Law Commons^™

Sexism In The 'Bathroom Debates': How Bathrooms Really Became Separated By Sex, W. Burlette Carter

GW Law Faculty Publications & Other Works

This article challenges two widely-embraced theories about how public intimate spaces (e.g., toilets, locker rooms, showers, etc. hereinafter called "bathrooms") first became separated by sex. The first challenged theory claims that the very first instance of sex-separation in public bathrooms occurred in 1739 at a ball held in a restaurant in Paris. Under this first view, sex-separation first emerged as a sign of upper-class gentility and elitism. The second challenged theory argues that a consistent practice of differentiating bathrooms by sex did not emerge until the late nineteenth century. According to this view, bathroom sex-separation was imposed when authorities overreacted …

Tale Of Three Regulatory Regimes -- Dynamic, Distracted And Dysfunctional: Sweden, The United Kingdom And The United States, Christopher R. Yukins, Andrea Sundstrand, Michael Bowsher Qc

GW Law Faculty Publications & Other Works

It was the best of times, it was the worst of times -- a year marked by genuine progress in public procurement law in some nations, and partial paralysis in others. This article presents the experience of Sweden (as part of the European Union), the United Kingdom (which is slated soon to depart from the EU, via “Brexit”), and the United States (in the first year of the Trump administration). While Sweden and other members of the European Union continue to develop a vital and evolving body of public procurement law, the United Kingdom has been distracted by Brexit, and …

Contract Interpretation 2.0: Not Winner-Take-All But Best-Tool-For-The-Job, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

In a centuries-old debate among contracts scholars, one group supports a presumption favoring a text-centered approach to the interpretation of a writ-ten agreement—the plain meaning taken from the four corners—while oppo-nents urge a broader understanding of context—what the parties intended and the circumstances of their negotiation. The contending positions have so hard-ened that, in a jarring juxtaposition this Essay will reveal, recent academic classifications of the same state laws are exactly opposite to each other: contex-tualists classify certain states as contextualist that textualists say are textualist!

Yet despite the persistence of acute polarization, the author also docu-ments—and applauds—promising trends in …

Section 809 And “E-Portal” Proposals, By Cutting Bid Protests In Federal Procurement, Could Breach International Agreements And Raise New Risks Of Corruption, Christopher R. Yukins, Daniel Ramish

GW Law Faculty Publications & Other Works

Bid protests -- vendors’ challenges to contracting officials’ errors, either before or after award -- have been an established part of federal procurement for at least a century. Protests (sometimes called “challenges” or “remedies proceedings” abroad) are a recognized bulwark against corruption in the United States, and have become a standard part of procurement systems around the world, often at the urging of the United States. But new proposals being considered for U.S. government procurement in practice could dramatically limit bid protests, in the name of streamlining the procurement process. This drastic change to U.S. procurement practices could violate international …

Sas Institute Inc. V. Iancu: The Statute Is Hereby Clear, Andrew Michaels

GW Law Faculty Publications & Other Works

The Supreme doorkeeper has spoken: the statute is clear, and that's the law.

Campus Discourse And Democracy: Free Speech Principles Provide Sound Guidance Even After The Tumult Of 2017, Catherine J. Ross

GW Law Faculty Publications & Other Works

This Article argues that First Amendment doctrine provides a nuanced and adequate framework for responding to contemporary challenges involving the intersection of free speech, protests, outside agitators, and the risk of violence on college campuses. The Article places contemporary events and concerns in the context of classic free speech doctrine--which binds all public colleges and universities and which many privately-run colleges voluntarily commit to respecting. It also analyzes the import of the unique mission of universities as set out in three seminal university reports on freedom of expression that emphasize intellectual freedom, “full freedom of dissent,” and the imperative of …

How Should The U.S. Public Law System React To President Trump?, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

In this essay Professor Pierce uses six actions that President Trump has taken or threatened to take to illustrate the ways in which courts can preclude him from undermining core legal and cultural values while preserving his power and that of his successors to take all actions needed to execute effectively the powers conferred on the president in Article II of the constitution. He concludes that courts are capable of performing that difficult task through application of existing public law doctrines.

How Should the U.S. Public Law System React to President Trump?

Was Glass-Steagall's Demise Inevitable And Unimportant?, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

The demise of the Glass-Steagall Act was the result of affirmative policy decisions by federal regulators and Congress, and it was not the inevitable byproduct of market forces. Economic disruptions and financial innovations posed serious challenges to the viability of Glass-Steagall, beginning in the 1970s. However, federal regulators and Congress could have defended Glass-Steagall and made necessary adjustments to preserve its effectiveness. Instead, they supported efforts by large financial institutions to break down Glass-Steagall’s structural barriers, which separated commercial banks from securities firms and insurance companies.

Federal agencies opened a number of loopholes in Glass-Steagall’s barriers during the 1980s and …

Commercial Products And Services: Raising The Market Research Bar Or Much Ado About Nothing?, Steven L. Schooner

GW Law Faculty Publications & Other Works

This short piece discusses the Federal Circuit's recent decision in Palantir USG, Inc. v. United States, No. 17-1465 (Fed. Cir. September, 2018), affirming that “the Army failed to determine whether commercial items meet or could be modified to meet the agency’s needs and that, by failing to do so, the Army acted in an arbitrary and capricious manner in violation of 10 U.S.C. § 2377.” The decision appears to tilt the balance towards “commercial products” and “commercial services” (recently redefined in the 2019 NDAA § 836; 41 U.S.C. §§ 103, 103a), in effect, mandating that procuring agencies use Federal Acquisition …

§4.35 Evidence Of Similar Offenses In Sexual Assault And Child Molestation Cases, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the admissibility of evidence of prior similar offenses in sexual assault and child molestation cases under FRE 413 and 414. It discusses the purposes for which such evidence may be offered, the balancing required under FRE 403, and the roles of judge and jury.

§4.15 Prior Wrongs To Prove Specific Points, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the admissibility of prior bad acts or wrongs to prove specific points such as intent, knowledge, plan, or absence of mistake. It analyzes FRE 404(b) and its limits and the standard of proof required.

§3.13 “Presumptions” In Criminal Cases, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the constitutionality of “presumptions” in criminal cases. It discusses the leading case of Sandstrom v Montana and its holding that a presumption cannot be mandatory in a criminal case.

§8.84 “Testimonial” Hearsay —Reach And Limits Of The Crawford Doctrine, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the definition and scope of “testimonial” hearsay under the Crawford doctrine. It discusses the four factors that are most likely to qualify an out-of-court statement as testimonial hearsay under the Sixth Amendment. In addition to discussing the facts and holding of Crawford, it discusses the subsequent cases interpreting that opinion.

§7.7 Reliability Standard (Daubert, Frye), Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the Daubert standard of reliability for the admission of scientific evidence. It also addresses the requirements of FRE 702, which was amended after Daubert to impose a reliability standard for all expert testimony. It discusses the implications of this requirement, the scope of review, and the conflict among state authorities about the applicable standard for admitting scientific evidence or expert testimony generally.

§5.32 Marital Confidences Privilege, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the marital confidences privilege. This privilege applies to confidential communications by spouses made during the course of their marriage. The privilege continues even after the termination of the marriage. The privilege protects communications only, but includes conduct that is communicative in nature. Under the prevailing view, both spouses hold the confidences privilege.

§5.31 Spousal Testimonial Privilege, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the spousal testimonial privilege. It discusses the rationale and history of the privilege as well as its current requirements. The privilege allows a spouse to refuse to testify against the other spouse in a criminal proceeding, but does not allow a criminal defendant to block the testimony by his or her spouse if the testifying spouse chooses to waive the privilege. The privilege requires a lawful marriage and does not apply to sham marriages.

§5.29 Inadvertent Disclosure, Christopher B. Mueller

GW Law Faculty Publications & Other Works

This article addresses waiver of the attorney-client privilege by inadvertent disclosure, usually during discovery. It discusses the protections provided by FRE 502 when an attorney has taken “reasonable steps” to prevent the inadvertent disclosure and “reasonable steps” to rectify the error.

The Constitutional Case For Chevron Deference, Jonathan R. Siegel

GW Law Faculty Publications & Other Works

Prominent figures in the legal world have recently attacked the doctrine of Chevron deference, suggesting that Chevron is unconstitutional because it interferes with a court’s duty to exercise “independent judgment” when interpreting statutes. This Article shows that Chevron’s critics are mistaken. Chevron deference, properly understood, does not prevent courts from interpreting statutes. An interpretation that concludes that a statute delegates power to an executive agency is still an interpretation. The power implicitly delegated to an agency by an ambiguous statute is not the power to interpret the statute, but the power to make a policy choice within the limits set …

Executive Interview: Karen Thornton, Karen Thornton

GW Law Faculty Publications & Other Works

Interview with The George Washington University’s Karen Thornton, director of the Government Procurement Law and Master of Science in Government Contracts programs. This article presents background about the school's mission to educate, develop, and expand the acquisition community. Emphasis is placed on the school's role in generating scholarship and building leadership and professional skills in and out of the traditional classroom.

Copyright 2018, National Contract Management Association. Used with permission.

§3.8 Hard Cases Where Counterproof Is Sufficient But Not Conclusive, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the competing views of how presumptions operate when evidence is offered challenging the presumed fact. It discusses both the approach of FRE 301 as well as the approach adopted by the Uniform Rules of Evidence.

§8.85 The Davis “Emergency Exception”, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the “emergency exception” to the Crawford doctrine which allows out-of-court statements to be admitted against a criminal defendant when the “primary purpose” of making such statements was to enable a response to an “ongoing emergency.” It discusses the facts of Davis v. Washington which created the exception and subsequent cases determining the scope of the exception, including the Bryant and Clark cases.

§5.35 Psychotherapist-Patient Privilege, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the psychotherapist-patient privilege which was recognized by the Supreme Court in Jaffee v. Redmond. The privilege covers licensed social workers as well as licensed psychiatrists and psychologists. The articles discusses the scope of the privilege and exceptions to it.

§5.28 Waiver By Voluntary Disclosure, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses waiver of the attorney-client privilege by voluntary disclosure. The central requirements of such waiver are that it be voluntary and disclose a “significant part” of the privileged communication. Selective disclosure to particular individuals or entities will generally waive the privilege as to all. However, disclosure to another person within a privilege will not result in waiver. The article concludes by discussing the effect of agreements between attorneys about waiver and pretrial orders by courts under FRE 502.

§5.22 Crime-Fraud Exception, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the crime-fraud exception to the attorney-client privilege. It discusses the two-part test recognized by most courts. It also discusses the difficult issues of determining the intent of the client in consulting the lawyer and the line between past and ongoing criminal conduct. It concludes by addressing the proof necessary to claim the crime-fraud exception.

§5.12 Communication, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses what is a “communication” for purposes of the attorney-client privilege. It notes that observations, as distinguished from communications, are generally not privileged, but that when observations are a form of confidential communication they are privileged. The article discusses the trend toward a two-way privilege that covers communications from the lawyer to the client as well as from the client to the lawyer.

From Town Square To Twittersphere: The Public Forum Doctrine Goes Digital, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

Government officials like President Donald J. Trump and Maryland Governor Larry Hogan are increasingly using popular social media sites like Twitter and Facebook to connect and interact with their constituents and to solicit public comment on matters of public importance – whether on officially-designated government platforms (like https://www.facebook.com/GovLarryHogan/) or on unofficial platforms used for the same purposes. In recent years, government officials have increasingly turned to social media platforms like Twitter and Facebook in place of (and in addition to) actual town halls and other real-space forums to solicit public participation in policy formulation and to engage with their constituents. …

Human Rights Extraterritoriality: The Right To Privacy And National Security Surveillance, Francesca Bignami, Giorgio Resta

GW Law Faculty Publications & Other Works

This chapter focuses on the international right to privacy and national security surveillance by spy agencies. It assesses the extent to which the law of the United States and Europe (EU and ECtHR) afford extraterritorial protection for the right to privacy, in furtherance of the international human right to privacy. The chapter concludes that U.S. law draws a stark line between insiders (U.S. citizens and permanent residents) and outsiders, and affords significantly more protection for insiders. On the European side, even though the EU does not have jurisdiction internally over spy agencies, it does have the power to regulate foreign …

How American Rejectionism Undermines International Economic Law, Steve Charnovitz

GW Law Faculty Publications & Other Works

The completion of the Trump Administration’s first two years is an appropriate moment to take stock of the United States of America’s aggressive international economic policies. The Trump Administration is carrying out a new form of American rejectionism powered by four horsemen of economic instability: first, the rejection of the international rule of law; second, the rejection of open markets; third, the rejection of economic peace in favour of perpetual economic war; and fourth, the rejection of the global interest. The analysis herein shows how these four rejectionist policies are harming the United States, other countries, and the global order. …

Divided Infringement, Economics, And The Common Law, Dmitry Karshtedt

GW Law Faculty Publications & Other Works

This essay responds to and builds on "Economic Theory, Divided Infringement, and Enforcing Interactive Patents," an article published by Professor Keith Robinson. In his article, Professor Robinson analyzed liability under various tests courts have developed to address the so-called "divided infringement" problem, which arises when multiple entities perform the steps of a method patent claim, under the three leading economic theories of patent law — reward theory, prospect theory, and rent-dissipation theory. In particular, Professor Robinson concluded that imposition of liability for divided infringement of method claims under joint enterprise principles is consistent with all three of these theories.

This …

Legal Jurisdiction And The Deterritorialization Of Data, Paul Schiff Berman

GW Law Faculty Publications & Other Works

Electronic data—everything from e-mails and text messages to Facebook and Instagram posts to Twitter pronouncements to drone warfare data to search algorithms to financial transactions to cloud data storage—travels around the globe with little relationship to physical territory. In addition, all of this data is often in the custody and control of data intermediaries such as Google, Facebook, Twitter, Apple, Microsoft, Amazon, private military contractors, and so on.

Three important consequences flow from this ubiquitous technology-enabled, data-driven global societal activity. First, the territorial location of data becomes increasingly arbitrary and substantively unimportant. If I, as a U.S. citizen based in …