Law Commons^™

Money Can’T Buy You Love: Valuing Contributions By Nonresidential Fathers, Laurie S. Kohn

GW Law Faculty Publications & Other Works

This article examines the roots of the disproportionate values the legal system assigns to paternal roles in the family law and child support system, looking to social norms, traditional family law, and the state's interests in the well-being of children. This hierarchy of values reveals itself in the current structure of child support laws and in the enforcement of parenting-time orders on the one hand and child support obligations on the other. The article considers how the allocation of disproportionate values impacts low-income fathers, mothers, children, and the state. The article envisions ways in which the family law system could …

Theories Of Civil Society And Global Administrative Law: The Case Of The World Bank And International Development, Francesca Bignami

GW Law Faculty Publications & Other Works

For over two decades, the concept of civil society has informed institutional design in the international realm. Empowering civil society has served as a key rhetorical and policy response to the criticism that the social and economic processes of globalization and the international organizations that have emerged to govern the global realm are illegitimate, elite driven, and anti-democratic. This chapter, which appears in the Elgar Research Handbook on Global Administrative Law, unpacks the concept of civil society with the aim of understanding the institutional reforms that have been undertaken in one important area of global governance—the international development law of …

Don't End Or Audit The Fed: Central Bank Independence In An Age Of Austerity, Neil H. Buchanan, Michael C. Dorf

GW Law Faculty Publications & Other Works

The Federal Reserve (“Fed”) is the central bank of the United States. Because of its power and importance in guiding the economy, the Fed’s independence from direct political influence has made it a target of ideologically motivated attacks throughout its history, with an especially aggressive round of attacks coming in the wake of the 2008 financial crisis and ongoing today. We defend Fed independence. We point to the Fed’s exemplary performance during and after the 2008 crisis, and we offer the example of a potential future crisis in which Congress fails to increase the debt ceiling to show how the …

Brief Of The Domestic Violence Legal Empowerment And Appeals Project, Aequitas: The Prosecutors' Resource On Violence Against Women, & Futures Without Violence As Amici Curiae In Support Of Respondent, Voisine V. United States, No. 14-10154 (U.S. Jan. 26, 2016)., Joan S. Meier

GW Law Faculty Publications & Other Works

No abstract provided.

International Procurement Developments In 2015: Structural Reforms To International Procurement Laws, Christopher R. Yukins

GW Law Faculty Publications & Other Works

The year 2015 saw major structural changes to international procurement rules -- including (1) a proposed Trans-Pacific Partnership (TPP) trade agreement which will impact procurement, and important shifts in Canada’s laws regarding contractor debarment and exclusion (discussed here by Brenda Swick), (2) European procurement laws which favor open, multilateral negotiations (Hans-Joachim Priess), and (2) new, more liberal procurement policies at the World Bank (Christopher Yukins) -- all of which are likely to help open procurement markets around the world. This article, prepared for presentation at the February 2016 Thomson-Reuters Year in Review conference in Washington, D.C., surveys these developments and …

Second Report On Crimes Against Humanity, Sean D. Murphy

GW Law Faculty Publications & Other Works

In July 2014, the U.N. International Law Commission placed the topic “Crimes against humanity” on its current program of work and appointed a Special Rapporteur. According to the topic proposal, the objective of the Commission is to draft articles for what could become a Convention on the Prevention and Punishment of Crimes against Humanity.

In July 2015, based on the Special Rapporteur’s First Report, the Commission provisionally adopted the first four draft articles with commentary. In this Second Report, which will be debated by the Commission during the summer of 2016, the Special Rapporteur proposes an additional six draft articles, …

Adversary Breakdown And Judicial Role Confusion In “Small Case” Civil Justice, Jessica K. Steinberg

GW Law Faculty Publications & Other Works

This Article calls attention to the breakdown of adversary procedure in a largely unexplored area of the civil justice system: the ordinary, two-party case. The twenty-first century judge confronts an entirely new state of affairs in presiding over the average civil matter. In place of the adversarial party contest, engineered and staged by attorneys, judges now face the rise of an unrepresented majority unable to propel claims, facts, and evidence into the courtroom. The adversary ideal favors a passive judge, but the unrealistic demands of such a paradigm in today’s “small case” civil justice system have sparked role confusion among …

The Narrowing Of Federal Power By The American Political Capital, David Fontana

GW Law Faculty Publications & Other Works

This Essay -- prepared for a symposium hosted by the William & Mary Bill of Rights Journal on the future of the District of Columbia -- argues that American federal power can be better understood by considering the features of the metropolitan area that houses the most important parts of the American federal government. In other American metropolitan areas and in most capital metropolitan areas elsewhere in the world, local life features multiple and diverse industries. Washington is the metropolitan area that houses the most important parts of the American federal government, and Washington is dominated by the government and …

Placing The Government In Fragile Democracies, David Fontana

GW Law Faculty Publications & Other Works

No abstract provided.

The Ultimate Unifying Approach To Complying With All Laws And Regulations, Daniel J. Solove, Woodrow Hartzog

GW Law Faculty Publications & Other Works

There are countless laws and regulations that must be complied with, and the task of figuring out what to do to satisfy all of them seems nearly impossible. In this article, Professors Daniel Solove and Woodrow Hartzog develop a unified approach to doing so. This approach (patent pending) was developed over the course of several decades of extensive analysis of every relevant law and regulation.

Statistical Inequality And Intentional (Not Implicit) Discrimination, Michael Selmi

GW Law Faculty Publications & Other Works

Racial disparities remain a disturbing fact of American life but whether those disparities are the product of discrimination remains deeply contested. This is an important question because as a society we are committed to remedying discrimination but are significantly more conflicted over addressing racial disparities that are not tied to discrimination. This essay explores the question of how we can determine when statistical disparities are the product of discrimination, and relies on two areas where the presence of racial disparities are incontrovertible – police automobile stops and school discipline. Based on a large number of studies, there is little question …

How The Creation Of Appellate Courts In England And The United States Limited Judicial Comment On Evidence To The Jury, Renée Lettow Lerner

GW Law Faculty Publications & Other Works

The practice of judicial comment on the evidence has traditionally been the main form of jury control. Previous scholarly work has focused on the loss of the power in state courts, and has attributed the decline of judicial comment to a strict separation of functions between judge and jury and to regional differences in legal culture. This article examines two jurisdictions in which the power of comment long remained strong, at least in theory: the High Court of England, with its predecessors, and the federal courts in the United States. In both jurisdictions, judicial power to comment has been limited …

The Troublesome Inheritance Of Americans In Magna Carta And Trial By Jury, Renée Lettow Lerner

GW Law Faculty Publications & Other Works

Many Americans insisted on their traditional rights as Englishmen in the conflict with Britain before and after declaring independence. Magna Carta—particularly the provisions concerning the “law of the land” and “judgment of his peers”—embodied fundamental rights of Englishmen that American revolutionaries were willing to fight to protect. As Edward Coke had found more than a century before, American revolutionaries understood that invoking such an ancient document inspired resistance to authority.

Americans cherished Magna Carta most because of its association with jury trial. Juries had proved useful to Americans in their conflict with Britain. Colonial American juries had nullified the law …

Individual Sanctions For Competition Law Infringements: Pros, Cons And Challenges, William E. Kovacic, Florian Wagner-Von Paap, Autorite De La Concurrence, Daniel Zimmer, Andreas Stephan

GW Law Faculty Publications & Other Works

Following the substantive harmonization in Regulation (EC) no. 1/2003, the European Commission has started more recently to focus on the harmonization of procedure and sanctions, and in January 2016, the European Parliament called for penalties against natural persons. This special issue looks at the current state of individual sanctions on the EU Member State level, examines from a comparative perspective the institutional challenges which these individual sanctions present, especially for leniency programmes, and discusses the pros and cons of introducing further individual, in particular criminal sanctions in Europe. It examines the experience with criminal sanctions in France, Germany, the United …

The Inefficient Evolution Of Merger Agreements, Jeffrey Manns

GW Law Faculty Publications & Other Works

Transactional law is one of the most economically significant areas of legal practice and accounts for a large percentage of the profits and staffing at most elite law firms. But in spite of its economic importance, there has been almost no empirical work on the legal drafting process and the evolution of transactional documents over time. We have sought to fill this gap by analyzing the evolution of public company merger agreements in a dataset that encompasses 12,000 merger agreements over a 20-year period. Using computer textual analysis, we are able to identify the precedent, an earlier merger agreement, which …

Explaining Variations In Bailout Policies: A Review Of Cornelia Woll's The Power Of Inaction, Arthur E. Wilmarth Jr., Kelsey M. Barnes

GW Law Faculty Publications & Other Works

In The Power of Inaction: Bank Bailouts in Comparison (Cornell Univ. Press, 2014), Professor Cornelia Woll asks a question of fundamental importance: "What was the nature of power [that] finance wielded over the fate of the economy and the crisis management in 2008, which affected the lives of so many?" To measure the effective power that the financial industry wielded during the crisis, Woll compares the terms of bailout programs that governments adopted in six countries. She contends that financial institutions were more likely to receive larger amounts of public support, and to make minimal contributions to rescue plans, in …

Why Black Homeowners Are More Likely To Be Caribbean-American Than African-American In New York: A Theory Of How Early West Indian Migrants Broke Racial Cartels In Housing, Eleanor Marie Brown

GW Law Faculty Publications & Other Works

Why are the black brownstone owners in Harlem and Brooklyn disproportionately West Indian? The landlords, West Indian-American? The tenants African-American? These are tough questions. For students of housing discrimination, West Indian Americans have long presented a quandary. If it is reasonable to assume that racial exclusions are being consistently applied to persons who are dark-skinned, one would expect to find that housing discrimination has had similar effects on West Indian-Americans and African-Americans. Yet this is not the case: West Indian-Americans generally own and rent higher quality housing than African-Americans.

Moreover, these advantages began long ago. For example, when racial covenants, …

On The Evolution Of Property Ownership Among Former Slaves, Newly Freedmen, Eleanor Marie Brown

GW Law Faculty Publications & Other Works

One might think of the slave property system of provision grounds (or “provisioning”) in the West Indies as a happy coalition of interests between planters (who wanted to provide slaves incentives to feed themselves), Westminster (who wanted well-fed slaves to ensure the productivity of the sugar sector, a hefty tax contributor to the Exchequer), and slaves (who saw the advantages of a system which ensured that they were fed and encouraged private enterprise). Yet while this was generally true, notably, not all members of the plantocracy viewed these developments as positive. An outspoken minority feared that the roots of the …

Berkshire's Blemishes: Lessons For Buffett's Successors, Peers, And Policy, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

Berkshire Hathaway’s unique managerial model is lauded for its great value; this article highlights its costs. Most costs stem from the same features that yield such great value, which boil down, ironically, to Berkshire trying to be something it isn’t: it is a massive industrial conglomerate run as an old-fashioned investment partnership. An advisory board gives unchecked power to a single manager (Warren Buffett); Buffett makes huge capital allocations and pivotal executive hiring-and-firing decisions with modest investigation and scant oversight; Berkshire’s autonomous and decentralized structure grants operating managers enormous discretion with limited second-guessing; its trust-based culture relies on a cultivated …

Keynote Address | Sexual Offenses: Lessons From The Front Lines, Lisa M. Schenck

GW Law Faculty Publications & Other Works

This is an edited transcript of a keynote address as delivered on November 6, 2015 at Southwestern Law School, Los Angeles, CA.

Just The Facts Ma’Am": How Military Appellate Courts Rely On Factual Sufficiency Review To Overturn Sexual Assault Cases When Victims Are "Incapacitated", Lisa M. Schenck

GW Law Faculty Publications & Other Works

This article contends that since sufficient protections are now in place in the military justice system, the military courts of criminal appeals no longer require factual sufficiency review authority to protect an accused tried by courts-martial, and furthermore, military criminal courts of appeals should have the same standard of review as other federal criminal courts, that is, a conviction should be tested for legal sufficiency.

The Law Of China's Local Government Debt Crisis: Local Government Financing Vehicles And Their Bonds, Donald C. Clarke

GW Law Faculty Publications & Other Works

Local government financing vehicles (“LGFVs”)—companies capitalized and owned by local government and established for the purpose of raising funds for municipal infrastructure construction—emerged in China in the 1980s as a response to the severe constraints on indebtedness by local governments themselves. The mushrooming of their number and indebtedness has sparked fears about their ability to repay the debt and the consequences of a default. In addition to taking on bank debt, a number of LGFVs have also issued bonds. While observers have questioned the value of collateral typically offered as security for the bonds, we know of no extensive analysis …

Fall 2016 Supplement To Brauneis & Schechter, Copyright: A Contemporary Approach, Robert Brauneis, Roger E. Schechter

GW Law Faculty Publications & Other Works

This cumulative supplement contains additional materials for Brauneis and Schechter, Copyright: A Contemporary Approach (1st ed. 2012) that make it current through July 2016. Special features include a hyperlinked table of references to 19 recent cases decided since July 2015, which may be helpful in getting an overview of developments over this past year; a hyperlinked table of contents to all inserts; and a chapter-by-chapter guide to using the supplement, intended for professors who are creating or updating syllabi. The supplement contains nine principal cases with notes, as well as dozens of other updates.

Incomplete Dispositions, Naomi R. Cahn

GW Law Faculty Publications & Other Works

In Irresolute Testators, Professor Jane Baron provocatively suggests the existence of two distinct types of testators: the rational, autonomous testator who has made deliberate choices about the contents of her will and whose errors, if any, are minor; and the more vulnerable, less resolute testator who may not have actually made the final decisions enshrined in a formal will. To illustrate how these testators appear in wills law, she analyzes how courts apply the doctrines of harmless error and mistake reformation. While the two doctrines appear to be intended to help the resolute testator, courts instead, she suggests, also apply …

Prelude To Glass-Steagall: Abusive Securities Practices By National City Bank And Chase National Bank During The “Roaring Twenties”, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

From the late 1990s through 2008, the United States experienced the largest boom-and- bust cycle in its securities and housing markets since the “Roaring Twenties” and the Great Depression. Scholars have studied the events that led to the recent financial crisis and have compared those events to the causes of the Great Depression. In particular, analysts have considered whether “universal banks” – financial conglomerates that control deposit-taking banks as well as securities broker-dealers – played central roles in both crises.

Congress responded to the Great Depression by adopting the Glass-Steagall Act of 1933, which outlawed first-generation universal banks and established …

Prior Consistent Statements: The Dangers Of Misinterpreting Recently Amended Fre 801(D)(1)(B)*, Laird Kirkpatrick, Christopher B. Mueller

GW Law Faculty Publications & Other Works

Federal Rule of Evidence 801(d)(1)(B) has long provided that prior statements consistent with the testimony of a witness who is subject to cross-examination may be introduced and used as substantive evidence when offered “to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying.” At the end of 2014, the rule was amended also to allow prior consistent statements to be introduced as substantive evidence when offered “to rehabilitate the declarant’s credibility as a witness when attacked on another ground.”

What's Warren Buffett's Secret To Great Writing?, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

The gold standard in corporate communications is that of Warren Buffett’s letters to shareholders. When leaders of the National Association of Corporate Directors wanted to understand exactly why they are so valuable, they turned to Lawrence Cunningham, an incomparably informed and knowledgeable expert on the subject, having since 1995 been Buffett’s handpicked compiler and editor of The Essays Warren Buffett: Lessons for Corporate America. The editors of NACD’s quarterly, Directorship, published Cunningham’s article as their cover story in the summer of 2016. They explained:

The legendary chair and CEO of Berkshire Hathaway has nearly perfected the art of writing his …

Too Big And Unable To Fail, Arthur E. Wilmarth Jr., Stephen Lubben

GW Law Faculty Publications & Other Works

Financial regulation after the Dodd-Frank Act has produced a blizzard of acronyms, many of which revolve around the “too big to fail” (TBTF) problem. OLA, OLF, SPOE, and TLAC are new regulatory tools that seek to build a new regime for resolving failures of systemically important financial institutions (SIFIs). The explicit goal of this new regime is to enable a SIFI to fail, just like United Airlines or Blockbuster Video, without requiring a government bailout. In this article, we express significant doubts about the new regime’s ability to work as advertised. The “single point of entry” (SPOE) resolution strategy, which …

Double Deference In Administrative Law, Emily Hammond

GW Law Faculty Publications & Other Works

Administrative law presumes a neat system of agency rulemaking and adjudication followed by judicial review. But the reality of the administrative state departs starkly from this model. One such departure is the use of audited self-regulatory organizations (SROs) -- private organizations comprised of specific industries that formulate binding law to regulate themselves. Although SROs operate subject to the oversight of federal agencies, their power is vast, reaching significant swaths of the national and international economies. There is little to constitutionally constrain such arrangements, and whereas the administrative law model values the norms of participation, deliberation, and transparency, the procedures used …

Technological Innovation, Data Analytics, And Environmental Enforcement, Robert L. Glicksman

GW Law Faculty Publications & Other Works

Technical innovation is ubiquitous in contemporary society and contributes to its extraordinarily dynamic character. Sometimes these innovations have significant effects on the state of the environment or on human health and they have stimulated efforts to develop second order technologies to ameliorate those effects. The development of the automobile and its impact on life in the United States and throughout the world is an example. The story of modern environmental regulation more generally includes chapters filled with examples of similar efforts to respond to an enormous array of technological advances.

This Article uses a different lens to consider the role …