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Articles 1 - 30 of 78
Full-Text Articles in Law
§ 5:34 Waiver Of Privilege — Inadvertent Or Involuntary Disclosure, Laird Kirkpatrick, Christopher B. Mueller
§ 5:34 Waiver Of Privilege — Inadvertent Or Involuntary Disclosure, Laird Kirkpatrick, Christopher B. Mueller
GW Law Faculty Publications & Other Works
In their first twenty years (1975-1995), the federal rules of evidence changed little. However, changes have accelerated since 1993, with creation of the Evidence Rules Advisory Committee which meets regularly and proposes changes to the rules almost every year. One change, which grew out of the work of a special committee, was the addition of an entirely new provision, Rule 502, which governs waiver of attorney-client privilege. This rule became law in 2008 through congressional enactment (privilege rules must be passed by Congress in order to take effect). Sections 5:34 discusses this new provision. Under "Privileges: Rule 501,"section 5:34 discusses …
The Financial Services Industry's Misguided Quest To Undermine The Consumer Financial Protection Bureau, Arthur E. Wilmarth Jr.
The Financial Services Industry's Misguided Quest To Undermine The Consumer Financial Protection Bureau, Arthur E. Wilmarth Jr.
GW Law Faculty Publications & Other Works
Congress decided to establish the Consumer Financial Protection Bureau (“CFPB”) after concluding that federal bank regulators had utterly failed to protect consumers during the credit boom leading up to the financial crisis. Because of the prudential regulators’ systemic failures, Congress vested CFPB with sole responsibility and clear accountability for protecting consumers of financial services. Title X of the Dodd-Frank Wall Street Reform and Consumer Protection Act delegates broad rulemaking and enforcement powers to CFPB. To insulate CFPB from political influence, Title X grants CFPB substantial autonomy as well as an assured source of funding from the Federal Reserve System.
The …
Forward To Festschrift Honoring Chief Judge Rader, Martin J. Adelman
Forward To Festschrift Honoring Chief Judge Rader, Martin J. Adelman
GW Law Faculty Publications & Other Works
This Forward discusses papers that highlight the judicial work of Chief Judge Rader in the field of patent law.
Behavioral Economics: Implications For Regulatory Behavior, William E. Kovacic, James C. Cooper
Behavioral Economics: Implications For Regulatory Behavior, William E. Kovacic, James C. Cooper
GW Law Faculty Publications & Other Works
Behavioral economics (BE) examines the implications for decision-making when actors suffer from biases documented in the psychological literature. This article considers how such biases affect regulatory decisions. The article posits a simple model of a regulator who serves as an agent to a political overseer. The regulator chooses a policy that accounts for the rewards she receives from the political overseer — whose optimal policy is assumed to maximize short-run outputs that garner political support, rather than long-term welfare outcomes — and the weight the regulator puts on the optimal long run policy. Flawed heuristics and myopia are likely to …
Insuring Against A Derivative Disaster: The Case For Decentralized Risk Management, Jeffrey Manns
Insuring Against A Derivative Disaster: The Case For Decentralized Risk Management, Jeffrey Manns
GW Law Faculty Publications & Other Works
This Article makes the case for a decentralized risk management strategy for identifying and defusing future bubble markets. It suggests how the government can enlist private "gatekeeper guarantors" to provide integrated insurance and monitoring roles to complement the government’s management of systemic risks. It proposes the enactment of a federal mandate that systemically significant financial entities (or participants in systemically significant financial sectors) secure private guarantees to cover a percentage of their potential liabilities (above a loss threshold). Gatekeeper guarantors would act as “circuit breakers” of systemic risk by serving as self-interested monitors of risk taking and tying clients’ coverage …
Nullifying The Debt Ceiling Threat Once And For All: Why The President Should Embrace The Least Unconstitutional Option, Neil H. Buchanan, Michael C. Dorf
Nullifying The Debt Ceiling Threat Once And For All: Why The President Should Embrace The Least Unconstitutional Option, Neil H. Buchanan, Michael C. Dorf
GW Law Faculty Publications & Other Works
In August 2011, Congress and the President narrowly averted economic and political catastrophe, agreeing at the last possible moment to authorize a series of increases in the national debt ceiling. This respite, unfortunately, was merely temporary. The amounts of the increases in the debt ceiling that Congress authorized in 2011 were only sufficient to accommodate the additional borrowing that would be necessary through the end of 2012. In an economy that continued to show chronic weakness -- weakness that continues to this day -- the federal government would pre-dictably continue to collect lower-than-normal tax revenues and to make higher-than-normal expenditures, …
Commitment Bonds, Michael B. Abramowicz
Commitment Bonds, Michael B. Abramowicz
GW Law Faculty Publications & Other Works
This Article introduces compensating commitment bonds, which make it more affordable for a government, entity, or individual to commit to some course of action. These bonds, like traditional government or corporate bonds, can generate revenue for committing parties. A bond seller makes a commitment and promises to pay a forfeit if the seller fails to meet the bond conditions. The bond buyer pays the seller to be contractually designated as the recipient of any amounts the bond seller forfeits. This approach has potential application in a range of legal situations. Governments and other parties may use such bonds to facilitate …
Using Law And Equity For Poor And The Environment, Dinah L. Shelton
Using Law And Equity For Poor And The Environment, Dinah L. Shelton
GW Law Faculty Publications & Other Works
This chapter discusses ways of overcoming “adaptation apartheid,” a term used to describe the differences in reactions to environmental disasters between poor and wealthy people and countries. The chapter focuses on “environmental protection and poverty alleviation.” The first section describes the connections between poverty and environmental damage, and the second section discusses distributive justice, defined as “an ethical imperative based on the notion of moral reciprocity.” Third, the chapter lists the sources of law pertaining to environmental justice, including private law, regulation, market mechanisms, and rights-based approaches. The chapter concludes by noting the advantages and challenges to a rights-based approach …
A House Of Cards Falls: Why 'Too Big To Debar' Is All Slogan And Little Substance, Jessica Tillipman
A House Of Cards Falls: Why 'Too Big To Debar' Is All Slogan And Little Substance, Jessica Tillipman
GW Law Faculty Publications & Other Works
“A House of Cards Falls: Why ‘Too Big to Debar’ is All Slogan and Little Substance” is a critical response to the article, "FCPA Sanctions: Too Big to Debar" by Drury D. Stevenson and Nicholas J. Wagoner, which aptly demonstrates a common, yet fundamentally flawed understanding of the FAR 9.4 suspension and debarment regime. "Too Big to Debar" asserts that when large government contractors violate the Foreign Corrupt Practices Act (FCPA), they should be “punished” by being debarred from the procurement system. Indeed, despite FAR 9.4’s clear directive to use debarment only for the purpose of protecting the government, not …
The Merger Agreement Myth, Jeffrey Manns, Robert Anderson
The Merger Agreement Myth, Jeffrey Manns, Robert Anderson
GW Law Faculty Publications & Other Works
Practitioners and academics have long assumed that financial markets value the deal-specific legal terms of public company acquisition agreements, yet legal scholarship has failed to subject this premise to empirical scrutiny. The conventional wisdom is that markets must value the tremendous amount of time and money invested in negotiating and tailoring the legal provisions of acquisition agreements to address the distinctive risks facing each merger. But the empirical question remains of whether markets actually price the legal terms of acquisition agreements or whether they solely value the financial terms of mergers. To investigate this question, we designed a modified event …
The Necessity Of Tradeoffs In A Properly Functioning Civil Procedure System, Alan B. Morrison
The Necessity Of Tradeoffs In A Properly Functioning Civil Procedure System, Alan B. Morrison
GW Law Faculty Publications & Other Works
No abstract provided.
Owning Versus Renting: Thoughts On Housing Policy, Tax Incentives, And Middle Class Dreams, Neil H. Buchanan
Owning Versus Renting: Thoughts On Housing Policy, Tax Incentives, And Middle Class Dreams, Neil H. Buchanan
GW Law Faculty Publications & Other Works
This document gathers together 22 essays that were originally published as online commentary by Professor Neil H. Buchanan, between 2008 and 2012. All but one of the essays first appeared on the Dorf on Law blog (www.dorfonlaw.org). In these essays, Professor Buchanan discusses the arguments for and against government support of individual home ownership. Most of the essays focus on how to move away from the model of individual ownership. The latter essays, however, begin to embrace the possibility that home ownership incentives should be expanded, to mitigate the current upside-down quality of those subsidies, and to preserve middle-class professional …
The Institutional Case For Judicial Review, Jonathan R. Siegel
The Institutional Case For Judicial Review, Jonathan R. Siegel
GW Law Faculty Publications & Other Works
The “popular constitutionalism” movement has revived the debate over judicial review. Popular constitutionalists have attacked judicial review as being illegitimate in a democracy or inconsistent with original intent, and they have argued that the Constitution should be enforced through popular, majoritarian means, such as elections and legislative agitation. This Article shows in response that the judicial process has institutional characteristics that make judicial review the superior method of constitutional enforcement. Prior literature has focused on just one such institutional characteristic — the political insulation of judges. This Article, by contrast, shows that the case for judicial review rests on a …
Brief For Royal Dutch Petroleum Co. Et Al., As Amici Curiae Supporting Respondents, Kiobel V. Royal Dutch Petroleum Co., 132 S.Ct. 1738 (2012) (No. 10-1491)., Bradford R. Clark, Anthony J. Bellia Jr.
Brief For Royal Dutch Petroleum Co. Et Al., As Amici Curiae Supporting Respondents, Kiobel V. Royal Dutch Petroleum Co., 132 S.Ct. 1738 (2012) (No. 10-1491)., Bradford R. Clark, Anthony J. Bellia Jr.
GW Law Faculty Publications & Other Works
No abstract provided.
District Court Review Of Findings Of Fact Proposed By Magistrates: Myth Or Reality, Richard J. Pierce Jr
District Court Review Of Findings Of Fact Proposed By Magistrates: Myth Or Reality, Richard J. Pierce Jr
GW Law Faculty Publications & Other Works
In this essay, Professor Pierce criticizes the decisions in six circuits that forbid a district judge from rejecting a finding of fact proposed by a magistrate without first conducting a new evidentiary hearing. Those decisions are inconsistent with the Magistrates Act of 1968, the 1951 decision of the Supreme Court that authorizes agencies to reject findings of fact made by Administrative Law Judges without conducting a new evidentiary hearing, the consistent findings of empirical studies that a fact-finder’s ability to observe the demeanor of witnesses does not improve the fact-finder’s ability to evaluate the credibility of witnesses, and Articles I …
Legal Disputes Related To Climate Change Will Continue For A Century, Richard J. Pierce Jr
Legal Disputes Related To Climate Change Will Continue For A Century, Richard J. Pierce Jr
GW Law Faculty Publications & Other Works
Professor Pierce summarizes the expected effects of anthropogenic climate change, discusses the expensive and ineffective efforts that have been attempted to date to mitigate climate change, describes a more promising strategy for the future, and explains why the US must prepare to make major changes in law to adapt to some significant changes in climate that are inevitable. This paper was originally presented to the DC Bar as the 2012 Harold Leventhal Lecture.
Competition Agency Design: What's On The Menu?, William E. Kovacic, David A. Hyman
Competition Agency Design: What's On The Menu?, William E. Kovacic, David A. Hyman
GW Law Faculty Publications & Other Works
In recent years the United Kingdom and various other countries have decided to restructure the institutions responsible for enforcing competition laws. How should a nation choose among myriad alternative arrangements? This paper lays out nine major institutional choices that governments must address in designing the implementation mechanism for a competition law. The paper discusses tradeoffs associated with each choice and examines interdependencies among different design elements. In doing so, the paper offers a structured framework that countries can use in forming new competition systems or altering existing institutional arrangements.
Counter-Claims At The International Court Of Justice (2012), Sean D. Murphy
Counter-Claims At The International Court Of Justice (2012), Sean D. Murphy
GW Law Faculty Publications & Other Works
In proceedings before the International Court of Justice (I.C.J.), a “counter-claim” is “an autonomous legal act” by the Respondent in a contentious case, “the object of which is to submit a new claim to the Court,” one that is “linked to the principal claim, in so far as, formulated as a ‘counter’ claim, it reacts to" the principal claim. A counter-claim is not a defense on the merits to the principal claim; while it is a reaction to that claim, it is pursuing objectives other than simply dismissal of the principal claim. Hence, the reason for allowing a counter-claim to …
Book Review Of The Law Of International Responsibility (James Crawford, Alain Pellet, And Simon Olleson Eds., Oxford University Press, 2010), Sean D. Murphy
Book Review Of The Law Of International Responsibility (James Crawford, Alain Pellet, And Simon Olleson Eds., Oxford University Press, 2010), Sean D. Murphy
GW Law Faculty Publications & Other Works
If one were to affix a label to the first decade of work by the UN International Law Commission in this century, a good one to choose would be the “decade of codifying international responsibility.” No fewer than five projects relating to that general topic were brought to a conclusion by the Commission in the space of ten years, constituting a formidable effort at codification that may well influence the field of public international law for years to come. Given that the Commission had spent decades considering, as part of a single project, myriad aspects of state responsibility, in some …
The Crime Of Aggression At The Icc, Sean D. Murphy
The Crime Of Aggression At The Icc, Sean D. Murphy
GW Law Faculty Publications & Other Works
In May 2012, Liechtenstein became the first State to ratify amendments to the Rome Statute of the International Criminal Court (ICC) that seek to activate the Court’s jurisdiction over the crime of aggression. The amendments, which were adopted by consensus at the ICC Review Conference that met in Kampala, Uganda, in 2010, establish definitions for “act of aggression” and “crime of aggression,” and provide the Court with jurisdiction even in the absence of a referral from the Security Council. At the same time, the States Parties decided that the ICC’s jurisdiction over this crime will not become operative until at …
Commitment Bonds, Michael B. Abramowicz, Ian Ayres
Commitment Bonds, Michael B. Abramowicz, Ian Ayres
GW Law Faculty Publications & Other Works
This Article introduces compensating commitment bonds, which make it more affordable for a government, entity, or individual to commit to some course of action. These bonds, like traditional government or corporate bonds, can generate revenue for committing parties. A bond seller makes a commitment and promises to pay a forfeit if the seller fails to meet the bond conditions. The bond buyer pays the seller to be contractually designated as the recipient of any amounts the bond seller forfeits. This approach has potential application in a range of legal situations. Governments and other parties may use such bonds to facilitate …
Governance Of Public Lands, Public Agencies, And Natural Resources, Robert L. Glicksman
Governance Of Public Lands, Public Agencies, And Natural Resources, Robert L. Glicksman
GW Law Faculty Publications & Other Works
Climate change presents serious challenges to the agencies that manage the federal public lands. These changes require new management strategies that may be difficult to design and implement because of internal agency resistance to altering traditional ways of doing business. In addition, there is likely to be a lack of fit between some of the laws from which the agencies derive their management authority and the problems posed by climate change, which differ from those Congress envisioned when it adopted those laws and which undermine some of the key assumptions underpinning those laws. This chapter describes the manner in which …
Outpost Years For A Start-Up Agency: The Ftc From 1921-1925, William E. Kovacic, Marc Winerman
Outpost Years For A Start-Up Agency: The Ftc From 1921-1925, William E. Kovacic, Marc Winerman
GW Law Faculty Publications & Other Works
The challenges and questions surrounding the design of a competition system are part of an identifiable life cycle that characterizes the development of a competition agency. The core challenges are to set priorities and execute them, but there are various potential obstacles. This article looks at the FTC’s experiences in its first decade, a period bringing extraordinary technological dynamism that reshaped the U.S. economy and transitions in political leadership, to shed light on how a new or reformed agency might go about facing predictable problems in its first years and to suggest how these agencies can improve their effectiveness.
New …
Reasonableness With Teeth: The Future Of Fourth Amendment Reasonableness Analysis, Cynthia Lee
Reasonableness With Teeth: The Future Of Fourth Amendment Reasonableness Analysis, Cynthia Lee
GW Law Faculty Publications & Other Works
This essay assesses the past, the present, and the future of Fourth Amendment reasonableness analysis. Part I focuses on the past. For much of the twentieth century, the Court embraced what is called the warrant preference view of the Fourth Amendment under which a search was considered reasonable if the government obtained a search warrant prior to the search or an exception to the warrant requirement applied. Part II focuses on the present. Even though it still treats as reasonable both searches conducted pursuant to a warrant and searches that fall within a well established exception to the warrant requirement, …
The Rise Of Institutional Law Practice, Thomas D. Morgan
The Rise Of Institutional Law Practice, Thomas D. Morgan
GW Law Faculty Publications & Other Works
For generations, the legal profession has assumed that only individual lawyers practice law. Ethical standards have been largely, if not exclusively, directed at individuals, and practice organizations have been regulated to prevent limiting individual lawyer professional judgment. The world in which lawyers now practice makes the individualized model obsolete. The complexity of modern law narrows the breadth of any individual lawyer's practice and makes law firms and other practice organizations inevitable. Firms, in turn, must maintain both ethical compliance and a high level of service quality that is inconsistent with lawyers behaving idiosyncratically. The article explores these developments and suggests …
The Restatement's Supersized Duty Of Loyalty Provision, Michael Selmi
The Restatement's Supersized Duty Of Loyalty Provision, Michael Selmi
GW Law Faculty Publications & Other Works
This essay analyzes and critiques the Restatement of Employment Law’s provision on the duty of loyalty. Cases invoking the duty of loyalty have generally been successful only in the limited circumstance when an employee leaves her current employment to start a competing business. The Restatement, however, reconceptualizes the duty of loyalty claim into a catch all provision that could be used to restrain employees from moving to competitors, even in the absence of a noncompete agreement, and to protect trade secrets or confidential information. The expansion of the duty of loyalty cause of action is unsupported by either the existing …
International Trade And Investment Law And Carbon Management Technologies, Steve Charnovitz
International Trade And Investment Law And Carbon Management Technologies, Steve Charnovitz
GW Law Faculty Publications & Other Works
Reducing emissions of greenhouse gases will require the development of carbon management technologies that are not currently available or that are not currently cost-effective. While market mechanisms such as carbon pricing must play a central role in stimulating the development of these technologies, governmental policy aimed at fostering carbon management technologies and lowering their costs must also play a part. Both types of policies will form part of an optimal greenhouse gas control portfolio. This article develops a framework of international trade and investment law insofar as they may affect carbon management technologies. While it is commonly perceived that international …
Kiobel, Subject Matter Jurisdiction, And The Alien Tort Statute, Bradford R. Clark
Kiobel, Subject Matter Jurisdiction, And The Alien Tort Statute, Bradford R. Clark
GW Law Faculty Publications & Other Works
The Supreme Court is currently reviewing the Second Circuit’s decision in Kiobel v. Royal Dutch Petroleum, a case holding that federal courts lack jurisdiction under the Alien Tort Statute (“ATS”) over claims against corporations. Although the parties have focused on issues of corporate liability under the ATS, there is a logically antecedent question of subject matter jurisdiction that the Court should decide before considering corporate liability. All of the parties in Kiobel — whether corporate or individual — are aliens. Understood in its full legal and historical context, the ATS was a jurisdictional statute that did not apply to suits …
Toward A Unified Grading Vocabulary: Using Grading Rubrics To Set Student Expectations And Promote Consistency In Legal Writing Courses, Jessica L. Clark, Christy Hallam Desanctis
Toward A Unified Grading Vocabulary: Using Grading Rubrics To Set Student Expectations And Promote Consistency In Legal Writing Courses, Jessica L. Clark, Christy Hallam Desanctis
GW Law Faculty Publications & Other Works
Faced with the American Bar Association's proposed changes to law school accreditation standards, especially related to student assessment and outcome measurement, law schools are responding by developing and incorporating assessment standards. Likely related to these proposed changes, there has been an undeniable recent trend in law school assessment scholarship, which is one way to measure law schools' reactions to the call for change. This article contributes to that trend by offering an introduction to a methodology of assessing legal writing - through the use of detailed grading guidelines called rubrics. Our experience over the past several years of using rubrics …
The Benefits To Be Derived From Post-Negotiation Assessments, Charles B. Craver
The Benefits To Be Derived From Post-Negotiation Assessments, Charles B. Craver
GW Law Faculty Publications & Other Works
Lawyers negotiate regularly, but few ever take the time when they have completed such critical interactions to ask themselves how they did. If they hope to improve their bargaining capabilities, they should take a few minutes after their more significant interactions to ask themselves some basic questions. Were they thoroughly prepared, and did they establish elevated but realistic aspirations? How did the negotiation stages develop? What bargaining techniques did they employ, and how did they counteract the tactics used by the other side? What did they do that they wished they had not done? What did they not do that …