Law Commons^™

Studying The “New” Civil Judges, Jessica K. Steinberg, Anne E. Carpenter, Colleen Shanahan, Alyx Mark

GW Law Faculty Publications & Other Works

We know very little about the people and institutions that make up the bulk of the United States civil justice system: state judges and state courts. Our understanding of civil justice is based primarily on federal litigation and the decisions of appellate judges. Staggeringly little legal scholarship focuses on state courts and judges. We simply do not know what most judges are doing in their day-to-day courtroom roles or in their roles as institutional actors and managers of civil justice infrastructure. We know little about the factors that shape and influence judicial practices, let alone the consequences of those practices …

The Fourth Year Of Forgetting: The Troubling Expansion Of The Right To Be Forgotten, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

In its famous "right to be forgotten" decision, the Court of Justice of the European Union ruled in 2014 that search engine operators must, upon request from a data subject, remove links that result from searches for an individual’s name when those results are “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes… carried out by the operator of the search engine.” The initial implementation of the right to be forgotten was limited in several ways. First, it was limited in geographical scope to European domains of search engines. Google—the primary search engine affected by the …

A Theory Of Civil Problem-Solving Courts, Jessica K. Steinberg

GW Law Faculty Publications & Other Works

This article is the first to develop a problem-solving theory for the civil justice system. Drug courts pioneered the problem-solving model in the 1990s to pursue therapeutic goals as an alternative to “assembly line” sentencing. This Article explores the potential for migration of the drug court framework into the two most commonly adjudicated civil cases: rental housing and consumer debt.

Three structural conditions in the civil courts—high-volume dockets, systemic lack of counsel, and corporate capture of the small claims process—routinely position vulnerable classes of individuals on the losing end of litigation. In the aggregate, these conditions have rendered the civil …

Should The Court Change The Scope Of The Removal Power?, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

In this essay Professor Pierce argues that the Court should use a strict functional approach in its ongoing process of changing the scope of the power of the president to remove officers. He maintains that the Court can reconcile the potentially conflicting commands of Article II and due process by holding that the president must have unlimited power to remove any officer who can make policy decisions on behalf of the government, but that due process limits the power of the president to remove an officer whose sole responsibility is to adjudicate disputes between private parties and the government.

The World Bank's Procurement Framework: An Assessment Of Aid Effectiveness, Christopher R. Yukins, Sope Williams-Elegbe

GW Law Faculty Publications & Other Works

In 2016, the World Bank formally implemented a massive reform of the guidance it applies to procurements conducted under World Bank-financed projects. Because of the prominent role that the World Bank plays in shaping procurement policy, the Bank’s procurement reforms have had a profound impact on procurement in many countries around the world. This piece, a draft chapter in the forthcoming Public Procurement and Aid Effectiveness: A Roadmap Under Construction (Annamaria La Chimia & Peter Trepte, eds., Hart Publishing 2018), reviews the World Bank's Procurement Framework, including its approaches to procurement methods, bid challenges (complaints), country-system procurement, capacity-building and oversight. …

Indefinite-Delivery/Indefinite-Quantity Contracts: Time To Correlate Practice And Policy?, Steven L. Schooner

GW Law Faculty Publications & Other Works

This short piece discusses recent Government Accountability Office (GAO) data chronicling an increase in the Defense Department's reliance on indefinite-delivery/indefinite-quantity (or IDIQ) contracts. The data also indicates that, despite the clearly established preference for multiple awards, about three-quarters of the IDIQ awards made by DoD were to a single contractor, rather than multiple contractors.

Based on GAO's data, the essay describes the dramatic difference between current IDIQ practice and the process described in the the regulations, including the Federal Acquisition Regulation (FAR) and the supplemental regulations promulgated by DoD (including the DFARS and the PGI).

The essay concludes with two …

Law School Clinics And The Untapped Potential Of The Court Watch, Jessica K. Steinberg

GW Law Faculty Publications & Other Works

This is a time of enormous creativity and innovation in civil access to justice. It is now widely recognized that scarcity is reality in the provision of legal services and that overburdened and technologically retrograde courts are struggling to meet the demands of case processing in a fair and efficient manner. Accompanying the proliferation of various interventions is a growing call for empirical research on civil access to justice. Recently, the idea that law school clinics might serve as sites or architects of a civil justice research agenda has been advanced.

Building on these proposals, this Article suggests that “court …

The Other Half Of The Abortion Right, Thomas Colby

GW Law Faculty Publications & Other Works

Planned Parenthood v. Casey’s undue burden test provides that an abortion regulation will be unconstitutional if it has “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Although Casey phrased the inquiry as a disjunctive two-pronged test—purpose or effect—courts and commentators alike have essentially ignored half of the test—the purpose prong—altogether. This is perhaps not surprising, given that Casey’s discussion of wrongful purpose was both cursory and seemingly incoherent.

Commentators have long been mystified by the fact that Casey simultaneously precludes the states from enacting a law …

§4.35 Evidence Of Similar Offenses In Sexual Assault And Child Molestation Cases, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the admissibility of evidence of prior similar offenses in sexual assault and child molestation cases under FRE 413 and 414. It discusses the purposes for which such evidence may be offered, the balancing required under FRE 403, and the roles of judge and jury.

§4.23 Subsequent Remedial Measures Generally Excluded, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

Mueller, Christopher B. and Kirkpatrick, Laird C. and Richter, Liesa, §4.23 Subsequent Remedial Measures Generally Excluded (2018). C. Mueller, L. Kirkpatrick, & L. Richter, Evidence §4.23 (6th ed. Wolters Kluwer 2018); GWU Law School Public Law Research Paper No. 2018-57; GWU Legal Studies Research Paper No. 2018-57. Available at SSRN: https://ssrn.com/abstract=3275024

§4.15 Prior Wrongs To Prove Specific Points, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the admissibility of prior bad acts or wrongs to prove specific points such as intent, knowledge, plan, or absence of mistake. It analyzes FRE 404(b) and its limits and the standard of proof required.

§4.10 Unfair Prejudice, Confusion, Delay, Collateral, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the exclusion of evidence under FRE 403 for unfair prejudice and the other grounds of exclusion listed in the rule such as confusion, delay, misleading the jury, and being cumulative.

§3.8 Hard Cases Where Counterproof Is Sufficient But Not Conclusive, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the competing views of how presumptions operate when evidence is offered challenging the presumed fact. It discusses both the approach of FRE 301 as well as the approach adopted by the Uniform Rules of Evidence.

§1.7 Evidence Errors—Harmless, Christopher B. Mueller, Laird Kirkpatrick, Lisea Richter

GW Law Faculty Publications & Other Works

This article discusses when evidentiary error is harmless. It addresses the Kotteakos guidelines and the competing standards set forth by courts. It also addresses the several ways by which evidentiary error may be cured at trial.

§1.5 Offers Of Proof, Christopher B. Mueller, Laird Kirkpatrick, Lisea Richter

GW Law Faculty Publications & Other Works

This article discusses when offers of proof are required and the different methods by which they may be made. It discusses the requirement that they be made outside the jury’s presence and that repeating offers are often unnecessary.

§8.85 The Davis “Emergency Exception”, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the “emergency exception” to the Crawford doctrine which allows out-of-court statements to be admitted against a criminal defendant when the “primary purpose” of making such statements was to enable a response to an “ongoing emergency.” It discusses the facts of Davis v. Washington which created the exception and subsequent cases determining the scope of the exception, including the Bryant and Clark cases.

§8.84 “Testimonial” Hearsay —Reach And Limits Of The Crawford Doctrine, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the definition and scope of “testimonial” hearsay under the Crawford doctrine. It discusses the four factors that are most likely to qualify an out-of-court statement as testimonial hearsay under the Sixth Amendment. In addition to discussing the facts and holding of Crawford, it discusses the subsequent cases interpreting that opinion.

§6.31 Excluding Felonies For Unfair Prejudice, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the scope of impeachment under 609(a)(1) which allows impeachment of witnesses by prior felony convictions subject to a balancing test. It discusses the different standards of balancing for ordinary witnesses as compared to criminal defendants and the factors that should be considered in such balancing.

§6.11 Juror Testimony And Affidavits Barred, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the impeachment of jury verdicts under FRE 606(b). Such impeachment is generally barred based on juror testimony or affidavits. However, there are three primary exceptions where jury testimony is allowed. The article discusses the key Supreme Court cases of Tanner and Pena-Rodriguez. In the latter case, the Court held for the first time that the Sixth Amendment entitles a convicted defendant to show that the jury relied on “racial stereotypes or animus to convict.”

§5.32 Marital Confidences Privilege, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the marital confidences privilege. This privilege applies to confidential communications by spouses made during the course of their marriage. The privilege continues even after the termination of the marriage. The privilege protects communications only, but includes conduct that is communicative in nature. Under the prevailing view, both spouses hold the confidences privilege.

§5.31 Spousal Testimonial Privilege, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the spousal testimonial privilege. It discusses the rationale and history of the privilege as well as its current requirements. The privilege allows a spouse to refuse to testify against the other spouse in a criminal proceeding, but does not allow a criminal defendant to block the testimony by his or her spouse if the testifying spouse chooses to waive the privilege. The privilege requires a lawful marriage and does not apply to sham marriages.

§5.28 Waiver By Voluntary Disclosure, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses waiver of the attorney-client privilege by voluntary disclosure. The central requirements of such waiver are that it be voluntary and disclose a “significant part” of the privileged communication. Selective disclosure to particular individuals or entities will generally waive the privilege as to all. However, disclosure to another person within a privilege will not result in waiver. The article concludes by discussing the effect of agreements between attorneys about waiver and pretrial orders by courts under FRE 502.

§5.22 Crime-Fraud Exception, Christopher B. Mueller, Laird Kirkpatrick, Liesa Richter

GW Law Faculty Publications & Other Works

This article addresses the crime-fraud exception to the attorney-client privilege. It discusses the two-part test recognized by most courts. It also discusses the difficult issues of determining the intent of the client in consulting the lawyer and the line between past and ongoing criminal conduct. It concludes by addressing the proof necessary to claim the crime-fraud exception.

Anniversary Commemoration And Work Of The International Law Commission’S Seventieth Session, Sean D. Murphy

GW Law Faculty Publications & Other Works

This essay analyzes the outcome of the seventieth session of the U.N. International Law Commission held in the summer of 2018 in New York and Geneva. Notably, the Commission completed on second reading two topics: subsequent agreements and subsequent practice in relation to the interpretation of treaties; and identification of customary international law. The Commission completed on first reading two further topics: protection of the atmosphere; and provisional application of treaties. Progress was also made in developing draft conclusions on peremptory norms of general international law (jus cogens), draft principles on protection of the environment in relation to armed conflict, …

Unbundling Populism, David Fontana

GW Law Faculty Publications & Other Works

Populism is having its moment on our constitutional center stage, but the way we are treating this moment is adding to the risks that populism poses to our liberal democratic constitutional order. Populism has primarily been defined in our public discussions by the loudest self-identifying populists active in democratic politics at the moment. Populism has therefore often been treated as a bundled-together concept, merging not just anti-establishment sentiments, but also authoritarian and xenophobic ones as well. Populism is an eight-letter word that is then treated like a pejorative four-letter one. Populism, though, is a they, and not an it. The …

Global Legal Pluralism As A Normative Project, Paul Schiff Berman

GW Law Faculty Publications & Other Works

Legal pluralists have long recognized that societies consist of such multiple overlapping normativecommunities. These communities are sometimes state based but sometimes not, and they are sometimes formal, official, and governmental, but again sometimes they are not. Scholars studying interactions among these multiple communities have often used the term “legal pluralism” to describe the inevitable intermingling of these normative systems.

In recent decades, a new application of pluralist insights has emerged in the international and transnational realm. This new legal pluralism research was born in the decades following the collapse of the bipolar Cold War order in 1989. During this period, …

Obligations Of States In Disputed Areas Of The Continental Shelf, Sean D. Murphy

GW Law Faculty Publications & Other Works

Normally, a coastal State has sovereign rights to explore and exploit the natural resources of the continental shelf appurtenant to its territory. In some situations, however, States have overlapping claims as to their continental shelves, which raises important issues as to how such States must conduct themselves prior to resolution of their dispute. This chapter advances eight basic rules that every State is expected to follow in such a situation. Inevitably, such rules are general in nature and will have variable effects when applied in context. Nevertheless, it is submitted that such rules provide importance guidance to States in upholding …

How American Rejectionism Undermines International Economic Law, Steve Charnovitz

GW Law Faculty Publications & Other Works

The completion of the Trump Administration’s first two years is an appropriate moment to take stock of the United States of America’s aggressive international economic policies. The Trump Administration is carrying out a new form of American rejectionism powered by four horsemen of economic instability: first, the rejection of the international rule of law; second, the rejection of open markets; third, the rejection of economic peace in favour of perpetual economic war; and fourth, the rejection of the global interest. The analysis herein shows how these four rejectionist policies are harming the United States, other countries, and the global order. …

Cost-Plus Patent Damages, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

This Article assesses recent proposals to use risk-adjusted costs of producing an invention as a basis for either setting patent damages or valuing patents taken by eminent domain. In theory, cost-plus damages can address one of the central challenges of patent law: ensuring that a patentee does not obtain excessive rents for an invention. But cost-plus damages have three principal problems. First, risk may be difficult to estimate, and estimates may be infected by hindsight. Second, if the permitted rate of return is too low, there may be insufficient incentives to invent.

Indeed, even a rate of return that seems …

Bifurcating Settlements, Michael B. Abramowicz, Sarah Abramowicz

GW Law Faculty Publications & Other Works

In settling a lawsuit, parties agree on their obligations to one another, but they need not separately address each issue, claim, or remedy that a trial court would have confronted. The legal system, however, can bifurcate the settle-ment process, requiring separate resolution of components of a settlement. Bi-furcation can protect third parties, for example, by preventing divorcing parents from trading child custody for money. In addition to identifying a wide range of contexts in which preventing trade-offs may be desirable, this Article shows that bifurcation will generally have only modest (and sometimes beneficial) effects on settlement rates.