereof—and the ability to understand responsibilities. Gun owners and users generally have individual responsibility for their actions, and the ability to understand their responsibilities. In contrast, by design civil jurors lack individual responsibility. And …