Law Commons^™

Authentication And Hearsay: Which Trumps?, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

This article addresses the relationship between two federal rules of evidence: Rules 104(a) and 104(b) and which standards a trial judge should apply in admitting hearsay evidence when its authentication is in question. Focusing on United States v. Harvey, 117 F.3d 1044 (7th Circ. 1997) and a simple hypothetical, the article concludes that evidence must be authenticated under Rule 104(b) as well as satisfying the hearsay rule and Rule 104(a).

The Financial Industry's Plan For Resolving Failed Megabanks Will Ensure Future Bailouts For Wall Street, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

The high-risk business model of large financial conglomerates (frequently called “universal banks”) was an important cause of the financial crisis. Universal banks rely on cheap funding from deposits and shadow banking liabilities to finance their speculative activities in the capital markets. By combining deposit-taking and short-term borrowing with underwriting, market making, and trading in securities and derivatives, the universal banking model creates a strong likelihood that serious problems occurring in one sector of the financial industry will spread to other sectors. To prevent such contagion, federal regulators have powerful incentives to bail out universal banks and protect all of their …

Brief Of Amicus Curiae Professor W. Burlette Carter In Support Of Neither Party: Obergefell V. Hodges; Deboer V. Snyder; Tango V. Haslam; Bourke V. Beshear, W. Burlette Carter

GW Law Faculty Publications & Other Works

Comparisons to bans on interracial marriage and bans on same-sex marriage are not neat comparisons. Loving was procreation-related. Before Loving, bans on slaves marrying and nonrecognition of interracial relationships in slavery were all procreation-related. Identifiability is no benefit for blacks but was and is a means for targeting blacks for racial oppression.

Historically, it is indisputable that marriage was heterosexual under the common law. The founders knew about same sex marriages, but considered them not to be legal. When such relationships were respected, they were treated as private contracts between consenting adults. Sometimes, however, even with consent, they were …

An International Legal Framework For Se4all: Human Rights And Sustainable Development Law Imperatives, Robert L. Glicksman

GW Law Faculty Publications & Other Works

Governments around the world recognize the link between human development and access to safe, secure, and affordable sources of energy. Nevertheless, many people have access to only rudimentary and inadequate energy sources, depriving them of opportunities for economic development and creating serious health risks. Even in countries in which access to energy services is adequate, the provision of those services has both health and environmental effects. In particular, the production of energy using fossil fuels generates greenhouse gases that contribute significantly to climate disruption, which is likely to create disproportionate risks to the same undeveloped nations already suffering from a …

The Identification Of Customary International Law And Other Topics: The Sixty-Seventh Session Of The International Law Commission, Sean D. Murphy

GW Law Faculty Publications & Other Works

The International Law Commission held its sixty-seventh session in Geneva from May 4 to June 5, and from July 6 to August 7, 2015, under the chairmanship of Narinder Singh (India). Notably, the Commission’s drafting committee completed a full set of sixteen draft conclusions on the topic of “identification of customary international law,” paving the way for those conclusions with commentaries to be approved by the Commission on first reading in 2016.

Additionally, the Commission provisionally adopted with commentaries initial draft guidelines on “protection of the atmosphere” and initial draft articles on “crimes against humanity,” as well as one further …

Berkshire Versus Kkr: Intermediary Influence And Competition, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

Kathryn Judge of Columbia University documents how financial intermediaries persistently impose high fees compared to the value rendered, attributes this to political influence, and suggests countervailing policy strategies, including stoking competition and enhancing disclosure to reduce excessive transaction costs. In this solicited comment, I concur with Judge's findings and prescriptions by adding a paired example: that of Berkshire Hathaway versus Kohlberg Kravis Roberts. In the field of corporate acquisitions, these rivals are opposites, Berkshire shunning intermediaries and generating virtually no transaction costs while KKR feasts on multiple and lavish fees. The contrast reflects broader differences between Berkshire and private equity …

Johnson’S Differentiation Theory: Is It Really Empirically Supported?, Joan S. Meier

GW Law Faculty Publications & Other Works

Michael Johnson’s differentiation of ‘‘types’’ of domestic violence has had a significant impact on courts and providers, in part because of its claim to an empirical basis. Unfortunately, the label ‘‘situational couple violence’’ has already been used by judges and evaluators to minimize abuse claims in custody cases. Johnson’s repeated assertion that SCV is the most common form of domestic violence reinforces the marginalizing of domestic violence. But what do his data actually show? Here Professor Meier takes a close look at the research Johnson relies on and finds that it fails to prove his thesis. Rather, the data suggest …

Debunking Revisionist Understandings Of Environmental Cooperative Federalism: Collective Action Responses To Air Pollution, Jessica Wentz

GW Law Faculty Publications & Other Works

The federal Clean Air Act initiated Congress's venture into cooperative environmental federalism in 1970. Forty-five years later, misconceptions about the nature of that venture (and similar examples of cooperative federalism under other federal environmental statutes) persist. In particular, some recent judicial decisions characterize environmental cooperative federalism as an equal partnership between the federal Environmental Protection Agency and the states. They also take umbrage at efforts by EPA to override state policies and initiatives that fail to conform to the minimum responsibilities that the statutes impose on the states, characterizing them as unlawful affronts to state sovereignty.

This chapter argues that …

Extent Of Cooperative Enforcement: Effect Of The Regulator-Regulated Facility Relationship On Audit Frequency, Dietrich Earnhart, Robert L. Glicksman

GW Law Faculty Publications & Other Works

A spirited debate explores the comparative merits of two different approaches to the enforcement of environmental law: the noncooperative approach, which emphasizes the deterrence of noncompliance through inflexibly imposed sanctions, and the cooperative approach, which emphasizes the inducement of compliance through flexibility and assistance. Both scholarly and policymaking communities are interested in this topic of enforcement approach within the realms of finance, tax compliance, occupational safety, food and drug safety, consumer product safety, and environmental protection, among others. To inform this debate, our study explores enforcement of environmental protection laws where the debate has been especially spirited yet lacking in …

An Overview Of Privacy Law, Daniel J. Solove, Paul M. Schwartz

GW Law Faculty Publications & Other Works

Chapter 2 of PRIVACY LAW FUNDAMENTALS provides a brief overview of information privacy law – the scope and types of law. The chapter contains an historical timeline of major developments in the law of privacy and data security.

PRIVACY LAW FUNDAMENTALS is a distilled guide to the essential elements of U.S. data privacy law. In an easily-digestible format, the book covers core concepts, key laws, and leading cases.

Professors Daniel Solove and Paul Schwartz clearly and concisely distill all relevant information about privacy law into this short volume. PRIVACY LAW FUNDAMENTALS is designed to be like Strunk and White’s Elements …

Employment Discrimination Class Actions After Wal-Mart V. Dukes, Michael Selmi, Slyvia Tsakos

GW Law Faculty Publications & Other Works

The Supreme Court’s decision in Wal-Mart v. Dukes was widely seen as a game-changer with the likely effect of making employment discrimination class certifications more difficult. This Symposium contribution explores the effects of that decision through recent court interpretations. We find that, although class filings appear to be down, the decision did not alter the certification landscape nearly as much as had been feared. Courts have readily distinguished the Wal-Mart decision by focusing on its nationwide scope and it appears that certification decisions have not materially changed in light of the decision. One notable change is that defense counsel have …

The Clean Power Plan: Issues To Watch, Robert L. Glicksman, Emily Hammond, Alice Kaswan, William Buzbzee, Kirsten H. Engel, David M. Driesen, Victor Byers Flatt, Alexandra B. Klass, Thomas Owen Mcgarity, Melissa Powers, Joseph P. Tomain

GW Law Faculty Publications & Other Works

Although the Clean Air Act is an imperfect tool for addressing the nation’s greenhouse gas emissions, it is the only available federal mechanism for directly addressing power plant carbon emissions. The Obama Administration’s Clean Power Plan, published in final form in August 2015, tackles the challenge. This paper from the Center for Progressive Reform (CPR) compiles 13 separately authored essays from 11 CPR Member Scholars, each addressing a different topic related to the Clean Power Plan, and each representing the expertise and views of its individual author(s). Published in July 2015, just before the release of the final rule, the …

The Us Legal System On Data Protection In The Field Of Law Enforcement. Safeguards, Rights And Remedies For Eu Citizens, Francesca Bignami

GW Law Faculty Publications & Other Works

At the request of the LIBE Committee of the European Parliament, this study surveys the U.S. system of data protection in the field of federal law enforcement. Since the legal category of “data protection” does not formally exist in U.S. law, the study begins by setting out the substantive and procedural requirements of EU law that are canvassed in the context of information-gathering and surveillance by U.S. law enforcement agencies. The study then analyzes the data protection law governing federal agencies according to two criteria: sources and methods of surveillance and data collection. It first reviews the two principal sources …

The Law Of Intimate Work, Naomi Schoenbaum

GW Law Faculty Publications & Other Works

This Article introduces the concept of intimate work — intimate services provided by paid workers to a range of consumers — and seeks to unify its treatment in law. The concept explains multiple exceptions to work law that have previously been viewed as random and even contradictory. From the daycare worker to the divorce lawyer, the nurse to the hairstylist, intimate work introduces an intimate party — the consumer — into the arm’s-length employer-employee dyad on which work law is premised. This disruption leads to limited enforcement of non-compete agreements, the waiver or imposition of fiduciary duties, and exceptions to …

Book Review: Lessons In Censorship: How Schools And Courts Subvert Students’ First Amendment Rights (Catherine J. Ross), Naomi R. Cahn

GW Law Faculty Publications & Other Works

This book review of Catherine Ross's Lessons in Censorship places issues involving the free speech rights of public school students in the context of family law.

The Clean Power Plan: Testing The Limits Of Administrative Law And The Electric Grid, Emily Hammond, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

The Environmental Protection Agency’s (EPA) Clean Power Plan (CPP) is one of the most controversial and highest-stake rules ever issued by any agency. Proponents of the rule maintain that it is essential to mitigating the potentially devastating effects of climate change. Opponents, by contrast, argue that it is unlikely to be effective for its intended purpose and that it jeopardizes the reliability of the electricity grid. We are in the awkward position of agreeing with both the proponents and the opponents of the CPP. We want the rule to succeed in accomplishing its intended purpose but we fear that it …

Consume Or Invest: What Do/Should Agency Leaders Maximize?, William E. Kovacic, David A. Hyman

GW Law Faculty Publications & Other Works

In the regulatory state, agency leaders face a fundamental choice: should they “consume” or should they “invest?” “Consume” means launching high profile cases and rule-making. “Invest” means developing and nurturing the necessary infrastructure for the agency to handle whatever the future may bring. The former brings headlines, while the latter will be completely ignored. Unsurprisingly, consumption is routinely prioritized, and investment is deferred, downgraded, or overlooked entirely. This essay outlines the incentives for agency leadership to behave in this way and explores the resulting agency costs (pun intended). The U.S. Federal Trade Commission’s health care portfolio provides a useful case …

Can't Anyone Here Play This Game? Judging The Ftc's Critics, David A. Hyman, William E. Kovacic

GW Law Faculty Publications & Other Works

The conventional wisdom is that the FTC was the governmental equivalent of a leper colony prior to 1969, and its credibility and reputation were restored only by the adoption of the wise recommendations in the 1969 ABA Report. There is no question that the FTC deserves plenty of criticism for its pre-1969 performance. It is also beyond doubt that there has been a dramatic turn-around in the intervening forty-five years, as the FTC adopted the recommendations in the 1969 Report. But, before we simply genuflect at the wisdom of those responsible for the ABA Report and the inherent virtue of …

A New Approach To Voir Dire On Racial Bias, Cynthia Lee

GW Law Faculty Publications & Other Works

One question that attorneys in racially charged cases face is whether to attempt to conduct voir dire into racial bias. Voir dire is the process of questioning prospective jurors to ensure that those chosen to sit on the jury will be impartial and unbiased. Whether it is a good idea from a trial strategy perspective to voir dire prospective jurors when an attorney believes racial bias may have played a role in the events underlying the case is a question over which reasonable minds can disagree. Perhaps the most common view is that reflected by Albert Alschuler who suggested twenty-five …

Gpa Accession: Lessons Learned On The Strengths And Weaknesses Of The Wto Government Procurement Agreement, Christopher R. Yukins, Johannes S. Schnitzer

GW Law Faculty Publications & Other Works

Many member nations of the World Trade Organization (WTO) have joined the Government Procurement Agreement (GPA), a plurilateral agreement which aims to open public procurement markets. Joining the agreement reflects a commitment to international free trade, and to the rule of law in public procurement. A revised version of the GPA entered into force in 2014, and incorporated many amendments intended to make it easier for developing nations join the GPA. Among other things, the revised GPA now allows developing nations acceding to the GPA to open their public procurement markets more slowly, various transitional measures. This article reviews those …

The Puzzle Of Alfarabi's Parallel Works, Miriam Galston

GW Law Faculty Publications & Other Works

Scholars disagree about the correct interpretation of Alfarabi’s Political Regime and Virtuous City, treatises that have striking similarities, yet notable differences. For some, the treatises encapsulate Alfarabi’s philosophy; for others, they express only politically salutary opinions. Both interpretations fail to explain why he wrote parallel works. If both reflect Alfarabi’s genuine philosophic doctrines, why did he compose separate but parallel treatises, both written when his philosophy was mature? Alternatively, if the treatises are political or rhetorical, why did Alfarabi compose two versions, and why did he choose these two accounts rather than others? To answer these questions, I discuss several …

Constitutional Law: A Contemporary Approach, Gregory E. Maggs, Peter J. Smith

GW Law Faculty Publications & Other Works

The third edition of the casebook, which is suitable either for a one- or two-semester course, strives to make constitutional law easily teachable and readily accessible for students. The authors have selected the cases very carefully and provided extensive excerpts of the opinions so that students get a good sense of the Court's reasoning. Text boxes call the students' attention to important aspects of each opinion, and the book is filled with introductions, points for discussion, hypotheticals, and executive summaries. The authors present a diversity of views on every subject, and, reflecting some of their own disagreements, the authors have …

Transforming Document Recordation At The United States Copyright Office, Robert Brauneis

GW Law Faculty Publications & Other Works

For over 140 years, federal law has provided for recording of documents pertaining to copyright in one central location, at the Copyright Office and, before the Copyright Office was created as a separate unit, at the Library of Congress. Over that time, the copyright recordation system has supported a market for interests in and use of works of authorship by lowering the cost of obtaining information about ownership and by reducing unavoidable risks that threaten ownership. Yet the recordation system has not kept up with developments in technology and in business practices. This report, prepared while the author was serving …

Forget About It? Harmonizing European And American Protections For Privacy, Free Speech, And Due Process, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

No abstract provided.

Parsing The Visual Rhetoric Of Office Dress Codes: A Two-Step Process To Increase Inclusivity And Professionalism In Legal-Workplace Fashion, Karen Thornton

GW Law Faculty Publications & Other Works

Legal employers expect attorneys in their offices to use the ethos of personal appearance to project an image of competence to clients. This expectation is largely unspoken, however, and polling and anecdotal evidence alike show that in today’s workplace, employers are frustrated with the level of professionalism demonstrated by new employees. The goal of this article is to encourage open conversations about workplace fashion as it relates to an attorney’s professional identity. It is in both the employer’s and employee’s interests to clarify employer expectations and empower new members of the legal profession to adopt a personal sense of style …

Discretionary Death Penalty For Convicted Drug Couriers In Singapore: Reflections On High Jurisprudence Thus Far, Siyuan Chen

Research Collection Yong Pung How School Of Law

For decades, drug trafficking was a serious offence in Singapore potentially punishable by mandatory death. In 2012, Singapore’s Misuse of Drugs Act (MDA) was amended to give the courts sentencing discretion if the accused can first prove that he was merely a courier, and to better reflect the moral culpability accorded as between mules and kingpins in the hierarchy of drug syndicates. However, there are some complications in proving this. Not only must the accused show that he was merely a courier, he must also show that he had substantively assisted the authorities in disrupting drugtrafficking activities in Singapore. This …

The Regulation Of The Recreational Use Of “Drones” For Aerial Photography And Videography: Comparing Singapore’S Unmanned Aircraft Act With Other Legislation, Siyuan Chen

Research Collection Yong Pung How School Of Law

In the last few years, there has been a dramatic increase in the use of remote-controlled copters or “drones” by recreational users to capture aerial photographs and videos on an unprecedented scale. The convergence of cutting-edge technological developments in gyroscopic gimbals, long-range wireless transmissions, GPS-enabled stabilisation and flightpath-preprogramming, first-person-views, and compact digital imaging has led to the proliferation of these camera-carrying devices that even hobbyists can pilot with reasonable safety. However, there has been a consistent stream of public concern relating to issues of safety, privacy, and disruption of commercial interests. Lost in the paranoid cacophony is a question that …

"If You Is White, You's Alright....": Stories About Colorism In America, Kimberly Jade Norwood

Scholarship@WashULaw

This Article examines the inefficiencies of Missouri municipal courts that came into sharp focus following the killing of Michael Brown by Officer Darren Wilson in Ferguson, Missouri. Norwood details and expands on her lone dissent in the Final Report of the Municipal Division Work Group—a group created by the Missouri Supreme Court to address the alleged abuses of black and poor residents in Missouri. Norwood argues for consolidating failing municipal courts to create larger, more functional, and just courts.

Human Trafficking And Labor Migration: The Dichotomous Law And Complex Realities Of Filipina Entertainers In South Korea And Suggestions For Integrated And Contextualized Legal Responses, Yoon J. Shin

Vanderbilt Journal of Transnational Law

This Article examines the complex legal situation of Filipina "entertainers" in U.S. military camp towns in South Korea: the individuals located at the intersection of human trafficking and labor migration. The Article investigates how the dichotomous law fails to recognize these entertainers as either trafficking victims or as migrant workers. The law therefore denies proper legal rights and remedies for the serious rights violations they suffer in the destination state. This research demonstrates that these migrants have diverse needs, aspirations, and transnational experiences that embrace both victimhood and agency. It illuminates the fundamental problems of the current global anti-trafficking regime, …

Religious Rights In Historical, Theoretical, And International Context: Hobby Lobby As A Jurisprudential Anomaly?, S. I. Strong

Vanderbilt Journal of Transnational Law

The United States has a long and complicated history concerning religious rights, and the U.S. Supreme Court's recent decision in Burwell v. Hobby Lobby Stores, Inc. has done little to clear up the jurisprudence in this field. Although the decision will doubtless generate a great deal of commentary as a matter of constitutional and statutory law, the better approach is to consider whether and to what extent the majority and dissenting opinions reflect the fundamental principles of religious liberty. Only in that context can the merits of such a novel decision be evaluated free from political and other biases.

This …