Law Commons^™

Emerging Policy And Practice Issues (2020), Steven L. Schooner, David J. Berteau

GW Law Faculty Publications & Other Works

This paper/chapter, presented at the Thomson Reuters Government Contracts Year in Review Conference (covering 2020), attempts to identify the key evolving trends and issues in U.S. federal procurement for 2020-2021 and beyond. Consistent with prior practice, this chapter offers extensive coverage of the federal procurement (and grant) and defense spending trends and attempts to predict what lies ahead, particularly with regard to legislative and executive activity. This year's paper discusses, among other things, special emergency procurement authorities deployed during the coronavirus pandemic, the high degree of uncertainty currently being experienced in the public procurement sphere as the Biden administration begins, …

Assessing The Trade Agenda For Government Procurement In The Biden Administration, Christopher R. Yukins

GW Law Faculty Publications & Other Works

This paper, prepared shortly before President Joe Biden was inaugurated, discussed key trade issues for the incoming administration in public procurement. The piece reviewed major trade measures in procurement taken during the Trump administration – most of which were predictable from the time Trump was elected. The paper turned to the major trade challenges that faced the Biden administration, in areas as diverse as climate change, cybersecurity and the protectionism in post-Brexit Europe, and then assessed how the Biden administration might address these challenges, especially given Joe Biden’s support for “Buy American” policies during the 2020 campaign. The paper also …

Privacy Harms, Daniel J. Solove, Danielle Keats Citron

GW Law Faculty Publications & Other Works

Privacy harms have become one of the largest impediments in privacy law enforcement. In most tort and contract cases, plaintiffs must establish that they have been harmed. Even when legislation does not require it, courts have taken it upon themselves to add a harm element. Harm is also a requirement to establish standing in federal court. In Spokeo v. Robins, the U.S. Supreme Court has held that courts can override Congress’s judgments about what harm should be cognizable and dismiss cases brought for privacy statute violations.

The caselaw is an inconsistent, incoherent jumble, with no guiding principles. Countless privacy violations …

The Expanding Labor Dimension Of Us-Negotiated Regional Trade Agreements: Tpp And Usmca, Steve Charnovitz

GW Law Faculty Publications & Other Works

During the past several years, the US government has negotiated two regional trade agreements with far reaching labor provisions — the Trans-Pacific Partnership (TPP) and the United States-Mexico-Canada Agreement (USMCA). Signed in early 2016, the TPP labor chapter enhances second-generation worker rights in several significant ways: First, the TPP obligates each party to "adopt and maintain" statutes, regulations, and practices governing acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health, as determined by that party. Second, the obligation not to waive or derogate from fundamental labor rights or conditions of work is …

The Government Contracts Reference Book: A Comprehensive Guide To The Language Of Procurement, Ralph C. Nash, Steven L. Schooner, Karen R. O'Brien-Debakey, Vernon J. Edwards

GW Law Faculty Publications & Other Works

This book - first published in 1992 and now in its fifth edition - is intended to offer concise, comprehensive information to the practitioner of the art of government contracting. Looking up a key term, the reader can find a definition, followed by a summary of where the term is used in the statutes or regulations dealing with the procurement process. The book also includes references to literature where the term is more fully discussed. The book is not designed as a standalone encyclopedia: it is a first reference, pointing the user to additional sources as needed. The book makes …

Judges In Lawyerless Courts, Anna E. Carpenter, Colleen F. Shanahan, Jessica Steinberg, Alyx Mark

GW Law Faculty Publications & Other Works

The typical American civil trial court is lawyerless. In response to the challenge of pro se litigation, scholars, advocates, judges, and courts have embraced a key solution: reforming the judge’s traditional role. The prevailing vision calls on trial judges to set aside traditional judicial passivity, simplify court procedures, and offer a range of assistance and accommodation to people without counsel.

Despite widespread support for judicial role reform, we know little of whether and how judges are implementing pro se assistance recommendations. Our lack of knowledge stands in stark contrast to the responsibility civil trial judges bear – and the power …

The Supreme Court Should Eliminate Its Lawless Shadow Docket, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

Over the last six years, the Supreme Court has adopted a regular practice of making many of its most important decisions without giving any reasons for those decisions. The Court's justification for this practice is the temporary nature of the effects of the many decisions in which it stays or declines to stay a major government action. Many of those decisions have enormous long-term effects, however. In many cases, they are the only decision the Court will ever make with respect to an important government action.

In this essay, Professor Pierce describes and explains the extraordinary growth of the Court's …

Breaking Down The Silos That Harm Children: A Call To Child Welfare, Domestic Violence And Family Court Professionals, Joan S. Meier, Vivek Sankaran

GW Law Faculty Publications & Other Works

The intersection of domestic violence and child maltreatment has been the subject of research and reform efforts focused on the need to integrate a better understanding of domestic violence into child welfare system practice. But a similar effort at integration of domestic violence and child maltreatment concerns has never been directed at family courts adjudicating private custody litigation. And while such courts’ responses to domestic violence have been analyzed and discussed extensively in the literature, legal discussions of custody courts’ responses to child maltreatment are few and far between. At the same time, there has been an explosion of traumatic …

The Varieties Of Counterspeech And Censorship On Social Media, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

The year 2020 was without a doubt a remarkable and unprecedented one, on many accounts and for many reasons. Among other reasons, it was a year in which the major social media platforms extensively experimented with the adoption of a variety of new tools and practices to address grave problems resulting from harmful speech on their platforms — notably, the vast amounts of misinformation associated with the COVID-19 pandemic and with the 2020 presidential election and its aftermath. By and large — consistent with First Amendment values of combatting bad speech with good speech — the platforms sought to respond …

Habeas, History, And Hermeneutics, Jonathan R. Siegel

GW Law Faculty Publications & Other Works

Supreme Court Justices Clarence Thomas and Neil Gorsuch recently proposed a radical shrinking of federal habeas corpus relief for state prisoners who are in custody pursuant to a final judgment of criminal conviction. They called for a return to the supposedly traditional principle that federal courts cannot grant habeas relief to such prisoners unless the state court that sentenced them lacked jurisdiction. This Article explains that (1) this supposedly traditional principle was not, in fact, a traditional principle of habeas, and (2) even if it were, Congress has displaced it by statute. Exploring the errors in the Justices’ arguments provides …

Adaptive Management And Nepa: How To Reconcile Predictive Assessment In The Face Of Uncertainty With Natural Resource Management Flexibility And Success, Robert L. Glicksman, Jarryd Page

GW Law Faculty Publications & Other Works

For years, public lands scholars lamented the limited success that federal agencies had in applying adaptive management decisionmaking processes in pursuit of their natural resource management responsibilities. Agency duties to comply with the National Environmental Policy Act (NEPA) have played a role in creating a disconnect between the theory and application of adaptive management. NEPA was designed to force agencies to predict (and consider ways to avoid) the adverse environmental impacts of actions before committing to them. Adaptive management is built on the premise that, at least in conditions of uncertainty such as those that often characterize natural resource management, …

The Pandemic Crisis Shows That The World Remains Trapped In A 'Global Doom Loop' Of Financial Instability, Rising Debt Levels, And Escalating Bailouts, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

In January 2020, I completed a book (Taming the Megabanks: Why We Need a New Glass- Steagall Act) analyzing the financial crises that precipitated the Great Depression of the 1930s and the recent Great Recession. My book argued that the world’s financial system was caught in a “global doom loop” at the beginning of 2020. Bailouts and economic stimulus programs during and after the global financial crisis of 2007-09 (GFC) had imposed heavy debt burdens on most governments, and leading central banks were carrying bloated balance sheets. The rescues arranged by governments and central banks during the GFC created a …

Tax Incentives And Sub-Saharan Africa, Karen B. Brown

GW Law Faculty Publications & Other Works

The OECD’s Base Erosion Profit Shifting (BEPS) project has taken a powerful and welcome look at many of the tax avoidance strategies that proliferate in a world where multinational enterprises are in the business of exploiting gaps in the tax laws of different countries to minimize their ultimate tax bills. The focus on international consensus and prescriptions for reform has not been an unqualified good for the nations in Sub-Saharan Africa, which find themselves in the position of reacting to standards and taking on compliance burdens set without sufficient consideration of their special circumstances. Because the path for the BEPS …

Can The Federal Trade Commission Use Rulemaking To Change Antitrust Law?, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

Lina Khan, the new Chair of the FTC, proposes to use notice and comment rulemaking to make major changes in antitrust law by declaring many practices to be “unfair methods of competition” within the meaning of that term in section five of the FTC Act. She has the strong backing of President Biden and her Democrat colleagues. That raises two questions. Does the FTC have the power to use the notice and comment process to implement Section five? If it has that power, can it use the rulemaking process to make the major changes in antitrust law that Chair Khan …

The Resilience Of Substantive Rights And The False Hope Of Procedural Rights: The Case Of The Second Amendment And The Seventh Amendment, Renée Lettow Lerner

GW Law Faculty Publications & Other Works

At first glance, there seem to be strong affinities between the Second Amendment and the Seventh Amendment. Both the right to keep and bear arms and the right to civil jury trial potentially empower ordinary citizens. Both could check elites.

But there are crucial differences between these rights. I focus on two of them here. The first is relatively straightforward; it concerns individual accountability—or the lack thereof—and the ability to understand responsibilities. Gun owners and users generally have individual responsibility for their actions, and the ability to understand their responsibilities. In contrast, by design civil jurors lack individual responsibility. And …

Foster Care And The Growing Tension Between The Religion Clauses: A Comment On Rogers V. Hhs, Robert W. Tuttle

GW Law Faculty Publications & Other Works

In 2018, the U.S. Department of Health & Human Services and the State of South Carolina agreed to waive their requirements of religious non-discrimination by state-funded, licensed child placement agencies. The state had discovered that its largest provider, Miracle Hill, approved the applications of only those who shared its Evangelical Protestant faith. Eden Rogers and Brandy Welch, a Unitarian, married same-sex couple, applied to Miracle Hill to be certified as foster parents. After Miracle Hill refused on religious grounds to assess the couple’s fitness, the couple filed suit against various federal and state defendants, alleging that the waivers constituted an …

Civil Procedure: The Zooming Of Federal Civil Litigation, Scott Dodson

The Judges' Book

No abstract provided.

Constitutional Law: Blockchain’S Challenge For The Fourth Amendment, Paul Belonick

The Judges' Book

No abstract provided.

Foreword, Nicholas G. Garaufis The Honorable

The Judges' Book

No abstract provided.

Bankruptcy: Bankruptcy Hardball, Jared Ellias

The Judges' Book

No abstract provided.

Employment Law: Proving Racial And Gender Bias Under Title Vii, Joan C. Williams

The Judges' Book

No abstract provided.

Health Law: Physician Aid In Dying And Assessment Of Patient Capacity, Lois A. Weithorn

The Judges' Book

No abstract provided.

Corporate Law: Does Trados Matter?, Abraham J.B. Cable

The Judges' Book

No abstract provided.

Intellectual Property: Naked Price & Pharmaceutical Trade Secret Overreach, Robin Feldman

The Judges' Book

No abstract provided.

Tax: Exit Rights Triggered By Tax Law Changes, Heather M. Field

The Judges' Book

No abstract provided.

Recognizing Figure Labels In Patents, Ming Gong, Xin Wei, Diane Oyen, Jian Wu, Martin Gryder

Computer Science Faculty Publications

Scientific documents often contain significant information in figures. The United States Patent and Trademark Office (USPTO) awards thousands of patents each week, with each patent containing on the order of a dozen figures. The information conveyed by these figures typically include a drawing or diagram, a label, caption and reference text within the document. Yet associating the short bits of text to the figure is challenging when labels are embedded within the figure, as they typically are in patents. Using patents as a testbench, this paper highlights an open challenge in analyzing all of the information presented in scientific/technical documents …

Tobacco Reborn: The Rise Of E-Cigarettes And Regulatory Approaches, Daniel G. Aaron

Utah Law Faculty Scholarship

This paper examines e-cigarettes, FDA-regulated products which heat nicotine-containing fluid into an aerosol to be breathed into the lungs. Recent data show that e-cigarettes are used by about one-fifth of U.S. high schoolers. Given that we have, in the Surgeon General’s words, reached an epidemic of youth e-cigarette use, it is worth asking how a product within FDA jurisdiction became a serious threat to to 3.6 million youth.

This article will review the law surrounding e-cigarettes and the history of FDA’s attempts to regulate them. Administrative law doctrines instruct us that increased presidential control will rein in misbehaving agencies by …

Public Health In The Opioid Litigation, Daniel G. Aaron

Utah Law Faculty Scholarship

Today, the opioid crisis is playing out in the nation’s courts. Litigants have taken a microscope to defendant opioid companies whose misconduct ignited and exacerbated the opioid crisis. As the litigation continues, one could imagine numerous ways its resolution could contribute to the end of a multi-decade overdose crisis and prevent future ones. Options include holding defendant companies accountable, releasing previously secret information for research on root causes of the epidemic, and prohibiting future misconduct through injunctive relief. Unfortunately, to date, the litigation has not been so capacious. Rather, the participants—judge included—have been preoccupied with rapid monetary settlement. Though understandable, …

How The Administrative State Got To This Challenging Place, Peter L. Strauss

Faculty Scholarship

Written for a dispersed agrarian population using hand tools in a local economy, our Constitution now controls an American government orders of magnitude larger that has had to respond to profound changes in transportation, communication, technology, economy, and scientific understanding. How did our government get to this place? The agencies Congress has created to meet these changes now face profound new challenges: transition from the paper to the digital age; the increasing centralization in an opaque, political presidency of decisions that Congress has assigned to diverse, relatively expert and transparent bodies; the thickening, as well, of the political layer within …

An Efficiency Analysis Of Defensive Tactics, Ronald J. Gilson, Alan Schwartz

Faculty Scholarship

For thirty five years, courts and scholars have divided over the effects of defensive tactics in the market for corporate control. Strong defensive tactics locate authority to accept a hostile bid in the target’s board. The board can bargain for a higher takeover price than uncoordinated shareholders could realize but high takeover prices may reduce shareholder returns by reducing the likelihood of receiving a bid. The Delaware Courts themselves disagree. The Delaware Chancery Court would locate ultimate decision authority in the target’s shareholders, while the Supreme Court, by permitting strong defensive tactics, allocates extensive power to the target’s board. Though …