Law Commons^™

The Ftca Discretionary Function Exception And Accounting Malpractice, Steven L. Schooner

GW Law Faculty Publications & Other Works

These two short pieces discuss General Dynamics Corp. v. United States, in which the Ninth Circuit reversed what appeared to be the first successful use of the Federal Torts Claims Act (FTCA) by a government contractor to pursue a professional malpractice claim against a federal agency, awarding more than $25 million in damages due to professional malpractice committed by the Defense Contract Audit Agency (DCAA). The latter piece: (1) briefly summarizes the history of the case, explaining how a routine contractual compliance audit lead to a $25 million malpractice award; (2) introduces the discretionary function exception to the FTCA; (3) …

An Anthropological Approach To Modern Forfeiture Law: The Symbolic Function Of Legal Actions Against Objects, Paul Schiff Berman

GW Law Faculty Publications & Other Works

In 1996, the Supreme Court issued two opinions, Bennis v. Michigan and United States v. Ursery, emphasizing the constitutionality of civil forfeiture schemes under both the Due Process and Double Jeopardy Clauses of the Fifth Amendment. These decisions, and civil forfeiture schemes generally, have faced strong criticism from scholars and civil libertarians. Among the arguments advanced against civil forfeiture has been one based on its origins. The so-called "legal fiction" underlying forfeiture is that the government is acting against the property itself, rather than against the owner. Commentators have traced this fiction to the Middle Ages. Under the law of …

The Silent Resurrection Of Plessy: The Supreme Court’S Acquiescence In The Resegregation Of America’S Schools, Lisa M. Fairfax

GW Law Faculty Publications & Other Works

This article argues that the modern Supreme Court is engaging in Plessy-like reasoning to permit segregation. The article argues that the Supreme Court relies on three rationales, all consistent with Plessy, that have resulted in the erosion of school integration: 1) segregation reflects private preferences, 2) we should defer to local governments, and 3) separate schools can result in equal quality of education for all children. The article provides an overview of the case law demonstrating this pro-Plessy bent of the Court and insists that the Court return to the reasoning of Brown to better ensure high quality education for …

Introduction: What Makes A Field A Field, W. Burlette Carter

GW Law Faculty Publications & Other Works

The article considers whether the field of "Sports Law" is a separate legal field or merely a subfield of other established legal fields (e.g., criminal law, contracts, etc.) In so doing, it considers causes us to consider a legal area of inquiry "a field." It begins with offering an historical overview of the development of "Sports Law" and considers whether the course of study is properly described as “Sports Law” or “Sports and the Law?” It provides reasons in support of embracing the study of sports law in the law school curriculum and suggests in a final section that …

Gender, Risk Taking, And Negotiation Performance, Charles B. Craver, David W. Barnes

GW Law Faculty Publications & Other Works

Over the past three decades, the number of women entering the legal profession has increased substantially. Despite significant expansion in the number of female law students and legal practitioners, many individuals, including both legal employers and academics, stereotypically think that male and female attorneys behave differently in critical situations. These individuals suspect that female attorneys are less successful negotiators than their male counterparts. This article explores this assumption by empirically testing the relative abilities of men and women to perform successfully on negotiation exercises. It concludes that there is no significant difference in the relative abilities of men and women …

Commonalities And Prescriptions In The Vertical Dimension Of Global Corporate Governance, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

globalization, comparative corporate governance, path dependence, vertical corporate governance, horizontal corporate governance, mergers, stock options, auditing, convergence

Antidumping Law As Means Of Facilitating Cartelization, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

The article uses a specific case to illustrate how three multinational firms used antidumping law to create cartels in Europe and in the United States. It goes on to show how easy it is to use antidumping law to facilitate cartellization and to suggest that this practice is probably common. The author urges antitrust authorities to use the filing of antidumping complaints to trigger antitrust investigations.

Note: A revised version of this working paper is forthcoming in Antitrust Law Journal.

Families Without Paradigms: Child Poverty And Out-Of-Home Placement In Historical Perspective, Catherine J. Ross

GW Law Faculty Publications & Other Works

In this Article, Prof. Ross argues that no single paradigm of family relationships adequately serves the emotional needs of children who enter the foster care system due to the poverty of their parents. According to Prof. Ross, the needs of such children are increasingly at issue because of the likely effect on poor families of interactions between the Personal Responsibility Act (PRA) and the Adoption and Safe Families Act (ASFA). Reliable data is not yet available on children who are moved into foster care as their families lose welfare benefits or on those who are placed in adoptive homes in …

A Modest Proposal To Enhance Civil/Military Integration: Rethinking The Renegotiation Regime As A Regulatory Mechanism To Decriminalize Cost, Pricing, And Profit Policy, William E. Kovacic, Steven L. Schooner

GW Law Faculty Publications & Other Works

Neither Congress, the procuring agencies, the media, nor the public will condone government contractors reaping what are perceived as excessive profits. Accordingly, the procurement process employs an unduly complex, burdensome, risk-laden, and ineffective mechanism that erects significant barriers to civil/military integration. This paper (presented at the 1999 Defense Systems Management College (DSMC) Acquisition Research Symposium) examines certain policy implications associated with the Truth In Negotiations Act (TINA), the existing audit regime, and the use of criminal and civil anti-fraud measures to scrutinize deviations from these complex cost, pricing, and profit policies and controls. It re-visits the long-extinct Renegotiation Act and …

What Next? A Heuristic Approach To Revitalizing The Contract Disputes Act Of 1978, Steven L. Schooner

GW Law Faculty Publications & Other Works

This essay, included in a 1999 special issue examining the Contract Disputes Act (CDA) of 1978 at its twentieth anniversary, begins from the premise that the statute's critics have valid reason to perceive that the CDA fails to provide a "fair and balanced system of administrative and judicial procedures for the settlement of claims and disputes." The essay suggests a framework for a meaningful debate over what an improved and invigorated CDA should look like but, in the end, raises more questions than it answers. Its purpose is heuristic; to frame a debate (which many feel is long overdue) as …

When You Wish Upon A Star: Explaining The Cautious Growth Of Royalty-Backed Securitization, Lisa M. Fairfax

GW Law Faculty Publications & Other Works

This article focuses on the phenomenon of securitizing future royalties of entertainers, illustrating why securitzation of such royalties has not been embraced more enthusiastically. The article begins by describing the securitization process in general and the differences between mortgage-backed and asset-backed securities. The article then examines the benefits of securitization as applied to entertainment royalties. Benefits of securitization include immediate liquidity, less expensive capital, and diversification of the suppliers of the originator’s funding. However, securitization does not make sense for many entertainers unless they need large sums of cash. Moreover, securitizing royalties may not be viable because it creates a …

A User's Guide To Proposals To Replace The U.S. Tax System And Strangle Fiscal Policy, Neil H. Buchanan

GW Law Faculty Publications & Other Works

This article reviews several familiar plans to alter the structure of taxation, including the flat tax, a VAT, and the USA Tax. With the significant exception of a simplified income tax system, every plan to replace the current U.S. federal tax system would move us in precisely the wrong direction. These plans would abandon income taxation entirely in an attempt to solve problems that do not exist, and they are based on a flawed ideal of a neutral tax code. The companion to these plans is an even more misguided set of proposals (some in the form of constitutional amendments) …

State Liability For Environmental Violations: The U.S. Supreme Court’S 'New' Federalism, Robert L. Glicksman, Stephen R. Mcallister

GW Law Faculty Publications & Other Works

This article examines whether the Supreme Court’s decisions in Alden v. Maine, College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, and Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, restrict the ability of Congress to regulate state compliance with federal environmental statutes. The article discusses the various enforcement mechanisms identified in Alden v. Maine and that remain valid, notwithstanding any Eleventh Amendment or constitutional immunity the States may retain. The article concludes that the Supreme Court’s federalism decisions will likely have limited practical impact upon Congress’ authority to enact and ensure the enforcement of environmental statutes.

Antitrust Policy: A Century Of Economic And Legal Thinking, William E. Kovacic, Carl Shapiro

GW Law Faculty Publications & Other Works

Passage of the Sherman Act in the United States in 1890 set the stage for a century of jurisprudence regarding monopoly, cartels, and oligopoly. Among American statutes that regulate commerce, the Sherman Act is unequaled in its generality. The Act outlawed every contract, combination or conspiracy in restraint of trade and monopolization and treated violations as crimes. By these open-ended commands, Congress gave federal judges extraordinary power to draw lines between acceptable cooperation and illegal collusion, between vigorous competition and unlawful monopolization.

By enlisting the courts to elaborate the Sherman Act's broad commands, Congress gave economists a singular opportunity to …

Taxes, Saving, And Macroeconomics, Neil H. Buchanan

GW Law Faculty Publications & Other Works

In response to increasing calls for policies to raise the U.S. saving rate, proposals are once again being offered in Congress to change the tax base from income to consumption. Beyond the important issues of income distribution (that is, outright unfairness) inherent in such a plan, it would simply not work. Indeed, it is based on a fundamental mismeasurement of what counts as saving in the U.S. economy. The logical sequence underlying this proposal is wrong at two crucial points: lowering or eliminating taxes on saving is unlikely to increase saving, and higher saving would be unlikely to increase investment …

Judicial Review Of The Manual For Courts-Martial, Gregory E. Maggs

GW Law Faculty Publications & Other Works

In the Manual for Courts-Martial, the President of the United States has established the procedural, evidentiary, and other rules that govern many aspects of the military justice system. This article describes and analyzes nine arguments that litigants have advanced when asking courts to ignore or invalidate Manual provisions: (1) The Manual provision is merely precatory; (2) The Manual provision conflicts with the Uniform Code of Military Justice (UCMJ); (3) The Manual provision conflicts with another Manual provision; (4) The Manual provision conflicts with a federal regulation; (5) The President lacked authority to promulgate the Manual provision; (6) The Manual provision …

An Emerging Right For Mature Minors To Receive Information, Catherine J. Ross

GW Law Faculty Publications & Other Works

This article argues that parental objections should not be allowed to block minors from accessing information from government agencies, including schools and libraries. This is particularly important when a mature minor seeks information that is essential to meaningful decisions about the exercise of autonomy rights that are constitutionally protected for teenagers, such as reproductive rights including the right to contraception and abortion. The right to receive information is also implicated where minors seek information to facilitate emerging identity choices that may conflict with those of their parents, such as religion and reliance on medical care. Part I analyzes the nature, …

The Darkest Domain: Deference, Judicial Review, And The Bill Of Rights, Daniel J. Solove

GW Law Faculty Publications & Other Works

Deference presents one of the greatest threats to liberalism in the modern age, undermining judicial review for fundamental constitutional rights such as freedom of speech, freedom of religion, and due process. In contrast to existing critiques which dismiss deference as an ideological tool wielded by conservative judges, this article explores deference more systematically and rigorously, addressing it at its conceptual underpinnings. Deference has a strong conceptual backbone rooted in the long-accepted principle that the judiciary must avoid doing what was done in Lochner - the substitution of judicial judgment for that of the policymaker or legislature. The article argues that …