Law Commons^™

Florida's Certificate Of Need: A Prescription For Government-Private Collusion And Antitrust Violation, Dane Stuhlsatz

FIU Law Review

No abstract provided.

Curing The Cost Disease: Legal Education, Legal Services, And The Role Of Income-Contingent Loans, John R. Brooks

Georgetown Law Faculty Publications and Other Works

The costs of both legal education and legal services have been rising steadily for decades. This is because they share a common root: the constant above-inflation growth in the cost of labor-intensive goods and services known as the “cost disease.” The cost disease story roots cost growth not in market failure or bureaucratic waste, but in natural, even healthy, economic forces—productivity and wage growth. Because the source of this cost growth is productivity growth, the nature of the cost disease is such that an economy as a whole can afford these rising costs. But in a world of deep income …

Reaching For Mediocrity: Competition And Stagnation In Pharmaceutical Innovation, Son Le, Neel U. Sukhatme

Georgetown Law Faculty Publications and Other Works

Patents might incentivize invention but they do not guarantee firms will invest in projects that maximize social utility. We model how risk-neutral firms’ ability to obtain substantial private returns on marginal new technologies causes them to “reach for mediocrity” by investing in socially-suboptimal projects, even in the presence of competition and new entrants. Focusing primarily on pharmaceutical innovation, we analyze various policy interventions to solve this underinvestment problem. In particular, we describe a new approach to patents – a value based patent system, which ties patent protection to the underlying invention’s social value – and show how it incentivizes socially-optimal …

Federalism Hedging, Entrenchment, And The Climate Challenge, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

The virtues and effects of federalism continue to generate political, judicial and scholarly ferment. While some federalism partisans champion exclusivity and separation, others praise the more common political choice to retain federal and state regulatory overlap and interaction. Much of this work, however, focuses on government learning or rule clarity, giving little or no attention to how different federalism choices can heighten or hedge risks of regulatory failure and policy reversal. These debates play out with unusual fervor and with high stakes in battles over climate change regulation. Despite broad agreement that any effective climate policy intervention must include national …

A Tale Of Two Sovereigns: Federal And State Use And Regulation Of Unmanned Aircraft Systems, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

Despite claims to the contrary, the federal government is severely limited in what it can do to regulate unmanned aircraft systems (UASs). States, on the other hand, as governments of general jurisdiction, have expansive powers that they are already using to grapple with the questions posed by UAS related to privacy, crime, and public safety. This chapter outlines the evolution of federal measures, noting their limitations, before delving into three categories of state law, related to law enforcement, criminal measures, and regulatory regimes. The chapter then turns to the history of state sovereignty, looking at states’ jurisdiction over persons and …

A Hiatus In Soft-Power Administrative Law: The Case Of Medicaid Eligibility Waivers, David A. Super

Georgetown Law Faculty Publications and Other Works

Administrative law is fundamentally a regime of soft power. Congress, the President, administrative agencies, civil servants, and the courts all operate within a broad consensus for rational, good-faith decisionmaking. Congress grants agencies discretion, and courts and civil servants defer to agencies’ political leadership based largely on the expectation that the latter are seeking to honor statutes’ purposes. That expectation of prudential restraint also allays concerns about delegations of legislative power. When the executive systematically disregards that expectation and seeks single-mindedly to maximize achievement of its policy objectives, deference’s justification breaks down.

Across agencies, the Trump administration has disregarded the assumptions …

Entire Issue Vol. 7 No. 6

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

Vol. 7(6)

Maurice E. Stucke & Allen P. Grunes, Big Data And Competition Policy, Oxford University Press, 2016, Pp. 368 (Marcin Mleczko), Marcin Mleczko

internetowy Kwartalnik Antymonopolowy i Regulacyjny (internet Quarterly on Antitrust and Regulation)

No abstract provided.

What The Police Don't Know May Hurt Us: An Argument For Enhanced Legal Training Of Police Officers, Yuri R. Linetsky

Articles

No abstract provided.

Beyond Physicians: The Effect Of Licensing And Liability Laws On The Supply Of Nurse Practitioners And Physician Assistants, Benjamin Mcmichael

Articles

The increased use of nurse practitioners (NPs) and physician assistants (PAs) represents an important option for increasing access to healthcare. I explore the effect of two types of laws on the supply of NPs and PAs: occupational licensing laws that limit the practices of NPs and PAs and caps on noneconomic damages. Relaxing licensing laws to allow NPs to practice with less physician oversight increases the supply of NPs in areas with few practicing physicians by 60 percent - though the size of this increases as the supply of physicians grows. I find similar, but weaker, evidence for granting PAs …

Federalism: Deference Meets Delegation: Which Is The Most Dangerous Branch, C. Boyden Gray, David B. Rivkin Jr., John C. Eastman, Brett Kavanaugh

University of Dayton Law Review

The following is a transcript of a 2016 Federalist Society panel entitled "Federalism: Deference Meets Delegation: Which is the Most Dangerous Branch?" The panel originally occurred on November 12, 2015, during the National Lawyers Convention in Washington, D.C. The panelists were: C. Boyden Gray, Attorney at Boyden, Gray and Associates and former U.S. Ambassador to the European Union; David B. Rivkin Jr., Partner at BakerHostetler; Neal K. Katyal, Attorney at Hogan Lovells and former acting U.S. Solicitor General; and John C. Eastman, Henry Salvatori Professor of Law & Community Service at Chapman University School of Law. The moderator was the …

Text Over Intent And The Demise Of Legislative History, Thomas W. Merrill, Michael S. Paulsen, Saikrishna Prakash, Lawrence B. Solum, Sandra Segal Ikuta

University of Dayton Law Review

The following is the transcript of a 2016 Federalist Society panel entitled: Text Over Intent and the Demise of Legislative History. The panel originally occurred on November 17, 2016 during the National Lawyers Convention in Washington, D.C. The participants were: Prof. Thomas W. Merrill, Charles Evans Hughes Professor of Law, Columbia Law School; Prof. Michael S. Paulsen, Distinguished University Chair and Professor, University of St. Thomas School of Law; Prof. Saikrishna Prakash, James Monroe Distinguished Professor of Law, University of Virginia School of Law; Prof. Lawrence B. Solum, Carmack Waterhouse Professor of Law, Georgetown University Law Center. The moderator was …

A Label Law That Requires No Label, Amy Mclaughlin

University of Dayton Law Review

No abstract provided.

Labor And Employment: The Battle For The Gig Economy, Mark Brnovich, Mark Floyd, Randel K. Johnson, Bill Samuel, Thomas M. Hardiman

University of Dayton Law Review

The following is a transcript of a 2016 Federalist Society panel entitled Labor & Employment Law: The Battle for the Gig Economy. The panel originally occurred on November 17, 2016 during the National Lawyers Convention in Washington, D.C. The panelists were: Mark Brnovich, Attorney General, Arizona; Mr. Mark Floyd, Senior Director and Global Relations Lead, Uber Technologies Inc.; Mr. Randel K. Johnson, Senior Vice President, Labor, Immigration and Employee Benefits, U.S. Chamber of Commerce; and Mr. Bill Samuel, Director of Government Affairs, AFL-CIO. The moderator was the Honorable Judge Thomas M. Hardiman of the U.S. Court of Appeals, Third Circuit.

Reforming The Law On Police Use Of Deadly Force: De-Escalation, Pre-Seizure Conduct, And Imperfect Self-Defense, Cynthia Lee

GW Law Faculty Publications & Other Works

This article seeks to contribute to the national conversation on reforming police practices by evaluating the current law on police use of deadly force, identifying problems with that law, and suggesting a modest change to that law in the form of model legislation governing police use of deadly force. Existing statutes on police use of deadly force tend to focus on the reasonableness of the officer's belief in the need to use force. This article suggests that the law should be reformed to explicitly include a focus on the reasonableness of the officer's actions. Under the proposed model statute, in …

Human Rights Extraterritoriality: The Right To Privacy And National Security Surveillance, Francesca Bignami, Giorgio Resta

GW Law Faculty Publications & Other Works

This chapter focuses on the international right to privacy and national security surveillance by spy agencies. It assesses the extent to which the law of the United States and Europe (EU and ECtHR) afford extraterritorial protection for the right to privacy, in furtherance of the international human right to privacy. The chapter concludes that U.S. law draws a stark line between insiders (U.S. citizens and permanent residents) and outsiders, and affords significantly more protection for insiders. On the European side, even though the EU does not have jurisdiction internally over spy agencies, it does have the power to regulate foreign …

How Perris V. Hexamer Was Lost In The Shadow Of Baker V. Selden, Zvi S. Rosen

GW Law Faculty Publications & Other Works

Perris v. Hexamer stands out as case that is equal parts important and forgotten. It is obviously important – it is one of a preciously small number of Supreme Court decisions on the idea/expression dichotomy, but it is mostly forgotten in favor of the Court’s decision the following year in Baker v. Selden. It is equally obscure – Westlaw counts 2,703 citations of Baker v. Selden, and 81 of Perris v. Hexamer. Yet the subject matter of both decisions is surprisingly similar, and these cases tell us far more when considered in tandem than when either one is considered on …

The Constitutional Case For Chevron Deference, Jonathan R. Siegel

GW Law Faculty Publications & Other Works

Prominent figures in the legal world have recently attacked the doctrine of Chevron deference, suggesting that Chevron is unconstitutional because it interferes with a court’s duty to exercise “independent judgment” when interpreting statutes. This Article shows that Chevron’s critics are mistaken. Chevron deference, properly understood, does not prevent courts from interpreting statutes. An interpretation that concludes that a statute delegates power to an executive agency is still an interpretation. The power implicitly delegated to an agency by an ambiguous statute is not the power to interpret the statute, but the power to make a policy choice within the limits set …

Legal Jurisdiction And The Deterritorialization Of Data, Paul Schiff Berman

GW Law Faculty Publications & Other Works

Electronic data—everything from e-mails and text messages to Facebook and Instagram posts to Twitter pronouncements to drone warfare data to search algorithms to financial transactions to cloud data storage—travels around the globe with little relationship to physical territory. In addition, all of this data is often in the custody and control of data intermediaries such as Google, Facebook, Twitter, Apple, Microsoft, Amazon, private military contractors, and so on.

Three important consequences flow from this ubiquitous technology-enabled, data-driven global societal activity. First, the territorial location of data becomes increasingly arbitrary and substantively unimportant. If I, as a U.S. citizen based in …

Emerging Policy And Practice Issues (2018), Steven L. Schooner, David Berteau

GW Law Faculty Publications & Other Works

This paper/chapter, presented at the West Government Contracts Year in Review Conference (covering 2017), attempts to identify the key trends and issues in U.S. federal procurement for 2017. 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. The paper discusses, in addition to a deep dive into the spending data, the surprisingly slow pace of acquisition regulation promulgation, lack of progress with regard to infrastructure, changes to DoD's acquisition leadership and the USD(AT&L) reorganization, the OFPP …

Supreme Court Brief Amicus Curiae Of Administrative Law Scholars In Support Of Neither Party, Richard J. Pierce Jr, Robert L. Glicksman, Emily Hammond, Alan B. Morrison, Jonathan R. Siegel

GW Law Faculty Publications & Other Works

This brief on behalf of 29 administrative law scholars takes no position on whether Administrative Law Judges (ALJs) are employees or inferior officers. It urges the Court to issue an opinion that respects the decision that Congress made unanimously in 1946 to enact numerous statutory safeguards that assure that ALJs have decisional independence from the agencies where they work while assuring that agencies retain control over the policy content and legal basis for any decision made in an adjudication in which an ALJ presides.

The brief describes the fifteen years of study and deliberation that led to the unanimous decision …

Tale Of Three Regulatory Regimes -- Dynamic, Distracted And Dysfunctional: Sweden, The United Kingdom And The United States, Christopher R. Yukins, Andrea Sundstrand, Michael Bowsher Qc

GW Law Faculty Publications & Other Works

It was the best of times, it was the worst of times -- a year marked by genuine progress in public procurement law in some nations, and partial paralysis in others. This article presents the experience of Sweden (as part of the European Union), the United Kingdom (which is slated soon to depart from the EU, via “Brexit”), and the United States (in the first year of the Trump administration). While Sweden and other members of the European Union continue to develop a vital and evolving body of public procurement law, the United Kingdom has been distracted by Brexit, and …

Contract Interpretation 2.0: Not Winner-Take-All But Best-Tool-For-The-Job, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

In a centuries-old debate among contracts scholars, one group supports a presumption favoring a text-centered approach to the interpretation of a writ-ten agreement—the plain meaning taken from the four corners—while oppo-nents urge a broader understanding of context—what the parties intended and the circumstances of their negotiation. The contending positions have so hard-ened that, in a jarring juxtaposition this Essay will reveal, recent academic classifications of the same state laws are exactly opposite to each other: contex-tualists classify certain states as contextualist that textualists say are textualist!

Yet despite the persistence of acute polarization, the author also docu-ments—and applauds—promising trends in …

The Utility And Limits Of Canons Of Construction In Public International Law, Sean D. Murphy

GW Law Faculty Publications & Other Works

This draft chapter, for a volume that considers canons of construction and other interpretive principles in public international law, considers the utility and limits of such canons, drawing in part upon lessons learned from schools of American jurisprudence (formalism, realism, pragmatism) with respect to statutory interpretation. In international law, there are certain obligatory canons of construction that have been expressly incorporated in Articles 31 and 32 of the Vienna Convention on the Law of Treaties. These canons are essential elements of the interpretive process; while in any given context, one or the other of these elements might be favored, they …

Bid Protests: The Rand Study Of Dod Protests At The Gao And The Cofc, Steven L. Schooner

GW Law Faculty Publications & Other Works

This short piece discusses the congressionally mandated study of bid protests of (or disappointed offeror litigation related to) U.S. defense department procurements. It describes the report, which reflects a serious and objective analysis of some frequently polarizing issues: among other things, it describes stakeholder perspectives on the bid protest system, chronicles and analyzes a decade of bid protest volume; provides some supplemental data on discrete aspects of the data set; and offers some thought-provoking recommendations. The essay generally applauds the study effort for dispelling some urban myths; reminding us that - with regard to protests - the devil is in …

False Claims Act: Greater Doj Scrutiny Of Frivolous Qui Tam Actions?, Steven L. Schooner

GW Law Faculty Publications & Other Works

This short piece discusses recent (internal) Justice Department guidance for attorneys handling False Claims (FCA) Act cases. In a dramatic policy and practice shift, the memorandum recommends that “when evaluating a recommendation to decline intervention in a qui tam action, attorneys should also consider whether the government’s interests are served. . .by seeking dismissal pursuant to 31 U.S.C. § 3730(c)(2)(A).” The essay applauds DOJ's apparent acknowledgement that its attorneys have more than a pro forma duty to consider moving to dismiss frivolous qui tam suits.

The essay discusses DOJ's new rubric or menu of factors for deciding whether to dismiss …

Executive Interview: Karen Thornton, Karen Thornton

GW Law Faculty Publications & Other Works

Interview with The George Washington University’s Karen Thornton, director of the Government Procurement Law and Master of Science in Government Contracts programs. This article presents background about the school's mission to educate, develop, and expand the acquisition community. Emphasis is placed on the school's role in generating scholarship and building leadership and professional skills in and out of the traditional classroom.

Copyright 2018, National Contract Management Association. Used with permission.

Private Antitrust At The U.S. International Trade Commission, F. Scott Kieff

GW Law Faculty Publications & Other Works

This paper, drafted as an adjudicator’s opinion in a recent case of nearly first impression, explores an approach to aligning the strengths and opportunities available through the U.S. International Trade Commission (ITC) by considering how more ordinary antitrust issues can be adjudicated through the Section 337 portion of the ITC’s docket. This might be done using existing law. The basic theme is that there are several significant reasons why even a skeptic of the ITC's Anti-dumping, Countervailing Duty, and Safeguards docket (collectively, the "Title VII" docket) – as well as an antitrust skeptic – should be significantly less worried when …

Section 809 And “E-Portal” Proposals, By Cutting Bid Protests In Federal Procurement, Could Breach International Agreements And Raise New Risks Of Corruption, Christopher R. Yukins, Daniel Ramish

GW Law Faculty Publications & Other Works

Bid protests -- vendors’ challenges to contracting officials’ errors, either before or after award -- have been an established part of federal procurement for at least a century. Protests (sometimes called “challenges” or “remedies proceedings” abroad) are a recognized bulwark against corruption in the United States, and have become a standard part of procurement systems around the world, often at the urging of the United States. But new proposals being considered for U.S. government procurement in practice could dramatically limit bid protests, in the name of streamlining the procurement process. This drastic change to U.S. procurement practices could violate international …

Sas Institute Inc. V. Iancu: The Statute Is Hereby Clear, Andrew Michaels

GW Law Faculty Publications & Other Works

The Supreme doorkeeper has spoken: the statute is clear, and that's the law.