Law Commons^™

The Aig Story (Chapter 18, Nationalization), Lawrence A. Cunningham, Maurice R. Greenberg

GW Law Faculty Publications & Other Works

This is the final chapter of The AIG Story, a book about the growth of a large international insurance company that pioneered the opening of new markets and helped forge milestone international trade agreements, followed by an account of its near-destruction, first at the hands of an overzealous state attorney general and underwhelming board of directors, and then, as detailed in this chapter, at the hands of federal government officials overwhelmed by a financial crisis they could not understand. This chapter begins in mid-2008, when AIG’s losing financial products bets presented the company with a huge liquidity problem, though it …

The Use Of Alternative Dispute Resolution Techniques To Resolve Public Sector Bargaining Disputes, Charles B. Craver

GW Law Faculty Publications & Other Works

Labor organizations and employers have used various dispute resolution techniques to assist them with contract negotiations and contractual grievances. They have used negotiation, mediation, and arbitration since the 1800s. When the ADR movement was developed for conventional legal disputes, many of the techniques adopted were derived from the industrial relations movement. As states enacted public sector bargaining laws granting representational rights to state and local government employees, the parties had to determine how to resolve controversies over the terms to be included in new contracts and over grievances arising under existing accords. Most states refused to allow government personnel to …

International Judicial Bodies For Resolving Disputes Between States, Sean D. Murphy

GW Law Faculty Publications & Other Works

This chapter of the forthcoming Oxford Handbook on International Adjudication assesses those international judicial bodies that are established principally to resolve disputes between States, notably the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS) and the World Trade Organization (WTO) Appellate Body. Unlike courts oriented toward regional economic integration or regional human rights, such as the European Court of Justice or the Inter-American Court of Human Rights, these courts and tribunals primarily focus on resolving disputes between States. Contentious cases before these bodies, for the most part, do not involve institutional organs or …

Who Should Determine Whether An Agency’S Explanation Of A Tax Rule Is Adequate?, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

This essay is Professor Pierce’s contribution to the annual Duke Law Journal symposium on administrative law. The topic of this year’s symposium is “Taking Administrative Law to Tax.” The other participants in the symposium make three main points: (1) IRS and Treasury have long engaged in practices that are inconsistent with the APA, specifically including issuance of legislative rules without complying with the notice and comment procedure described in APA section 553; (2) courts should require IRS and Treasury to comply with the APA; and, (3) several opinions issued by the Supreme Court in recent years suggest that courts are …

Citigroup: A Case Study In Managerial And Regulatory Failures, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

Citigroup has served as the poster child for the elusive promises and manifold pitfalls of universal banking. When Citicorp merged with Travelers to form Citigroup in 1998, Citigroup’s leaders and supporters asserted that the new financial conglomerate would offer unparalleled convenience to its customers through “one-stop shopping” for banking, securities and insurance services. They also claimed that Citigroup would have a superior ability to withstand financial shocks due to its broadly diversified activities.

During its early years, Citigroup was embroiled in a series of high-profile scandals, including tainted transactions with Enron and WorldCom, biased research advice, corrupt allocations of shares …

Emotional Intelligence And Negotiation Performance, Charles B. Craver

GW Law Faculty Publications & Other Works

When individuals negotiate, they employ many personal and intellectual skills. Over the many years I have taught Negotiation courses, I have sought to determine the factors that influence bargaining outcomes. I have found no statistically significant differences based upon the gender or race of the participants, and no correlation with student GPAs. Since Daniel Goleman suggests that if something is not due to IQ it must be based upon EQ, or emotional intelligence, I decided to determine whether there is any correlation between my student perofmance on negotiation exercises and their individual emotional intelligence scores. I had the exceptional assistance …

Screening Legal Claims Based On Third-Party Litigation Finance Agreements And Other Signals Of Quality, Michael B. Abramowicz, Omer Alper

GW Law Faculty Publications & Other Works

The advent of third-party litigation finance introduces a new gatekeeper to the legal process. Before deciding to lend money to a plaintiff, a litigation finance company will conduct at least some review and make an assessment of the quality of the case.

Since litigation finance loans are generally nonrecourse, a litigation finance company is likely to refuse to loan money to plaintiffs with the weakest cases. Such voluntary claim screening may improve social welfare by reducing the incidence of frivolous claims. But the volume of frivolous claims may still be higher than it would be in a world without third-party …

Feature Comment: Considering The Effects Of Public Procurement Regulations On Competitive Markets, Christopher R. Yukins, Jose A. Cora

GW Law Faculty Publications & Other Works

Professor Albert Sanchez Graells of the University of Hull (UK) recently published a vitally important book on procurement law, Public Procurement and the EU Competition Rules (Hart Publishing 2011). In his study, Sanchez Graells asked what seems like a simple question: Shouldn’t regulators, when writing procurement regulations, consider the likely impact of those regulations on competitive markets? Sanchez Graells pointed out that far too little attention has been paid to the anticompetitive impact of public procurement regulation. This article assesses Sanchez Graells’ thesis from a U.S. perspective. In many ways the U.S. federal procurement system stands at one end of …

The Jus Ad Bellum And The 1998 Initiation Of The Eritrean-Ethopian War, Sean D. Murphy, Won Kidane, Thomas R. Snider

GW Law Faculty Publications & Other Works

From May 1998 to December 2000, Eritrea and Ethiopia engaged in an armed conflict that cost the lives of thousands of individuals, injured thousands more, and displaced tens of thousands of men, women, and children from their homes. In December 2000, the two sides concluded a comprehensive agreement that ended the war. Among other things, the agreement established the Eritrea-Ethiopia Claims Commission. Consisting of five arbitrators, the Commission’s mandate was to “decide through binding arbitration all claims for loss, damage or injury by one Government against the other” that were “related to the conflict” and that “resulted from violations of …

Making Race Salient: Trayvon Martin And Implicit Bias In A Not Yet Post-Racial Society, Cynthia Lee

GW Law Faculty Publications & Other Works

This Article uses the Trayvon Martin shooting to examine the operation of implicit racial bias in cases involving self-­defense claims. Judges and juries are often unaware that implicit racial bias can influence their perceptions of threat, danger, and suspicion in cases involving minority defendants and victims. Failure to recognize the effects of implicit racial bias is especially problematic in cases involving black male victims and claims of self-defense because such bias can make the defendant’s fear of the victim and his decision to use deadly force seem reasonable. The effects of implicit racial bias are particularly likely to operate under …

The Role Of Economics In Tax Scholarship, Neil H. Buchanan

GW Law Faculty Publications & Other Works

One of the fundamental tenets of modern tax policy analysis is that we should be concerned with so-called economic efficiency. Along with equity and administrability, efficiency is widely held to be a desirable and important goal. Indeed, to some analysts, efficiency is the most important of those goals, and perhaps the only appropriate goal of tax policy. Even for those who still take seriously non-efficiency concerns, however, efficiency is at least a central element of tax policy analysis, to be weighed against the other two goals (and, perhaps, some others). All tax policy proposals are thus scrutinized to determine whether …

The Rise Of Directed Verdict: Jury Power In Civil Cases Before The Federal Rules Of 1938, Renée Lettow Lerner

GW Law Faculty Publications & Other Works

Jury practice in the state and federal courts evolved dramatically in the nineteenth and early twentieth century. Around the time of the ratification of the Bill of Rights in 1791, important legal thinkers praised the civil jury as a bulwark against judicial tyranny. By the advent of the Federal Rules of Civil Procedure in 1938, many commentators regarded the civil jury as an antiquated nuisance. Diminishment of the jury and open exercise of judicial power, encouraged in the Federal Rules by procedures such as summary judgment, would not have been possible without earlier changes in jury practice. Two major changes …

Incentive Effects From Different Approaches To Holdup Mitigation Surrounding Patent Remedies And Standard-Setting Organizations, F. Scott Kieff, Anne Layne-Farrar

GW Law Faculty Publications & Other Works

Debates about patent policy often focus on the potential for the threat of a court-imposed remedy for patent infringement to cause manufacturing entities and others to suffer patent holdup, especially when standardized industries are involved. This article uses lessons from the broader economics and political science literatures on holdup to explore various approaches to setting remedies for patent infringement—namely injunctions and money damages in the form of lost profits or reasonable royalties—with an eye towards the nature and extent of various forms of holdup they each might generate. In so doing, the article contrasts various narrower sub-categories of the broad …

Rethinking The Legal Foundations Of The European Constitutional Order: The Lessons Of The New Historical Research, Francesca Bignami

GW Law Faculty Publications & Other Works

This essay examines the implications of new historical research on the origins of EU law for legal theory. Based on a review of the recent work of Morten Rasmussen, Bill Davies, Anne Boerger-de Smedt, Karin van Leeuwen, and Alexandre Bernier, the essay demonstrates how this historical research improves our understanding of two important themes in comparative law—comparative legal traditions and legal transplants. By examining the legal actors in different jurisdictions responsible for building an area of public law—the economic law of the fledgling European Communities—the new historical research contributes to the legal traditions literature on legal elites, which has traditionally …

§ 5:33 Waiver Of Privilege — Voluntary Disclosure Or Failure To Claim, Laird Kirkpatrick, Christopher B. Mueller

GW Law Faculty Publications & Other Works

Evidence subject to the attorney-client privilege is protected against compelled discovery or disclosure. However, the privilege can be waived if the client who holds the privilege (or the attorney acting on his behalf) fails to claim the privilege or voluntarily discloses the subject matter of the privileged communication. This Section discusses the law governing privilege waiver by voluntary disclosure or failure to claim the privilege.

§ 5:10 Potential Constitutional Limitations On Claims Of Privilege — The Constitutional Right To Produce Evidence, Laird Kirkpatrick, Christopher B. Mueller

GW Law Faculty Publications & Other Works

Generally under the law a litigant is entitled to every person's evidence in order to pursue a claim or defense. A primary exception to this rule is where the evidence is privileged and hence protected from compelled disclosure. However, even privileged evidence can be compelled to be disclosed in some circumstances, such as where it is critical exculpatory evidence needed by a criminal defendant. This Section discusses the conflict between the law of privilege and a criminal defendant's constitutional right to produce evidence in his defense.

Book Review: Legal Pluralism And Empires, Paul Schiff Berman

GW Law Faculty Publications & Other Works

These are boom times for scholarship on legal pluralism. With the collapse of the bipolar Cold War order and the increasing recognition of transnational and international institutions and networks that operate distinct from nation-states, observers have used legal pluralism as a useful framework for conceptualizing a world of multiple overlapping assertions of authority. This framework challenges traditional international relations and international law scholarship that has long tended to focus almost exclusively on nation-states, their jurisdictional boundaries, and their interests, goals, and strategies. Legal pluralists insist that an assertion of jurisdiction is only one gambit in an ongoing interplay of social …

Competition Agencies With Complex Policy Portfolios: Divide Or Conquer?, William E. Kovacic, David A. Hyman

GW Law Faculty Publications & Other Works

Antitrust law has been adopted by 120 jurisdictions worldwide. In more than half of these jurisdictions, the agency charged with enforcing antitrust law also has other responsibilities. The assignment of multiple regulatory tasks can affect the performance of a competition agency in complex and subtle ways. We present a framework for analyzing the consequences of creating public bodies with complex policy portfolios. Using examples from across the administrative state, we analyze the forces that shape the content of an agency’s policy duties, and how the portfolio of assigned duties affects the way an agency approaches its assigned tasks, and its …

Justice Kennedy’S Use Of Sources Of The Original Meaning Of The Constitution, Gregory E. Maggs

GW Law Faculty Publications & Other Works

The essay concerns one aspect of Justice Kennedy’s jurisprudence, namely, his use of some of the principal sources of the original meaning of the Constitution in his written opinions. By the term “sources of the original meaning of the Constitution,” I refer to the records from the Federal Constitutional Convention of 1787, the records of the state ratifying conventions, the Federalist Papers, dictionaries showing usage of language during the Founding period, and the acts of the First Congress. The goals of this essay are first to identify, quote, and describe passages in which Justice Kennedy has cited these sources, and …

Jus Ad Bellum, Values, And The Contemporary Structure Of International Law, Sean D. Murphy

GW Law Faculty Publications & Other Works

In “Religion, Violence, and Human Rights: Protection of Human Rights as Justification for the Use of Armed Force,” 41 Journal of Religious Ethics 1 (2013), James Johnson discusses an important dilemma for contemporary society: when should transnational military force be permitted to protect human rights? Professor Johnson uses the relatively recent doctrine of a “responsibility to protect” as the centerpiece of his paper, characterizing it as a reaction to legal concepts that emerged in the “Westphalian system.” Yet the doctrine, at least as it relates to the use of military force, is not a reaction to that system but, rather, …

Bid Protests: The Costs Are Real, But The Benefits Outweigh Them, Daniel I. Gordon

GW Law Faculty Publications & Other Works

The author analyzes the costs and benefits of bid protests, with a focus on protests filed at the Government Accountability Office (GAO). The author explains that the costs are often overstated, in that GAO’s reporting methodology leads observers to overstate the number of protests and the frequency of successful protests. The author also reports on research regarding what happens after GAO sustains protests, and indicates that firms that successfully protest to GAO generally do not obtain the contract that was the subject of the protest. The article also explains that the “automatic stay” of procurements triggered by a protest to …

Deferred Prosecutions And Corporate Governance: An Integrated Approach To Investigation And Reform, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

When evaluating how to proceed against a corporate investigative target, law enforcement authorities often ignore the target’s governance arrangements, while subsequently negotiating or imposing governance requirements, especially in deferred prosecution agreements. Ignoring governance structures and processes amid investigation can be hazardous and implementing improvised reforms afterwards may have severe unintended consequences—particularly when prescribing standardized governance devices. Drawing, in part, on new lessons from three prominent cases—Arthur Andersen, AIG and Bristol-Myers Squibb—this Article criticizes prevailing discord and urges prosecutors to contemplate corporate governance at the outset and to articulate rationales for prescribed changes. Integrating the role of corporate governance into prosecutions …

Letting Nature Work In The Pacific Northwest: A Manual For Protecting Ecosystem Services Under Existing Law, Robert L. Glicksman, Robert W. Adler, Daniel J. Rohlf, Robert R.M Verchick, Yee Huang

GW Law Faculty Publications & Other Works

In the decades since Congress and state legislatures passed most of the nation's most significant environmental laws, our knowledge about ecosystems has increased dramatically. As ecologists learn more about the complex and dynamic interactions that produce valuable ecosystem services, decisionmakers and advocates should adopt an ecosystem services approach to implementing laws that affect the environment. An ecosystem services approach integrates advances in ecology with the law. It fosters creative thinking about how to restructure laws and regulatory programs to mimic the connectedness of ecosystem functions. The approach requires performance-based evaluations to measure success or failure of management decisions, and it …

Cross-Debarment: A Stakeholder Analysis, Christopher R. Yukins

GW Law Faculty Publications & Other Works

As more nations and organizations establish debarment (or "blacklisting") systems, to exclude corrupt or incompetent firms and individuals from contracting, a serious question has arisen: if a contractor is debarred, should other jurisdictions automatically exclude that contractor in a "cross-debarment"? This paper, which grew out of an October 2012 symposium at the World Bank, discusses the advantages and disadvantages of cross-debarment, from the standpoint of various stakeholders. The article concludes that some stakeholders (such as debarring officials themselves) might prefer that there be no automatic cross-debarment, so that government officials retain discretion -- and so leverage -- to persuade contractors …

Jurisgenerative Constitutionalism: Procedural Principles For Managing Global Legal Pluralism, Paul Schiff Berman

GW Law Faculty Publications & Other Works

Global Legal Pluralism recognizes the inevitability (and sometimes even the desirability) of multiple legal and quasi-legal systems purporting to regulate the same act or actor. However, the resulting pluralism—just as inevitably—creates conflicts among norms that are potentially intractable. Thus, legal systems must address how best to respond to the realities of pluralism. This inquiry has constitutional dimensions because it goes to the constitutive character of communities and their relationships with other communities, be they international, transnational, national, subnational, or epistemic.

One response to pluralism is jurispathic: “kill off” all competing laws by declaring that one set of norms—and only one—shall …

Introduction, June Carbone, Naomi R. Cahn

GW Law Faculty Publications & Other Works

This is an introduction to a symposium issue that brings together two different sets of paper. The first set of papers were written in honor of Catharine A. MacKinnon, “Legal Feminism: Looking Back, Looking Forward.;” The second set of papers are drawn from a conference on “The Family-Inequality Debate: A Workshop on Coercion, Class, and Paternal Participation."

Reflections On The Icj Advisory Opinion On Kosovo: Interpreting Security Council Resolution 1244 (1999), Sean D. Murphy

GW Law Faculty Publications & Other Works

In its 2010 advisory opinion on Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, the International Court of Justice was called upon to interpret the meaning and legal effects of Security Council Resolution 1244, which had authorized the deployment of international military forces and civilian administration into Kosovo in the aftermath of NATO’s 1999 bombing campaign against Serbia. The Court’s treatment of Resolution 1244 entailed a rich mosaic of issues, some of which were specific to the situation of Kosovo, but others that have ramifications for the interpretation and application of Security Council …

§ 5:35 Fed. R. Evid. 502--Limitations On Waiver Of Privilege And Work Product Immunity, 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 5:35 discusses this new provision. Under "Attorney-Client Privilege and Work Product; …

General Law In Federal Court, Bradford R. Clark, Anthony J. Bellia Jr.

GW Law Faculty Publications & Other Works

Conventional wisdom maintains that the Supreme Court banished general law from federal courts in 1938 in Erie Railroad Co. v. Tompkins when the Court overruled Swift v. Tyson. The narrative asserts that Swift viewed the common law as a “brooding omnipresence,” and authorized federal courts to disregard state common law in favor of general common law of their own choosing. The narrative continues that Erie constrained such judicial lawmaking by banishing general law from federal courts. Contrary to this account, Swift and Erie represent compatible conceptions of federal judicial power when each decision is understood in historical context. At the …

The Appropriate Role Of Costs In Environmental Regulation, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

In Whitman v. American Trucking Association, 121 S. Ct. 903 (2001), the Court held that EPA cannot consider costs in any way in setting air quality standards. The Court's opinion raises many more questions than it answers. This article discusses three of those questions: (1) which of three competing canons of constructions should courts use when they interpret ambiguous provisions in regulatory statutes; (2) how can an agency make and defend its line-drawing decisions when it is prohibited from considering costs in any way: and, (3) how can courts review an agency's decisions when the agency is prohibited from considering …