Law Commons^™

Book Review: Outsourcing Sovereignty: Why Privatization Threatens Democracy, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

This is a review of Paul Verkuil's new book: Outsourcing Sovereignty: Why Privatization Threatens Democracy and What we Can Do About It. The book consists of a wide-ranging and well-documented critique of what Verkuil views as excessive reliance on private contractors to perform a variety of inherently governmental tasks, with particular emphasis on military and other national security functions. Verkuil discusses in detail numerous ways in which the U.S. might reduce the scope and severity of the severe problems that excessive reliance on poorly-supervised contractors is now having.

Pierce praises Verkuil's description and documentation of the problem he addresses in …

Children And Religious Expression In School: A Comparative Treatment Of The Veil And Other Religious Symbols In Western Democracies, Catherine J. Ross

GW Law Faculty Publications & Other Works

Whether and how to accommodate students' personal religious symbols worn in public schools are part of a mounting global debate. The competing claims of the body politic and the religious or cultural identity of minority groups came to a head in what the French called the "affair of the veil." This chapter examines the problem of the veil from a cross-cultural perspective, comparing the United States to several other western democracies. The comparison involves both legal and cultural premises. In each instance, the analysis must consider the fundamental values of the body politic, the laws and covenants that govern decision-making, …

Picking The Correct Argument, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

This article on trial tactics suggests that probably no rule of thumb is more important to a trial lawyer than this: You need only one good theory of admissibility or objection to win a point, and in many instances the key is to pick the winner and avoid the losers. The rule is easy to state and widely acknowledged. It is more difficult, however, to apply than to acknowledge. A related rule is that a lawyer who has a powerful, potentially winning argument, may ultimately lose if that argument is lost in a flurry of less persuasive arguments.

Where Is Criminal Justice In This Presidential Year?, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

This article notes that throughout the presidential campaigns there has been little emphasis on criminal justice and few serious proposals by candidates for changing or improving the way in which the federal government enforces criminal law. There has been little discussion about the respective roles that the federal government and the states should play in law enforcement. The author calls for the next president to convene an inclusive national congress on criminal justice. He encourages the president to bring together prosecutors, defense counsel, judges, legislators, law enforcement, correctional officials, probation and parole officers, academics, victims advocacy groups, other public interest …

The Importance Of An Independent Bar, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

This paper, presented at International Bar Association's 10th Transnational Crime Conference in Washington, D.C., on June 9, 2007 begins from the premise that, as the world becomes more complex and therefore more dangerous, governments seek to limit individual rights in the name of crime control and/or national security. The paper cautions that we must always keep in mind that individual rights once lost are not easily regained. Accordingly, the unique and important role of an independent bar in protecting and defending liberty is more, not less, important than ever before. Thus, the efforts of the lawyers, military and civilian, to …

The Work-Family Conflict: An Essay On Employers, Men And Responsibility, Michael Selmi

GW Law Faculty Publications & Other Works

This paper, prepared for a symposium held at the University of St. Thomas Law School, explores an issue that has been largely neglected in the work-family debate, namely why the burden should be on employers to change their practices rather than on men to change theirs. Many of the policy proposals designed to facilitate the balancing of work and family demands require employers to alter their practices by creating part-time work, providing paid leave, or devising ways to limit the penalties women face for taking extended leave. At the same time, the reluctance of men to change their behavior, which …

Interpreting The Americans With Disabilities Act: A Case Study In Pragmatic Judicial Reconstruction, Michael Selmi

GW Law Faculty Publications & Other Works

This article challenges the prevailing academic consensus regarding the Supreme Court's interpretation of the Americans With Disabilities Act ("ADA"). In a series of cases over the last decade, the Supreme Court has sharply limited the scope of the statute by narrowly defining what constitutes a disability, and most commentators have attributed the cases to a judicial backlash or a lack of empathy for the disabled. This article offers a counter narrative. Although the Supreme Court's interpretations have plainly narrowed the scope of the statute, and without regard to congressional intent, I suggest that the decisions are largely consistent with congressional …

Understanding Privacy (Chapter One), Daniel J. Solove

GW Law Faculty Publications & Other Works

Privacy is one of the most important concepts of our time, yet it is also one of the most elusive. As rapidly changing technology makes information increasingly available, scholars, activists, and policymakers have struggled to define privacy, with many conceding that the task is virtually impossible.

In UNDERSTANDING PRIVACY (Harvard University Press, May 2008), Professor Daniel J. Solove offers a comprehensive overview of the difficulties involved in discussions of privacy and ultimately provides a provocative resolution. He argues that no single definition can be workable, but rather that there are multiple forms of privacy, related to one another by family …

The New Vulnerability: Data Security And Personal Information, Daniel J. Solove

GW Law Faculty Publications & Other Works

This book chapter was originally written for a conference on privacy and security at Stanford Law School held in March 2004. The chapter argues that abuses of personal information are caused by the failure to regulate the way companies manage personal information. Despite taking elaborate technological measures to protect their data systems, companies readily disseminate the personal information they have collected to a host of other entities and sometimes even to anyone willing to pay a small fee. Companies provide access to their record systems over the phone to anybody in possession of a few easy-to-find pieces of personal information …

Patent Law In A Nutshell, Martin J. Adelman, Randall R. Rader, Gordon P. Klancnik

GW Law Faculty Publications & Other Works

This book provides a concise description of the fundamentals of U.S. patent law. The book is organized in sixteen chapters, covering topics such as the foundations of patent law, patent acquisition, anticipation, patent eligibility, patent claims, construction, and remedies. The book discusses the key statutes, rules, and cases that have shaped present-day patent law doctrine.

Public Safety And The Right To Bear Arms, Robert J. Cottrol, Raymond T. Diamond

GW Law Faculty Publications & Other Works

On Tuesday November 20th, 2007 the United States Supreme Court granted certiorari in a case involving the District of Columbia's ban on handguns. The statute had been successfully challenged in the United States Court of Appeals for the District of Columbia Circuit on the grounds that it violated the Second Amendment's guarantee of "the right of the people to keep and bear arms." With its decision to grant certiorari, the Supreme Court entered a constitutional controversy from which it had been largely absent for nearly seventy years, the meaning and scope of the Second Amendment. That controversy, the debate over …

Worker Participation And Social Dialogue At The Work Place Level In The United States, Charles B. Craver

GW Law Faculty Publications & Other Works

This paper discusses the right of private sector employees to influence management decisions that may affect their working conditions. It explores the ability of workers represented by labor organizations to deal with their employers through the collective bargaining process, and through contractual grievance-arbitration procedures with respect to issues arising under current agreements. It notes the decline of unions over the past fifty years, with union membership declining from 35% in the late 1950s to under 7% today. In the absence of formal union representation, employees have no formal right to affect management decisions, even though over 85% of surveyed employees …

The Sec's Global Accounting Vision: A Realistic Appraisal Of A Quixotic Quest, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

In the most revolutionary securities law development since the New Deal, the SEC is poised to jettison rules requiring companies to apply recognized US accounting standards by inviting use of a new set of international ones created by a private London-based organization. This radical shift follows decades of gradual movement towards international standards that has gained momentum since 2005 when all listed companies in the European Union were required to use them. For the US, the SEC could give companies the option to use either or establish a medium-term plan to move US companies to international standards within a decade. …

Grand Jury Discretion And Constitutional Design, Roger A. Fairfax Jr.

GW Law Faculty Publications & Other Works

The grand jury possesses an unqualified power to decline to indict - despite probable cause that alleged criminal conduct has occurred. A grand jury might exercise this power, for example, to disagree with the wisdom of a criminal law or its application to a particular defendant. A grand jury might also use its discretionary power to send a message of disapproval regarding biased or unwise prosecutorial decisions or inefficient allocation of law enforcement resources in the community. This ability to exercise discretion on bases beyond the sufficiency of the evidence has been characterized pejoratively as grand jury nullification. The dominant …

Harmless Constitutional Error And The Institutional Significance Of The Jury, Roger A. Fairfax Jr.

GW Law Faculty Publications & Other Works

Appellate harmless error review, an early twentieth-century innovation prompted by concerns of efficiency and finality, had been confined to non-constitutional trial errors until forty years ago, when the Supreme Court extended the harmless error rule to trial errors of constitutional proportion. Even as criminal procedural protections were expanded in the latter half of the twentieth century, the harmless error rule operated to dilute the effect of many of these constitutional guarantees - the right to jury trial being no exception. However, while a tradeoff between important process values and the Constitution's protection of individual rights is inherent in the harmless …

Putting Missouri V. Holland On The Map, Edward T. Swaine

GW Law Faculty Publications & Other Works

This paper, published as part of symposium on Missouri v. Holland, explores how the circumstances of that case relate to modern criticisms of Congress' Necessary and Proper power and the doctrine of non-self-executing treaties. Focusing on some of the original concerns - for example, the need for further domestic implementation by Canada (and not, to the same degree, by the United States), the need for spending legislation, and the provision of criminal penalties - unsettles not only the understanding of the Supreme Court's decision, but also more recent critiques of the doctrines with which it has long been associated.

Taking Care Of Treaties, Edward T. Swaine

GW Law Faculty Publications & Other Works

There is little consensus about the scope of the President's powers to cure breaches of U.S. treaty obligations, let alone the influence of decisions by international tribunals finding the United States in breach. Such decisions do not appear to be directly effective under U.S. law. Treaties and statutes address questions of domestic authority sporadically and incompletely, and are suited to the task only if construed heroically; the President's general constitutional authority relating to foreign affairs is sometimes invoked, but its extent is uncertain and turns all too little on the underlying law at issue. Relying on either theory to cope …

Foreign Corrupt Practices Act Fundamentals, Jessica Tillipman

GW Law Faculty Publications & Other Works

Foreign Corrupt Practices Act (FCPA) enforcement activity is currently at its highest level since enactment of the statute in 1977. There were more enforcement actions brought in 2007 than in the years from 2004 to 2006 combined. The message is clear - the U.S. Government is committed to FCPA compliance and there is no evidence enforcement activity will slow any time soon. This article provides a general overview of the FCPA, including a primer on the legislation’s core components: the antibribery prohibitions and the books and records provisions. The article also provides practical guidance with respect to the more challenging …

The Role Of Non-Legal Institutions In Chinese Corporate Governance, Donald C. Clarke

GW Law Faculty Publications & Other Works

No abstract provided.

Emerging Policy And Practice Issues (2007), Steven L. Schooner, Danielle M. Conway

GW Law Faculty Publications & Other Works

This paper, presented at the West Government Contracts Year in Review Conference (covering 2007), attempts to identify the key trends and issues for 2008 in U.S. federal procurement. We bemoan the absence of attention to significant issues by the current Presidential candidates, critique the leadership vacuum that sustains the longstanding and increasingly critical acquisition workforce shortage, and discuss the potentially active legislative agenda in light of the now-Final Report of the Acquisition Advisory Panel (AAP), a blue-ribbon commission mandated by Section 1423 of the Services Acquisition Reform Act (SARA). We also discuss the dramatic post-2000 trend in increased federal procurement …

Federalism And International Law Through The Lens Of Legal Pluralism, Paul Schiff Berman

GW Law Faculty Publications & Other Works

Sovereignty has long been the dominant lens through which we view both federalism and international law. From the perspective of sovereignty, both federalism and international law are primarily about drawing clear boundaries and demarcations between separate, autonomous power centers. Recently, however, a group of scholars have embraced a more pluralist approach to both American federalism and international law. They have touted the important virtues of jurisdictional redundancy and inter-systemic governance models in which multiple legal and regulatory authorities weigh in regarding the same acts and actors. And they argue that such jurisdictional redundancies are not just a necessary accommodation to …

Climate Change "Crisis" - Struggling For Worldwide Collective Action, Lisa M. Schenck

GW Law Faculty Publications & Other Works

Global climate change due to increased levels of atmospheric greenhouse gases caused by human activity has the potential to threaten life on earth. International cooperation is required to effectively address this threat; however the climate crisis represents a classic collective action problem in response to overexploitation of a global commons. This article explains the global climate change issue, traces efforts to confront it, and argues that inherent difficulties plague collective responses to global commons problems. It pinpoints individual reasons for collective action failures, examines background economic and scientific problems, and analyzes how group factors such as strategy and coalition building …

Making The Corporation Safe For Shareholder Democracy, Lisa M. Fairfax

GW Law Faculty Publications & Other Works

This article considers the effect that increased shareholder activism may have on non-shareholder corporate stakeholders such as employees and consumers. One of the most outspoken proponents of increased shareholder power has argued that such increased power could have negative repercussions for other corporate stakeholders because it would force directors to focus on profits without regard to other interests. This article critically examines that argument. The article acknowledges that increased shareholder power may benefit some stakeholders more than others, and may have some negative consequences. However, this article demonstrates that shareholders not only have interests that align with other stakeholders, but …

Public Procurement Systems: Unpacking Stakeholder Aspirations And Expectations, Steven L. Schooner, Daniel I. Gordon, Jessica L. Clark

GW Law Faculty Publications & Other Works

Around the world, governments are increasingly becoming focused on improving their public procurement regimes. Significant developments include the establishment of internationally shared norms for public procurement systems, while, at the national level, a number of countries have adopted dramatically new public procurement regimes, and others are experimenting with new procurement vehicles, such as framework agreements and electronic reverse auctions, and new procurement schemes, including public-private partnerships. As each of these changes is contemplated, planned, implemented, and then assessed, government leaders and policy makers need a framework of analysis for decision making - a framework based on public procurement goals and …

Too Dependent On Contractors? Minimum Standards For Responsible Governance, Steven L. Schooner, Daniel S. Greenspahn

GW Law Faculty Publications & Other Works

While acknowledging that there are many benefits, challenges, and risks involved in outsourcing, this article asserts that failed implementation, rather than outsourcing policy, explains the government's current (mis)management of its contractors. This article explores the minimum standards for responsible governance following more than 15 years of ill-conceived and inadequate investment in the federal government's acquisition workforce, followed by a governmentwide failure to respond to a dramatic increase in procurement activity. These trends have led to a buying and contract management regime animated by triage, with insufficient resources available for contract administration, management, and oversight. The old adage "an ounce of …

Textualism And Jurisdiction, Peter J. Smith

GW Law Faculty Publications & Other Works

Recent legislation has reinvigorated the scholarly debate over the proper relationship between Congress and the federal courts in matters of federal-court jurisdiction. The traditional view of jurisdiction-stripping is that Congress has virtually plenary power to determine the jurisdiction of the federal courts. Others have argued that there are substantial limits on Congress's authority to deprive the federal courts of jurisdiction over certain matters. A similar debate has raged over the obligation of federal courts to exercise jurisdiction that Congress ostensibly has conferred. Since the debate over Congress's role in crafting a jurisdictional regime last flared in full force, textualism has …

Complex Litigation Lecture: The Adversary System And Modern Class Action Practice, Roger H. Trangsrud

GW Law Faculty Publications & Other Works

In modern class action practice, the class action device can enormously expand the availability of justice but can also cause substantial injustice to defendants and absent class members when improperly used. The latter is often the case because Rule 23 of the Federal Rules of Civil Procedure has come to be interpreted by the federal courts in ways that mask the proper criteria that should be used in deciding whether to certify a class action. Thus, Rule 23 needs a complete overhaul. First, Rule 23 should be amended to allow appeals as of right, not discretion, from orders granting or …

The Justice System And Domestic Violence: Engaging The Case But Divorcing The Victim, Laurie S. Kohn

GW Law Faculty Publications & Other Works

This Article examines the development of an inverse relationship in the legal system between the concern accorded domestic violence cases and the concern accorded domestic violence victims. The Article analyzes both philosophical approaches and concrete mechanisms currently used by the justice system to address domestic violence. Concluding that the current system- though it signals a serious institutional attitude toward addressing domestic violence – has failed to increase victim safety, this Article advocates for a paradigm shift in the legal system’s approach to domestic violence.

Specifically, the Article analyzes the viability of a paradigm shift in the philosophy behind current policies …

The Future Of Nanotechnology Risk Perceptions: An Experimental Investigation Of Two Hypotheses, Donald Braman, Dan M. Kahan, Paul Slovic, John Gastil, Geoffrey L. Cohen

GW Law Faculty Publications & Other Works

This paper reports the results of an experiment designed to test competing conjectures about the evolution of public attitudes toward nanotechnology. The rational enlightenment hypothesis holds that members of the public will become favorably disposed to nanotechnology as balanced and accurate information about it disseminates. The cultural cognition hypothesis, in contrast, holds that members of the public are likely to polarize along cultural lines when exposed to such information. Using a between-subjects design (N = 1,862), the experiment compared the perceptions of subjects exposed to balanced information on the risks and benefits of nanotechnology to the perceptions of subjects exposed …

Who Fears The Hpv Vaccine, Who Doesn't, And Why? An Experimental Study Of The Mechanisms Of Cultural Cognition, Donald Braman, Dan M. Kahan, Geoffrey L. Cohen, Paul Slovic, John Gastil

GW Law Faculty Publications & Other Works

The cultural cognition hypothesis holds that individuals are disposed to form risk perceptions that reflect and reinforce their commitments to contested views of the good society. This paper reports the results of a study that used the controversy over mandatory HPV vaccination to test the cultural cognition hypothesis. Although public health officials have recommended that all girls aged 11 or 12 be vaccinated for HPV - a virus that causes cervical cancer and that is transmitted by sexual contact - political controversy has blocked adoption of mandatory school-enrollment vaccination programs in all but one state. A multi-stage experimental study of …