Law Commons^™

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 …

Introduction. A New Field: Comparative Law And Regulation, Francesca Bignami

GW Law Faculty Publications & Other Works

The contemporary regulatory process is global. Markets and the problems they generate—consumer privacy, chemicals safety, and many others—cross borders and so too do regulatory efforts to address those problems. The process, however, by which national and international jurisdictions decide common regulatory problems defies the traditional mold of hierarchical state law. There is no world government with the power to impose a single set of principles and procedures on the multiple jurisdictions, and therefore the global regulatory process is characterized as much by diversity and discord as it is by coordination and convergence.

The new field of comparative law and regulation …

Regulation And The Courts: Judicial Review In Comparative Perspective, Francesca Bignami

GW Law Faculty Publications & Other Works

After a historical survey of the literature, this chapter puts forward a new analytical scheme to capture variation in comparative judicial review. The earliest, and still relevant, classification developed in the scholarly literature turns on the difference between judicial review of administrative action by the ordinary courts in the English common law and by a special body (Conseil d’Etat) connected to the executive branch in the French droit administratif. This is followed chronologically by the contrast that has been drawn by Robert Kagan and public-choice scholars between the litigious and formal American system of law and public policy and the …

Introductory Chapter To Elgar Encyclopedia Of Environmental Law: Decisionmaking In Environmental Law, Robert L. Glicksman, Lee C. Paddock

GW Law Faculty Publications & Other Works

This introductory chapter provides an overview of the growth of environmental law and the decision making structures that governments have developed to adopt, administer, and enforce it. It traces the manner in which cooperative federalism and public participation have affected decision making structures in environmental law, primarily in the United States. It summarizes key challenges that policymakers continue to face in designing environmental laws, including choices on the allocation of authority among different levels of government, the appropriate mix of regulatory and non-regulatory tools to use in environmental protection initiatives, efforts to accommodate environmental protection and economic growth objectives, techniques …

The Case For Symmetry In Antidiscrimination Law, Naomi Schoenbaum

GW Law Faculty Publications & Other Works

Antidiscrimination law faces a fundamental design question: the choice between symmetry and asymmetry. A symmetrical law prohibits discrimination on the basis of a trait for a universal class of persons, and for both “sides” of the trait. An asymmetrical law prohibits discrimination on the basis of one “side” of the trait, and for a limited class of persons. Current law is inconsistent in its design. For example, employment discrimination law prohibits race discrimination symmetrically (everyone is protected, and on the basis of any race), but prohibits disability discrimination asymmetrically (only the disabled are protected, and only on the basis of …

Towards A Law Of Coworkers, Naomi Schoenbaum

GW Law Faculty Publications & Other Works

A growing body of research reveals what most Americans already know from experience: that our coworkers play a central role in our lives. The significance of coworker relationships is only magnified in an era of expanding work hours in the twenty-four-seven economy. But the law does not reflect this reality, and instead relegates coworkers to the status of legal strangers. This Article argues that the law’s failure to recognize coworker relationships undermines not only these relationships, but also the goals of work law, and makes the case for a law of coworker relationships that would promote the equal, fair, and …

Gender And The Sharing Economy, Naomi Schoenbaum

GW Law Faculty Publications & Other Works

While the sharing economy has been celebrated as a flexible alternative to traditional employment for those with family responsibilities, especially women, it presents challenges for gender equality. Many of the services that are “shared” take place in the context of intimacy, which can have substantial consequences for transacting, particularly by enhancing the importance of identity of both the worker and the customer. Expanding on previous research on intimate work — a critical area that exists largely in limbo between the law of the market and the law of the family — this Article, written for the Cooper-Walsh Colloquium, explores the …

Patent Transfer And The Bundle Of Sticks, Andrew Michaels

GW Law Faculty Publications & Other Works

In the age of the patent troll, patents are often licensed and transferred. A transferred patent may have been subject to multiple complex license agreements. It cannot be that such a transfer wipes the patent clean of all outstanding license agreements; the licensee must keep the license. But at the same time, it cannot be that the patent transferee becomes a party to a complex and sweeping license agreement – the contract – merely by virtue of acquiring one patent. This article attempts to separate the in personam aspects of a license agreement from its effects on the underlying in …

Nonmarriage, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

Now that the Supreme Court has reshaped the laws of marriage, attention is shifting to nonmarriage. The law no longer treats intimate couples who do not marry as either deviant or deprived. Yet, rather than regulate nonmarriage in a systematic way, the law applies two inconsistent doctrines to govern these relationships. This Article is the first to explore the fundamental contradiction in the legal approach to unmarried partners. While the laws governing financial obligations between unmarried couples are moving toward a deregulatory model that radically differs from the status-based regulation of marriage, the laws of custody and support insist on …

Guns, Bird Feathers, And Overcriminalization: Why Courts Should Take The Second Amendment Seriously, Robert J. Cottrol, George Mocsary

GW Law Faculty Publications & Other Works

Who should the state punish? Why? Should punishment be proportional? This article surveys, in the context of these fundamental criminal-law questions, the Second Amendment’s constitutional history and jurisprudence. A vast body of evidence shows that the framers of both the Second and Fourteenth Amendments intended to protect the individual’s right to keep and carry arms for protection against both governmental and private aggression.

Yet courts, unwilling to allow disfavored groups the means of self-defense, or fearing being blamed for criminal firearm activity, have failed to enforce the right to bear arms to any meaningful extent. After the Civil War, the …

Causal Responsibility And Patent Infringement, Dmitry Karshtedt

GW Law Faculty Publications & Other Works

It is not uncommon for multiple parties in the stream of commerce — manufacturers, distributors, end users — to be involved in the infringement of a single patent. Yet courts continue to struggle with such scenarios. Attempts to deal with them — particularly when plaintiffs asserted so-called method patents, which cover specific “steps,” or actions — have produced results that defy commonsense notions of legal responsibility. In method patent cases, the patentee must clear much higher legal hurdles to prevail against a manufacturer who designed and supplied an infringing device than against an end user who simply bought that device …

Photocopies, Patents, And Knowledge Transfer: 'The Uneasy Case' Of Justice Breyer's Patentable Subject Matter Jurisprudence, Dmitry Karshtedt

GW Law Faculty Publications & Other Works

One aspect of Justice Stephen Breyer’s discomfort with patents, as expressed in his opinion for the Supreme Court in Mayo v. Prometheus and his dissent from the order dismissing certiorari in LabCorp v. Metabolite, is strikingly similar to one of his critiques of copyright law in The Uneasy Case for Copyright, a well-known article he wrote as Professor Breyer more than forty-five years ago. In The Uneasy Case, Breyer argued that the burdens on duplication of technical articles imposed by copyright law restrict the flow of information and prevent scientists from enjoying spillover benefits of published research. His patent opinions …

Making Black And Brown Lives Matter: Incorporating Race Into The Criminal Procedure Curriculum, Cynthia Lee

GW Law Faculty Publications & Other Works

In this article, Cynthia Lee addresses the issue of incorporating race into the criminal procedure curriculum. She notes that incorporating discussions about race into the curriculum involves some risk, particularly for junior professor of color but even for senior professors of color who might be perceived as promoting a personal agenda. She discusses ways that a law professor of any race who wishes to incorporate issues of race into the criminal procedure curriculum can do so.

Fika—Mindfulness For The Lrw Professor, Karen Thornton

GW Law Faculty Publications & Other Works

Too often, LRW professors sacrifice their love of writing to their devotion to teaching. This can have an adverse impact on career advancement. This Article shares the story of two LRW faculty members who used a cultural tradition to achieve balance, strengthen a collegial bond, and increase their scholarly productivity.

This article originally appeared in Perspectives: Teaching Legal Research and Writing, published by Thomson Reuters. For more information please visit http://info.legalsolutions.thomsonreuters.com/signup/newsletters/perspectives/.

Using The Student-Edited Law Review To Teach Critical Professional Skills, Karen Thornton

GW Law Faculty Publications & Other Works

At a time when law schools are being urged to add experiential learning opportunities to their curricula, law reviews may have been overlooked because the need is so obvious. Producing a journal is a professional endeavor requiring leadership by student editors who are in the process of forging their professional identity. Law schools have a responsibility to teach critical professional skills as part of the pedagogy to shape future lawyers. This article summarizes the need for law schools to provide experiential learning opportunities, unpacks the criticism faculty authors have heaped on student-led law reviews, and the describes a symposium-style training …

The Illegality Defence In Corporate Law Claims Against Directors And Officers, Wai Yee Wan

Research Collection Yong Pung How School Of Law

If a company incurs substantial fines or other pecuniary losses as a result of its unlawful conduct, can the company obtain an indemnity from its director/officer for having caused the company to incur such fines and losses? In particular, can the director/officer utilise the defence of illegality, notwithstanding that he has breached his duties owed to the company? The illegality defence, which raises the twin issues of the relationship between the unlawful act to the corporate claim and the attribution of the unlawful act to the company, has been the subject of detailed analysis recently in England, Singapore and Hong …

Hot Property In New Zealand: Empirical Evidence Of Housing Bubbles In The Metropolitan Centres, Ryan Greenaway-Mcgrevy, Peter C. B. Phillips

Research Collection School Of Economics

Using recently developed statistical methods for testing and dating exuberant behaviour in asset prices we document evidence of episodic bubbles in the New Zealand property market over the past two decades. The results show clear evidence of a broad-based New Zealand housing bubble that began in 2003 and collapsed over mid-2007 to early 2008 with the onset of the worldwide recession and the financial crisis. New methods of analysing market contagion are also developed and are used to examine spillovers from the Auckland property market to the other metropolitan centres. Evidence from the latest data reveals that the greater Auckland …

The Discretionary Death Penalty For Drug Couriers In Singapore: Four Challenges, Siyuan Chen

Research Collection Yong Pung How School Of Law

In 2012, Singapore amended its Misuse of Drugs to give courts hearing capital drug trafficking cases the discretion to replace the default death penalty with life imprisonment and caning, provided that the accused person can show that he was merely a drug courier and the prosecution certifies that he had substantively assisted the authorities in disrupting drug trafficking activities. The Singapore High Court and Court of Appeal have since made important pronouncements on the 2012 amendments, but several challenges remain: first, whether the privilege against self-incrimination has been further eroded; secondly, whether an accused person can invoke the statutory relief …

Animal Mourning: Précis Of How Animals Grieve (King 2013), Barbara J. King

Animal Sentience

Abstract: When an animal dies, that individual’s mate, relatives, or friends may express grief. Changes in the survivor’s patterns of social behavior, eating, sleeping, and/or of expression of affect are the key criteria for defining grief. Based on this understanding of grief, it is not only big-brained mammals like elephants, apes, and cetaceans who can be said to mourn, but also a wide variety of other animals, including domestic companions like cats, dogs, and rabbits; horses and farm animals; and some birds. With keen attention placed on seeking where grief is found to occur and where it is absent …