Law Commons^™

The Scope Of The Removal Power Is Ripe For Reconsideration, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

This article was requested by The Judges Journal for inclusion in a symposium devoted to the status of administrative law judges. Professor Pierce argues that the scope of the removal power is ripe for review; the Supreme Court should hold that the president must have the power to remove all officers with executive responsibilities at will to allow the president to perform the functions vested in the president by Article II; and the Court should hold that due process requires that officers with purely adjudicative functions must be insulated from potential control by the president by forbidding their removal without …

Contractual Tax Reform, Michael B. Abramowicz, Andrew `Blair-Stanek

GW Law Faculty Publications & Other Works

One-size-fits-all taxation fails to accommodate diverse taxpayer circumstances. This Article proposes allowing taxpayers to contract into alternative tax regimes administered by private intermediaries. Participating taxpayers would make payments to the intermediaries pursuant to contract, and the intermediaries would be required to pay to the government at least as much as these taxpayers would have paid the government otherwise. That amount is determined based on the actual tax receipts of a control group, taxpayers who wish to contract with an intermediary but instead are chosen at random to continue under the status quo. These alternative tax regimes might better accommodate taxpayers’ …

Tax Experimentation, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

Random experiments could allow the government to test tax policies before enactment into general law. Such experiments can be revenue-neutral, with the tax authority ensuring ex post that average tax revenues received from taxpayers in the treatment and control groups are equal. Taxpayers might thus volunteer even for experiments that would broaden the tax base, for example by eliminating deductions. Continued participation by taxpayers in such experiments would indicate that the proposed reforms are efficient at least if externalities are disregarded. Non-revenue-neutral experiments raise greater concerns about horizontal inequity, but may be helpful in addressing questions about effects of tax …

Blockchain-Based Insurance, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

To date, the insurance industry's interest in the blockchain has focused largely on the possibility of recording insurance entitlements in a transparent way. While the blockchain may produce significant efficiencies of this sort, it has considerably greater transformative potential. Smart contracts could serve as a substitute for insurance companies, conventionally conceived. Such contracts could perform the function of deciding whether claims should paid, without the need for or possibility of judicial intervention. The blockchain and smart contracts are difficult to regulate, because ownership and decisionmaking can be decentralized. Blockchain-based insurance may successfully provide a means of avoiding expensive regulation and …

Prize And Reward Alternatives To Intellectual Property, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

This chapter surveys the literature on alternatives to intellectual property, focusing especially on alternatives to patent law, but with some attention as well to copyright. It does not consider the question whether intellectual property rights are justified, but assumes that absent some form of governmental innovation, inventions and works of authorship might be underproduced relative to the social optimum. The chapter thus considers how institutions besides traditional property rights compare relative to one another and to traditional intellectual property systems. The chapter considers only briefly the possibility that government itself might produce inventions and works of authorship or that government …

The Very Brief History Of Decentralized Blockchain Governance, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

An emergent form of blockchain governance involves the use of formal games that give participants incentives to identify focal resolutions to normative questions. This symposium contribution provides a brief survey of the literature proposing and critiquing the use of such mechanisms, and it evaluates early laboratory and real-world experiments with this approach to decentralized decisionmaking.

Dismantling The Trusts And Estates Canon, Naomi R. Cahn

GW Law Faculty Publications & Other Works

This Article steps back and reflects on how new perspectives from gender, race, class, and sexual orientation have challenged existing trusts and estates canonical narratives on a number of different levels, both in terms of deepening trusts and estates but also expanding it—that is, challenging core concepts of the field. Part I celebrates how new perspectives have challenged the core trusts and estates canonical narratives. These new perspectives challenge basic concepts of wealth and do the following: 1) bring in alternative conceptions of wealth and of inheritance; 2) question the biases of inheritance law as they reflect conventional social norms; …

Originalism And Structural Argument, Thomas Colby

GW Law Faculty Publications & Other Works

The "new originalism" is all about the text of the Constitution. Originalists insist that the whole point of originalism is to respect and follow the original meaning of the text, and that originalism derives its legitimacy from its unwavering focus on the text alone as the sole basis of higher law. And yet, many leading Supreme Court decisions in matters of great importance to conservatives—in opinions authored and joined by originalist judges, and often praised by originalist scholars—are seemingly not grounded in the constitutional text at all. They rest instead on abstract structural argument: on freestanding principles of federalism and …

Can Global Legal Pluralism Be Both "Global" And "Pluralist"?, Paul Schiff Berman

GW Law Faculty Publications & Other Works

The scholarly project of global legal pluralism seems to contain a conundrum at its core. How can any theory of law be focused on pluralism and multiplicity and at the same time claim to be a “global” theory? This conundrum helps explain the criticism global legal pluralism receives from committed pluralists on the one hand and from committed international law triumphalists on the other. The pluralists argue that the normative side of global legal pluralism, by emphasizing procedures and institutions that foster dialogue and interaction, is essentially recapitulating

a universalist liberal legality and therefore is not fundamentally pluralist at all. …

Grading Trump's China Trade Strategy, Steve Charnovitz

GW Law Faculty Publications & Other Works

Although much has been written about the ongoing trade war between China and the United States from 2017 to early 2019, this literature omits detailed examination of the substance of the US trade complaints about China. This article seeks to fill that gap in the literature by unpacking the 20 most prominent complaints that are being levelled by the Trump Administration. The article finds that half of the complaints involve behaviour that is contrary to WTO rules and yet the Trump Administration has lodged only three WTO cases against that behaviour. The Trump Administration justifies this omission on the ground …

The Marketplace Of Ideas Online, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

One hundred years ago, in the 1919 case of Abrams v. United States, Justice Oliver Wendell Holmes, Jr. ushered into existence modern First Amendment jurisprudence by introducing the free trade in ideas model of free speech. According to this model, the ultimate good is reached by allowing speakers to engage in the free trade in ideas—free of government intervention in the way of regulation, censorship, or punishment. Ideas must be allowed to compete freely in an unregulated market, and the best ideas will ultimately get accepted by competing with others in this marketplace. As such, government intervention is unnecessary …

Why Is Mississippi The Best State In Which To Be Exonerated? An Empirical Evaluation Of State Statutory And Civil Compensation For The Wrongfully Convicted, Jeffrey Gutman, Lingxiao Sun

GW Law Faculty Publications & Other Works

Wrongful conviction has for decades been a subject of academic study, litigation, and policy reform, but its more recent reach into popular culture is reflected in an array of books, documentaries, podcasts, movies, and TV shows. In both non-fiction and fiction, the theme of wrongful conviction marries a traditionally American revulsion of profound injustice with the captivation of the police procedural, dirty cops, forensic evidence, and the relentless fortitude of incarcerated innocents and their heroic lawyers.

The innocence movement lies at this intersection between law and popular imagination. As the attendance at the 2018 Innocence Network Conference attests, the energy …

Suspension And Debarment In The U.S. Government: Comparative Lessons For The Eu’S Next Steps In Procurement, Christopher R. Yukins, Michal Kania

GW Law Faculty Publications & Other Works

Governments may exclude vendors from procurement awards for many reasons, including poor performance and corruption. Excluding a vendor, whether from a particular procurement (deciding that the vendor is not qualified for award) or from an entire procurement system (suspending or debarring the vendor), calls for a complex assessment of the performance and reputational risks posed by that vendor, and of the costs of exclusion. As the EU’s Member States shape their exclusion systems consistent with the EU’s procurement directives, the Member States may wish to draw on U.S. strategies for managing risks in contractor qualification: requiring that contractors establish strong …

A Realistic Version Of Campaign Finance Reform And Two Essential Steps Toward A Return To Effective Governance, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

This essay is a contribution to a symposium on "The Administration of Democracy." Professor Pierce argues in support of a system of campaign finance reform that would eliminate all limits on contributions to candidates and require all candidate campaigns and PACs to report promply all contributions. He argues that such a system would respect freedom of speech, reduce the amount of irresponsible negative advertising and allow the members of the public to decide whether they want to vote for a candidate who accepts money from sources they dislike or distrust. Professor Pierce also urges major changes to our methods of …

§ 8:91 Public Records—Forensic Laboratory Reports, Christopher B. Mueller, Laird Kirkpatrick

GW Law Faculty Publications & Other Works

This article discusses the admissibility of forensic reports under Federal Rule of Evidence 803(8) and under the Confrontation Clause of the Sixth Amendment of the Constitution. It analyzes whether they are "testimonial" for the purpose of the Crawford doctrine and when the analyst must be produced to be cross-examined. It also discusses who from the forensic laboratory must be called to admit a forensic report. It discusses the constitutional requirements set forth in Crawford v. Washington, Bullcoming v. New Mexico, and Williams v. Illinois.

Can A Sitting President Be Federally Prosecuted? The Founders' Answer, W. Burlette Carter

GW Law Faculty Publications & Other Works

Can a sitting U.S. President be federally indicted or prosecuted? Exploring the history of impeachment and prosecution in (1) England and Great Britain, (2) colonial America, and (3) the states immediately after independence--and comparing these to the Founders' Constitutional discussions--this article considers how the Founders would have answered that question, were it posed to them today. Deviating from most analyses of the problem, it argues that the Founders would have viewed the question as jurisdictional, involving a conflict between Courts of Law on the one hand, and the Congress -- operating as a High Grand Jury (the House) and a …

Sham Marriage And Privilege, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

United States v. Fomichev, 899 F.3d 766 (9th Cir. 2018), discusses the effect that a sham marriage has on marital privileges. The court draws a line between the spousal immunity (or spousal witness) privilege and the marital communications privilege.

Environmental Protection Services And Salvage Law : Emerging Issues In Perspective, Huiru Liu

World Maritime University Ph.D. Dissertations

This dissertation primarily concerns the law and practice of salvage focusing on its environmental dimension which started to evolve since the Torrey Canyon disaster in 1967, which until that time, was the biggest oil spill in maritime history. In the contemporary era of shipping, a major part of salvorial operations has shifted from property preservation to environmental protection. This dissertation centers on the services provided by salvors to prevent or mitigate damage to the environment. This phenomenon is generally referred to as "environmental salvage" which, it is submitted, is an anomaly and a misnomer. It is therefore proposed that the …

The Soft Power Of Dissent: The Impact Of Dissenting Opinions From The Russian Constitutional Court, Alexandra V. Orlova

Vanderbilt Journal of Transnational Law

This Article poses a question regarding the importance of judicial dissents emanating from constitutional courts. It examines the power of dissents emanating from the Russian Constitutional Court, given the fact that the Russian government has invested a significant effort in suppressing dissenting voices. The very presence of dissents in the Russian Constitutional Court poses an interesting question regarding their impact on democracy, consensus building, and civil society. This Article argues that while dissents coming from the Russian Constitutional Court may not be binding, they carry a great deal of "soft power." Judicial dissents aid in challenging commonly espoused consensus both …

Using The Wto To Facilitate The Paris Agreement: A Tripartite Approach, Antonia Eliason

Vanderbilt Journal of Transnational Law

Climate change is the greatest threat humanity has faced, and its challenges can only be addressed through multilateral means. Lacking in accountability and enforcement mechanisms, however, the Paris Agreement requires additional support to achieve its full effect. Although not perfectly aligned with the goals of the Paris Agreement, the WTO's multilateral framework could provide the necessary flexibilities to work toward meeting the Paris Agreement's targets. This Article proposes a novel three-pronged approach for refocusing the multilateral trading system and facilitating the Paris Agreement.

First, the preamble to the Agreement Establishing the World Trade Organization explicitly recognizes sustainable development as a …

Do Human Rights Treaties Matter: The Case For The United Nations Convention On The Rights Of People With Disabilities, Arlene S. Kanter

Vanderbilt Journal of Transnational Law

In the United States, and throughout many other parts of the world, we are witnessing attacks on basic human rights. As poverty, inequality, and suffering are evident in so many parts of the world today, there are those who say that the entire human rights regime has failed. This author does not agree. While it is true that human rights treaties have not realized their full potential in every country that has ratified them, human rights treaties do "matter." This Article makes the case for human rights treaties by referring to the success of the Convention on the Rights of …

Regulating Corruption In Intercountry Adoption, Jordan Bunn

Vanderbilt Journal of Transnational Law

The current regulatory system for intercountry adoption has failed parents, children, and governments. Impoverished parents and children have been exploited by crooked adoption agencies, orphanage directors, and bureaucrats looking to profit from well-meaning prospective parents who will pay significant fees in order to adopt. While the 1993 Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption lays a good foundation for catching and eliminating this corruption, it has not been fully implemented in many developing countries that lack the necessary resources and infrastructure. Some critics want to give up on or significantly modify the Hague …

Artificial Islands And Territory In International Law, Imogen Saunders

Vanderbilt Journal of Transnational Law

Artificially created islands are a contemporary reality, created and used for military and nonmilitary purposes. Analysis of such islands has largely been limited to their status under the United Nations Convention on the Law of the Sea (UNCLOS) regime. Their position under general international law, however, remains unclear. In particular, the question of whether artificial islands can constitute sovereign territory remains unanswered. This Article analyzes the concept of territory in international law in the context of artificial islands, and argues that neither the doctrine of territory nor the strictures of UNCLOS prevent artificial islands from constituting territory capable of sovereign …

Climate Change Refugees In The Time Of Sinking Islands, Jane Steffens

Vanderbilt Journal of Transnational Law

While environmental migration is not a new phenomenon, the international community has been slow to react to a wildly increasing number of people displaced by climate-related factors. With the current scenario of sinking islands, rapid urbanization, and drought, the international community seems to be on the precipice of a massive humanitarian catastrophe. Even so, lawmakers appear hesitant to fill in the gaps of existing international law, leaving an entire category of people vulnerable and unprotected against the effects of climate change. Private climate-governance initiatives can achieve large-scale, prompt, and efficient solutions to climate-induced migration. While private governance initiatives lack the …

Charney Lecture: The Rule Of Law In International Security Affairs: A U.S. Defense Department Perspective, Paul C. Ney, Jr.

Vanderbilt Journal of Transnational Law

Thank you very much for inviting me here today. I am especially grateful to Dean Chris Guthrie, Professor Mike Newton, and Mrs. Sharon Charney, who generously endowed this lecture series in memory of her late husband, Professor Jonathan Charney. Thank you, as well, to all the members of the Charney family for sharing him with the Vanderbilt community. Professor Charney taught at Vanderbilt for forty years and was one of the nation's preeminent scholars and practitioners of international law. He was a member of the U.S. delegation to the Third United Nations Conference on the Law of the Sea, which …

Transitional Justice In Housing Injustice: The Case Of Housing Rights Violations Within Settler Democracies, Manal Totry-Jubran

Vanderbilt Journal of Transnational Law

The right to housing is recognized by international human rights treaties as an integral part of the right to an adequate standard of living. Many states have ratified these treaties and incorporated protection of some aspects of housing rights into their constitutions and domestic legislation. Other states have not enacted any legislation in recognition of housing rights, but they provide judicial remedies for violations of rights. Despite that, domestic and international reports indicate that housing rights are constantly being violated in countries across the world at different levels.

This Article focuses on housing rights violations within "settler democracies." Such countries …

International Investment And National Security Review, Ji Ma

Vanderbilt Journal of Transnational Law

National security is a pillar of international law. As long as sovereign states exert power within the international legal regime, national security will be an exception to international law. These security concerns also come to light in the international investment legal regime. The international investment legal regime provides for essential security exceptions, aiming at protecting host states' interests. This practice has been honored by international investment treaties and international investment tribunals. Although such exemption provisions can balance the interests between international investors and host states, they might be abused by host states in virtue of rising protectionism.

Today, with respect …

Us And Eu Efforts To Combat International Money Laundering In The Art Market Are No Masterpiece, Timothy E. Burroughs

Vanderbilt Journal of Transnational Law

Despite the lack of significant, tangible evidence of money laundering through fine art and antiquities dealers, the EU recently passed the Fifth Anti-Money Laundering Directive adding art dealers to the list of businesses obligated to comply with record keeping and due diligence requirements. Shortly thereafter, a similar measure was proposed in the U.S. House of Representatives. However, one-size-fits-all unilateral regulations will fail to protect the fine art and antiquities industry and will place crippling burdens on many art market participants. Instead, soft law agreements, used for most international finance regulation, should be the main tool to establish international standards. This …

The Consumer Imaginary: Labor Rights, Human Rights, And Citizen-Consumers In The Global Supply Chain, Kevin Kolben

Vanderbilt Journal of Transnational Law

Consumers are increasingly demanding that the goods and services they consume be produced in a way that meets their social expectations. By extension, they are exhibiting greater willingness to pay more at the cash register for products made in good working conditions, and they are willing to punish companies that do not satisfy these expectations. Driving these "citizen-consumers" is what this Article terms the "consumer imaginary," which is defined as the narratives that consumers tell themselves about the people that make their things--people whom consumers will likely never meet, and whose lived experiences are distant from their own. Policymakers have …

Emerging Market Economies And International Investment Law: Turkey-Africa Bilateral Investment Treaties, Uche E. Ofodile

Vanderbilt Journal of Transnational Law

This Article offers a critical and penetrating insight into the bilateral investment treaties (BITs) between Turkey and countries in Africa. Since 2003, Turkey has concluded BITs with twenty-eight countries in Africa. This Article seeks answers to some very important questions. In the BITs between Turkey and countries in Africa, is Turkey merely conforming to the norms and standards established by Western countries, or is Turkey changing these norms in fundamental ways? Compared to BITs between Western nations and countries in Africa, are Turkey-Africa BITs more oriented towards sustainable development and, if so, in what respects? In what ways are emerging …