Law Commons^™

Steps Towards An Alignment Of Intellectual Property In South-South Exchanges: A Return To Trips, Ana Santos Rutschman

All Faculty Scholarship

Some of the most instrumental players in shaping the course of intellectual property policies in the South are the so-called BRIC countries. The acronym BRIC originally encompassed Brazil, Russia, India and China. In 2011, South Africa formally joined the BRIC countries, which are now referred to either by the original acronym or by BRICS. While categorizations like BRICS attract a fair amount of criticism, with questions surrounding the criteria used to aggregate disparate economies, the concept of emerging economies in the South seeking to advance similar development agendas has become accepted currency in multiple fields, from institutional cooperation to financial …

Religious Exemptions And The Limited Relevance Of Corporate Identity, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

Corporate religious liberty appears to be on the rise. The Supreme Court’s unanimous decision in Hosanna Tabor v. EEOC (2012) energized sweeping theories about “freedom of the church.” The Court’s more controversial decision in Burwell v Hobby Lobby Stores, Inc. (2014) determined that for-profit entities may be legally entitled to claim a corporate religious character. Speaking in the language of rights, commentators have vigorously debated the foundations and meaning of these decisions.

This chapter argues that these debates are misdirected. The special treatment of religion in American constitutional law does not properly rest on any theory that religious entities …

Eyes On The Prize, Head In The Sand: Filling The Due Process Vacuum In Federally Administered Contests, Steven L. Schooner, Nathaniel E. Castellano

GW Law Faculty Publications & Other Works

The article introduces readers to the recent proliferation of federal prize contests, which sovereigns have employed, albeit sporadically, since the mid-sixteenth century to incentivize breakthrough innovation. In the past decade, the federal government’s use of prize contests has skyrocketed, which makes sense in an era of constrained government resources. Prize contests offer seemingly unlimited potential to break through existing technological barriers at less expense than traditional innovation incentivizing tools such as contracts, grants, and patents. But that upside potential comes at a cost.

For every ebullient prizewinner, there are potentially innumerable “losers,” many of whom feel wronged, exploited, or, at …

Whither/Wither Alimony?, June Carbone, Naomi R. Cahn

GW Law Faculty Publications & Other Works

Can alimony be saved? Historically, alimony protected women's dependence during marriage. The most fundamental challenge for its continuation therefore rests on reconciling alimony with an era in which the majority of women, including 71% of mothers with children under 18, are in the labor market. This requires reconsideration of the nature of marriage, not just as a partnership ideal, which arguably it has long been, or as a relationship between equals, which has emerged more recently, but as an integrated part of a new economic model. This review of The Marriage Buyout by Cynthia Starnes assesses her justification for the …

Emerging Policy And Practice Issues (2015), Steven L. Schooner

GW Law Faculty Publications & Other Works

This paper, presented at the West Government Contracts Year in Review Conference (covering 2014), attempts to identify the key trends and issues in U.S. federal procurement for 2014. Consistent with prior practice, this chapter offers extensive coverage of the federal procurement, grant, and defense spending trends and attempts to predict what lies ahead, particularly with regard to legislative and executive activity (which, this year, was highlighted by Executive Order activity). The paper discusses, in addition to data, changes to OFPP and DoD leadership and the continued Defense Department Better Buying Power Initiative (now in version 3.0) and acquisition performance measurement …

Public Procurement Law: Key International Developments In 2014 — Part I: An American Perspective On The New European Public Procurement Directives, Christopher R. Yukins

GW Law Faculty Publications & Other Works

The year 2014 saw major developments in European public procurement law, as a number of new procurement directives finally came into force. This paper focuses on the two elements of the new European Union procurement directive, 2014/24/EU, most likely to affect the U.S. procurement community: new flexibility in the use of best-value negotiations, and expanded grounds for excluding potential contractors, for corruption or otherwise. The paper also will discuss how the new procurement directive may affect ongoing trade negotiations, especially between the United States and Europe under the Transatlantic Trade and Investment Partnership (TTIP).

Class, Politics, Gender And The Marriage Divide In The United States, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

In this article we use the idea of the 'marriage divide' to describe the transformation of the family to meet the needs of the information economy and the divisions that the transformation has created. In doing so, we emphasise three types of 'marriage divides' in the United States: class and racial, ideological and political, and family law/gender ideology.

Mandatory Disclosure: A Case Study In How Anti-Corruption Measures Can Affect Competition In Defense Markets, Christopher R. Yukins

GW Law Faculty Publications & Other Works

In the U.S. defense procurement market, regulators require contractors to make “mandatory disclosures” if principals at those firms determine, after due review, that there is credible evidence that the firms engaged in certain crimes (fraud, bribery or gratuities), civil fraud, or significant overpayment by the government. Failure to make such a mandatory disclosure, required by clause and by regulation, can lead to (among other things) the debarment of the contractor -- a potentially devastating result. Mandatory disclosure is a natural extension of a separate requirement, that contractors maintain effective corporate compliance and ethics systems, and the Defense Department’s largest prime …

First Report Of The Special Rapporteur On Crimes Against Humanity, Sean D. Murphy

GW Law Faculty Publications & Other Works

In the field of international law, three core crimes generally make up the jurisdiction of international criminal tribunals: war crimes; genocide; and crimes against humanity. Only two of these crimes (war crimes and genocide) are the subject of a global treaty that requires States to prevent and punish such conduct and to cooperate among themselves toward those ends. By contrast, there is no such treaty dedicated to preventing and punishing crimes against humanity.

Yet crimes against humanity may be more prevalent than either genocide or war crimes. Such crimes may occur in situations not involving armed conflict and do not …

Moving Targets: Obergefell, Hobby Lobby, And The Future Of Lgbt Rights, Ira C. Lupu

GW Law Faculty Publications & Other Works

The recognition of marriage equality in Obergefell v. Hodges, just one year after Burwell v. Hobby Lobby Stores, Inc. broadened the law of religious freedom, highlights the potential collision course of these movements. This paper is an attempt to navigate the waters where such a collision is most likely. As LGBT rights grow, the choice between generic religious privilege, typified by the Religious Freedom Restoration Act (RFRA), and specific religious accommodations, such as the treatment of religious non- profits in federal law, will define the terms of the conflict. Part I addresses current federal law, and focuses on the extent …

Ruth Bader Ginsburg And The Interaction Of Legal Systems, Paul Schiff Berman

GW Law Faculty Publications & Other Works

The idea of legal pluralism is that law must always negotiate situations when multiple communities and legal authorities seek to regulate the same act or actor. These overlapping jurisdictional assertions may occur because of federalism, or because disputes often cross territorial borders, or because of complicated inter-jurisdictional arrangements, as with Indian tribes in the United States. In all of these situations, judges must develop strategies for determining how best to balance the competing claims of multiple communities: does the law of one community triumph, does the law of the other community triumph, or is there some hybrid solution available?

This …

Food And Condiments For The Twenty-First Century: Business, Science, And Policy, Lewis D. Solomon

GW Law Faculty Publications & Other Works

We are in the midst of a paradigm shift in the food industry. People are more closely examining the impact of food not only on their health and wellness but also on the environment. Some are also concerned about the relationship between food and animal welfare as well as resource scarcities. Big food conglomerates face competition from upstart rivals. The for-profit companies profiled in this work, Nu-tek Food Science, Lyrical Foods, Hampton Creek, Beyond Meat, Impossible Foods, Modern Meadow, and Rosa Labs, are leading the reinvention of condiments and food. Although picking winners and also-rans represents a difficult endeavor, some …

Judge Bork’S Remarkable Adherence To Unremarkable Principles Of National Security Law, Gregory E. Maggs

GW Law Faculty Publications & Other Works

The late Judge Robert H. Bork is usually remembered as an eminent jurist and scholar in the fields of antitrust law and constitutional law. His judicial opinions and his writings, especially The Antitrust Paradox1 and The Tempting of America,2 are certainly standards in these areas. Judge Bork, however, also deserves acclaim for his contributions to other fields of law. One extremely important subject, in which Judge Bork’s judicial work has received little attention, is the law pertaining to national security and U.S. foreign relations. This essay discusses Judge Bork’s opinions in four important D.C. Circuit cases: Demjanjuk v. Meese,3 Persinger …

The Peter Humphrey/Yu Yingzeng Case And Business Intelligence In China, Donald C. Clarke

GW Law Faculty Publications & Other Works

The case of Peter Humphrey and Yu Yingzeng, convicted in China on August 2014 on charges of unlawful acquisition of citizens’ personal information, raises important issues about Chinese law. A narrow but important issue is how Chinese law draws the line between lawful and unlawful acquisition of information, a practice routinely carried out by businesses and individuals. This article examines the trial transcript and judgment in the Humphrey/Yu case and finds that it sheds regrettably little light on what remains a murky question. A broader issue is whether the Chinese legal system can be counted on to operate in a …

China’S Legal System And The Fourth Plenum, Donald C. Clarke

GW Law Faculty Publications & Other Works

The Chinese Communist Party (CCP) Central Committee’s Fourth Plenum, held in October 2014, was its first meeting specifically devoted to the legal system, and as such attracted much from those interested in Chinese law. But the official Decision of the Fourth Plenum does not represent a conversion to the ideology of rule of law. Even if the leadership were to desire the system of accountability and institutionalized restraint on government that is generally understood by the term “rule of law,” it could not be accomplished any time soon and would require changes in entrenched features of the current political and …

Advocate Yes; Witness No, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

This article examines United States v. Rangel-Guzman, 752 F.3d 1222 (9th Circ. 2014) to illustrate the possibility of a lawyer violating Model Rule of Professional Conduct 3.7 without ever becoming an official witness.

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 …