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Articles 1 - 30 of 77
Full-Text Articles in Law
On The Alienability Of Legal Claims, Michael B. Abramowicz
On The Alienability Of Legal Claims, Michael B. Abramowicz
GW Law Faculty Publications & Other Works
Courts have become increasingly skeptical about rules restricting plaintiffs' ability to sell legal claims, and legal commentators have argued that markets for claims would be efficient, moving claims to those who can prosecute them most efficiently. Claim sales intuitively might appear to present a clash of economic and philosophical arguments, with perceived efficiency benefits coming at the expense of societal commitments to values other than efficiency. In this Article, Professor Abramowicz argues that economic and philosophical arguments do point in opposite directions, but in the reverse directions from what one might expect. A range of philosophical and other noneconomic considerations, …
Patent Auctions, Michael B. Abramowicz
Patent Auctions, Michael B. Abramowicz
GW Law Faculty Publications & Other Works
In his famous paper advancing a prospect theory of patents, Edmund Kitch found inspiration in, but quickly dismissed, a footnote authored by Yoram Barzel suggesting that rights to inventions might be distributed through an auction mechanism. Kitch maintained that the patent system itself achieves the benefit of an auction by giving control over the inventive process at a relatively early stage. The patent system, moreover, avoids the need for governmental officials in an auction regime to define the boundaries of inventions that have not yet been created.
Patent auctions, however, may be more appealing if the auctions are for rights …
A Theory Of Copyright's Derivative Right And Related Doctrines, Michael B. Abramowicz
A Theory Of Copyright's Derivative Right And Related Doctrines, Michael B. Abramowicz
GW Law Faculty Publications & Other Works
Borrowing from the rent dissipation literature that has proven useful in patent analysis, in this Article I provide an economic foundation for copyright’s derivative right to prepare sequels and adaptations and suggest a straightforward doctrinal test for that right. I argue that the suppression of competition in creating adaptations of the same copyrighted expression, rather than being a loss, might instead be the derivative right’s chief economic virtue, giving an author control over adaptations and limiting the production of those that would be close substitutes for one another. In Part I, I explain and question the conventional justification of the …
Commentary On The Acquisition Workforce, Steven L. Schooner, Christopher R. Yukins
Commentary On The Acquisition Workforce, Steven L. Schooner, Christopher R. Yukins
GW Law Faculty Publications & Other Works
Recognizing the need to focus on the strategic management of the federal acquisition workforce, the Office of Federal Procurement Policy (OFPP) promulgated Policy Letter 05-01, Developing and Managing the Acquisition Workforce. These two brief pieces discuss the policy letter and what it signals to the acquisition community. The first, Empty Promise for the Acquisition Workforce, concludes that, although the letter's title optimistically heralded a bold step forward, OFPP both aimed too low and missed the mark. The letter attempted to redefine cosmetically the acquisition workforce and describe how a portion of this deputized acquisition workforce should be trained. While the …
Risky Business: Managing Interagency Acquisition, Steven L. Schooner
Risky Business: Managing Interagency Acquisition, Steven L. Schooner
GW Law Faculty Publications & Other Works
This brief piece applauds the Government Accountability Office (GAO) for adding the management of interagency contracting to its High Risk List. It suggests that interagency acquisition, the poster child for the flexible, streamlined, businesslike approach of the 1990's acquisition reform movement, has become the federal procurement system's Achilles heel. It recommends that the government needs more qualified professionals to proactively craft results-oriented contracts and to manage effectively contractors' performance. Finally it suggests commencing a meaningful conversation about the appropriate role of businesslike models, generally, and fees, specifically, in governance.
The Faith-Based Initiative And The Constitution, Ira C. Lupu, Robert W. Tuttle
The Faith-Based Initiative And The Constitution, Ira C. Lupu, Robert W. Tuttle
GW Law Faculty Publications & Other Works
This paper, originally presented as the Annual Lecture at DePaul University's Church/State Center, addresses the many constitutional issues raised by President George W. Bush's Faith-Based and Community Initiative. Part I of the paper provides the political and legal background of the Initiative, up to and including the recent flurry of Executive Branch activity to implement it. Part II of the paper constructs the constitutional prism through which we believe the Initiative, like all constitutional questions relating to religion, should be viewed. In particular, we analyze the law of the Religion Clauses in terms of the constitutional distinctiveness or non-distinctiveness of …
Understanding The Current Wave Of Procurement Reform - Devolution Of The Contracting Function, Christopher R. Yukins
Understanding The Current Wave Of Procurement Reform - Devolution Of The Contracting Function, Christopher R. Yukins
GW Law Faculty Publications & Other Works
This brief paper proffers a conceptual model for procurement reform in the United States today. The paper argues that much of the current reform can be understood as an attempt to bring order to the devolution of the contracting function, from users, to agency contracting officials, to centralized purchasing agencies, and now, finally, to private contractors. The paper argues that this devolution is, in fact, an outsourcing of the contracting function, and that therefore classic models of private-sector outsourcing should be applicable. The government should, in other words, be asking whether the contracting function should be outsourced, and if so, …
Organizational Conflicts Of Interest: A Growing Integrity Challenge, Daniel I. Gordon
Organizational Conflicts Of Interest: A Growing Integrity Challenge, Daniel I. Gordon
GW Law Faculty Publications & Other Works
Recent experience in the United States suggests that public procurement professionals increasingly encounter a particular kind of conflict of interest, organizational conflicts of interest (OCIs). OCIs arise in situations where an entity plays two or more roles that are, in some sense, at odds with one another. This article endeavors to set out some points for consideration in this increasingly important area. Alleged OCIs have been identified in various activities of the U.S. federal procurement process, from contracts for security services in Iraq to public/private competitions for work to be performed in the U.S. This article first suggests reasons for …
Lessons For Competition Policy From The Vitamins Cartel, William E. Kovacic
Lessons For Competition Policy From The Vitamins Cartel, William E. Kovacic
GW Law Faculty Publications & Other Works
Mergers have the potential for negative social welfare consequences from increased likelihood or effectiveness of future collusion. This raises the question of whether there are meaningful thresholds for the post-merger industry that should trigger significant scrutiny by the Department of Justice or Federal Trade Commission. This paper provides empirical analysis relevant to this question. The data does not come from an industry in which there were mergers, but instead from an industry in which explicit collusion was admittedly rampant in the 1990's, the Vitamins Industry. Different vitamin products are produced by different numbers of firms, and for different vitamin products, …
Encyclopedia Of Genocide And Crimes Against Humanity, Dinah L. Shelton
Encyclopedia Of Genocide And Crimes Against Humanity, Dinah L. Shelton
GW Law Faculty Publications & Other Works
This three-volume encyclopedia contains information and photographs about historical and recent instances of genocide and crimes against humanity. The introduction provides a brief history of recognition and definitions of genocide and related war crimes. The volumes focus on the political leaders in charge of the genocides and war crimes in addition to other facts about the crimes themselves.
'Murder And The Reasonable Man' Revisited: A Response To Victoria Nourse, Cynthia Lee
'Murder And The Reasonable Man' Revisited: A Response To Victoria Nourse, Cynthia Lee
GW Law Faculty Publications & Other Works
As King Solomon understood, custody disputes ordinarily allow no easy answers. Increasingly, legal actors have begun to rely on the child's custodial preference as a proxy for her best interests. In an effort to ascertain this preference without subjecting the child to the trauma of courtroom testimony, many states authorize courts to interview children in camera. Good intentions notwithstanding, these custody interviews pose considerable risk to children, to their parents, and to the State's best-interests quest.
These risks increase dramatically when in-camera interviews serve as tools for searching out preferences that have not been publicly volunteered; when children's preferences are …
Sex Discrimination In The Nineties, Seventies Style: Case Studies In The Preservation Of Male Workplace Norms, Michael Selmi
Sex Discrimination In The Nineties, Seventies Style: Case Studies In The Preservation Of Male Workplace Norms, Michael Selmi
GW Law Faculty Publications & Other Works
The prevailing sentiment today is that overt intentional sex discrimination in the workplace has receded substantially and has been replaced by more complicated practices of subtle or structural discrimination often tied to women's family commitments. This article challenges that consensus by exploring the rise of class action sex discrimination cases that have uncovered what ought to be defined as overt intentional discrimination with a design to preserve existing male norms in the workplace. The article analyzes cases that have arisen in the securities and grocery industries, as well as a spate of class action sexual harassment cases, all of which …
Civil Society And International Organizations: A Liberal Framework For Global Governance, Francesca Bignami
Civil Society And International Organizations: A Liberal Framework For Global Governance, Francesca Bignami
GW Law Faculty Publications & Other Works
Over the past decade, international economic organizations have come under attack as illegitimate and oppressive. The remedy, according to the critics, is civil society: non-state associations should have a right to participate in the policymaking activities of international organizations. But the moral grounds for giving civil society such a central role in global governance, together with the ramifications of those moral grounds for organizational reform in the international arena, have not yet been systematically analyzed. Why are associations outside the state better placed than trained, career civil servants and elected politicians to decide on international aid, the regulatory pre-requisites for …
Trial By Market: A Thought Experiment, Michael B. Abramowicz
Trial By Market: A Thought Experiment, Michael B. Abramowicz
GW Law Faculty Publications & Other Works
This Article considers the possibility of providing incentives to judges to decide cases in the same way that an appellate panel would decide them. Random selection of a proportion of cases for retrial could be used to encourage judges to place aside their preferences in deference to the perceived preferences of a majority of judges. Providing such incentives to judges may reduce the need for alternative approaches to reducing judicial discretion, such as substantive law based on rules rather than on discretion. An information market similarly could be used to accomplish the task of adjudication, with some cases randomly selected …
Ip Transactions: On The Theory & Practice Of Commercializing Innovation, F. Scott Kieff
Ip Transactions: On The Theory & Practice Of Commercializing Innovation, F. Scott Kieff
GW Law Faculty Publications & Other Works
All too often within organizations and communities, innovations are not generated or put to use as rapidly or as broadly as they could be. Chief targets for blame include the problems of transaction costs, agency costs, lack of coordination, and improper incentives. Borrowing from the rich literature in the field generally known as new institutional economics, which has studied these types of problems more broadly, this Article elucidates how some practical tools might be expected to mitigate such problems. Particular arrangements of formal law and informal practice may help reach across the "valley of death" between early stage technologies and …
Conflict Of Laws, Globalization, And Cosmopolitan Pluralism, Paul Schiff Berman
Conflict Of Laws, Globalization, And Cosmopolitan Pluralism, Paul Schiff Berman
GW Law Faculty Publications & Other Works
This essay is a contribution to a symposium at the January 2005 annual meeting of the Association of American Law Schools Section on Conflict of Laws. More than ten years ago, German theorist Gunther Teubner called for the creation of an "intersystemic conflicts law," derived not just from collisions between the distinct nation-states of private international law, but from what he described as "conflicts between autonomous social subsystems." Since then, the web of intersystemic lawmaking Teubner described has only grown more complex. The collision of these multiple legal and quasi-legal normative systems requires, as Teubner suggested, a broader approach to …
Playing With Fire: Feminist Legal Theorists And The Tools Of Economics, Neil H. Buchanan
Playing With Fire: Feminist Legal Theorists And The Tools Of Economics, Neil H. Buchanan
GW Law Faculty Publications & Other Works
During the discussions at Professor Fineman’s recent feminist legal theory workshops, several participants argued that feminists should use the “tools” of mainstream economics to build a more rigorous foundation for their analyses. Feminist legal theorists, it was argued, had their hearts in the right place, but their arguments lacked sufficient intellectual (“hard-headed”) rigor to carry the day. Based on this view, the best strategy would be to use economic tools (which, these participants argued, are value neutral) to build a rigorous, logical foundation on which legal feminists could confidently stand. The problem – which applies to all areas of legal …
Dignity In Race Jurisprudence, Christopher A. Bracey
Dignity In Race Jurisprudence, Christopher A. Bracey
GW Law Faculty Publications & Other Works
Racial justice demands dignity; the acknowledgment and affirmation of the equal humanity of people of color. Denying dignity on the basis of color creates racial subordination, which triggers dignitary harms such as individual acts of racism and communal exclusion leading to diminished health, wealth, income, employment and social status. The legal recognition of dignity is therefore a prerequisite to political and social equality. For Americans of African descent, dignity was long denied by the legal endorsement of slavery and the degrading policies of segregation. The struggle to be treated equally human eventually found success in landmark cases such as Brown …
How Do We Know When An Enterprise Exists? Unanswerable Questions And Legal Polycentricity In China, Donald C. Clarke
How Do We Know When An Enterprise Exists? Unanswerable Questions And Legal Polycentricity In China, Donald C. Clarke
GW Law Faculty Publications & Other Works
One of the most perplexing aspects of Chinese enterprise law concerns the conditions under which state institutions will acknowledge and give effect to the existence of a business organization distinct from the natural or legal persons that participate in its operations. The answer might appear to be simple - they will do so whenever legally stipulated conditions are met - but this answer would be wrong. State institutions often give real and meaningful effect to the existence of entities with no apparent statutory basis, or whose legal basis dictates consequences that seem at odds with the consequences called for by …
From International Law To Law And Globalization, Paul Schiff Berman
From International Law To Law And Globalization, Paul Schiff Berman
GW Law Faculty Publications & Other Works
International law's traditional emphasis on state practice has long been questioned, as scholars have paid increasing attention to other important - though sometimes inchoate - processes of international norm development. Yet, the more recent focus on transnational law, governmental and non-governmental networks, and judicial influence and cooperation across borders, while a step in the right direction, still seems insufficient to describe the complexities of law in an era of globalization. Accordingly, it is becoming clear that "international law" is itself an overly constraining rubric and that we need an expanded framework, one that situates cross-border norm development at the intersection …
From Pluralism To Individualism: Berle And Means And 20th-Century American Legal Thought, Dalia Tsuk Mitchell
From Pluralism To Individualism: Berle And Means And 20th-Century American Legal Thought, Dalia Tsuk Mitchell
GW Law Faculty Publications & Other Works
This article is an intellectual history of Adolf A. Berle, Jr. and Gardiner C. Means, The Modern Corporation and Private Property (1932). I argue that Berle and Means's concern was not the separation of ownership from control in large pubic corporations, as many scholars have suggested, but rather the allocation of power between the state and a wide range of institutions. As I demonstrate, Berle and Means shared a legal pluralist vision of the modern state. Legal pluralism treated organizations as centers of power that had to be accommodated within the political and legal structure. Berle and Means viewed collective …
Contractor Atrocities At Abu Ghraib: Compromised Accountability In A Streamlined, Outsourced Government, Steven L. Schooner
Contractor Atrocities At Abu Ghraib: Compromised Accountability In A Streamlined, Outsourced Government, Steven L. Schooner
GW Law Faculty Publications & Other Works
Staggering numbers of contractor personnel have supported, and continue to support, American combat and peace-keeping troops and the government's Herculean reconstruction efforts in Iraq. Yet recent experiences in Iraq, particularly allegations that contractor personnel were involved in inappropriate and potentially illegal activities at the Abu Ghraib prison, expose numerous areas of concern with regard to the current state of federal public procurement. Sadly, because these incidents coincide with a series of procurement scandals, the likes of which the government has not experienced since the late 1980's, they cannot be dismissed so easily as anomalies.
The Abu Ghraib abuses suggest at …
Legal Scholarship Symposium: The Scholarship Of Lawrence M. Friedman, Robert J. Cottrol
Legal Scholarship Symposium: The Scholarship Of Lawrence M. Friedman, Robert J. Cottrol
GW Law Faculty Publications & Other Works
Lawrence M. Friedman has achieved a singular preeminence as a legal historian for articulating a new vision of legal history as a discipline in his 1973 work entitled A History of American Law. This book treats American law as a mirror of society. At the time, Friedman's vision was still something quite new in American legal historiography. James Willard Hurst's notions of legal history as a sociolegal inquiry would heavily influence Friedman, helping to move the field into new and often surprising precincts. Friedman's approach to legal history is one that introduced us to previously unexamined actors and institutions.
Whether …
Legal Scholarship Symposium: The Scholarship Of Lawrence M. Friedman, Robert J. Cottrol
Legal Scholarship Symposium: The Scholarship Of Lawrence M. Friedman, Robert J. Cottrol
GW Law Faculty Publications & Other Works
Lawrence M. Friedman has achieved a singular preeminence as a legal historian for articulating a new vision of legal history as a discipline in his 1973 work entitled A History of American Law. This book treats American law as a mirror of society. At the time, Friedman's vision was still something quite new in American legal historiography. James Willard Hurst's notions of legal history as a sociolegal inquiry would heavily influence Friedman, helping to move the field into new and often surprising precincts. Friedman's approach to legal history is one that introduced us to previously unexamined actors and institutions. Whether …
Scholarly Profit Margins And The Legal Scholarship Network: Reflections On The Web, Lawrence A. Cunningham
Scholarly Profit Margins And The Legal Scholarship Network: Reflections On The Web, Lawrence A. Cunningham
GW Law Faculty Publications & Other Works
Controversy surrounding scholastic rankings arises, in part, because of complexities associated with measuring academic contributions. Legal researchers use various methodologies to assess scholarly production and impact but all suffer from inherent limitations and none provides data useful to scholarly self-reflection. The 10-year old Legal Scholarship Network (LSN) offers potential to improve considerably on both scores of public and personal assessment. This Essay critically evaluates approaches to conceptualizing scholarly profit margins, explores how LSN can enhance these conceptions, and opens new frontiers for this innovative Web-based repository of legal writing.
Government For Hire: Privatizing Foreign Affairs And The Problem Of Accountability Under International Law, Laura T. Dickinson
Government For Hire: Privatizing Foreign Affairs And The Problem Of Accountability Under International Law, Laura T. Dickinson
GW Law Faculty Publications & Other Works
Although the privatization of governmental functions has long since become a fixture of the American political landscape and has engendered a rich scholarly debate among domestic administrative law scholars, far less attention has been paid to the simultaneous privatization of what might be called the foreign affairs functions of government. Yet privatization is as significant in the international realm as it is domestically. The United States and other countries now regularly rely on private parties to provide all forms of foreign aid, to perform once sacrosanct diplomatic tasks such as peace negotiations, and even to undertake a wide variety of …
Accountability Of State And Non-State Actors For Human Rights Abuses In The 'War On Terror', Laura T. Dickinson
Accountability Of State And Non-State Actors For Human Rights Abuses In The 'War On Terror', Laura T. Dickinson
GW Law Faculty Publications & Other Works
The decisions regarding detainees in the so-called "war on terror" - Hamdi, Padilla, and Rasul - leave a number of questions unresolved. This essay focuses on one question in particular: What happens when terrorists are detained not by U.S. authorities, but by private contractors hired by U.S. authorities? Domestically and internationally, we are seeing an increasing turn to private contractors performing what we might think of as core governmental functions. Accordingly, it is vital to consider to what extent private actors involved in the treatment of detainees in the war on terror can be held accountable for their actions. Although …
Improving Regulation Through Incremental Adjustment, Robert L. Glicksman, Sidney A. Shapiro
Improving Regulation Through Incremental Adjustment, Robert L. Glicksman, Sidney A. Shapiro
GW Law Faculty Publications & Other Works
Claiming that existing regulation is excessive and irrational, regulatory critics have successfully convinced Congress and the White House to implement a plethora of procedural requirements to analyze a proposed regulation before it is promulgated. In our book, Risk Regulation at Risk: Restoring A Pragmatic Approach (2003), we argued that the previous initiatives address the possibility of regulatory failure on the wrong end of the regulatory policy implementation process. We suggested that one way of improving regulation would be to rely on incremental adjustments in regulation on the back end of the regulatory process. This article addresses in more detail the …
Ipse Dixit At The I.C.J., Sean D. Murphy
Ipse Dixit At The I.C.J., Sean D. Murphy
GW Law Faculty Publications & Other Works
No abstract provided.
The Doctrine Of Preemptive Self-Defense, Sean D. Murphy
The Doctrine Of Preemptive Self-Defense, Sean D. Murphy
GW Law Faculty Publications & Other Works
To the extent that the intervention in Iraq in 2003 is regarded as an act of preemptive self-defense, the aftermath of that intervention may presage an era where states resist resorting to large-scale preemptive self-defense. The intervention in Iraq highlighted considerable policy difficulties with the resort to preemptive self-defense: an inability to attract allies; the dangers of faulty intelligence regarding a foreign state's weapons programs and relations with terrorist groups; the political, economic and human costs in pursuing wars of choice; and the resistance of a local populace or radicalized factions to what is viewed as an unwarranted foreign invasion …