Monthly Archive: February 2011


GW’s Junior Scholars Finalists

Thanks to my colleague, Lisa Fairfax, GW has finalized the program for this year’s Junior Faculty Business and Financial Law Workshop and Prize (detailed here).   Of the more than 100 papers submitted, the following dozen presenters were chosen.  [Commentators appear in brackets; I’ve shortened some paper titles.]  

 The workshop will take place at GW on April 1 and 2, 2011.  We are delighted by the submissions, congratulate those chosen, and stress that making the selections was difficult because of the volume of amazing papers.  We encourage everyone interested to attend and look forward to the weekend.

Adam Leviton (Georgetown), In Defense of Bailouts [George Geis (Virginia) & Art Wilmarth (GW)]

Jodie Kirshner (Cambridge), A Transatlantic Perspective on Regional Dynamics and Societa Eurpoea [Francesca Bignami (GW) & Theresa Gabaldon (GW)]

Alan White (Valparaiso), Welfare Economics and Regulation of Small-Loan Credit: Lessons from Microlending in Developing Nations [Michael Pagano (Villanova) & Lawrence Mitchell (GW)]

Nicola Sharpe (Illinois), Corporate Board Performance and Organizational Strategy [Deborah Demott (Duke) & Michael Abramowicz (GW)]

Julie Hill (Houston), The Rise of Ad Hoc Bank Capital Requirements [Anna Gelpern (American) & John Buchman (E*Trade Bank & GW Adjunct)]

Michael Simkovic (Seton Hall), The Effects of Ownership and Stock Liquidity on the Timing of Repurchase Transactions [Richard Booth (Villanova) & Henry Butler (Mason)]

Michelle Harner (Maryland), Activist Distressed Debtors [Donna Nagy (Indiana Bloomington) & Lisa Fairfax (GW)]

Saule Omarova (UNC), The Federal Reserve Board’s Use of Exemptive Power [Patricia McCoy (Connecticut) & Arthur Wilmarth (GW)]

Heather Hughes (American), Suburban Sprawl, Finance Law and Environmental Harm [Scott Kieff (GW) & Lawrence Cunningham (GW)]

Robert Jackson (Columbia), Private Equity and Executive Compensation [Norman Veasey (Weil Gotshal) & William Bratton (Penn)]

Brian Quinn (BC), Putting Your Money Where Your Mouth Is: Post Closing Price Adjustments in Merger Agreements? [Gordon Smith (BYU) & John Pollack (Schulte Roth)]

Mehrsa Baradaran (BYU), Reconsidering Wal-Mart’s Bank [Heidi Schooner (Catholic) & Renee Jones (BC)]

This is one of many events sponsored by GW’s Center for Law, Economics and Finance.


The George Washington Law Review, Issue 79:2 (February 2011)

The George Washington Law Review, Issue 79:2 (February 2011)

(Contents of current and past issues are available from our website.)

Aggregate Litigation: Critical Perspectives


Roger H. Trangsrud, Aggregate Litigation Reconsidered, 79 Geo. Wash. L. Rev. 293 (2011)


Deborah R. Hensler, The Future of Mass Litigation: Global Class Actions and Third-Party Litigation Funding, 79 Geo. Wash. L. Rev. 306 (2011)

Issues in the Certification of Class Actions

Richard Marcus, Reviving Judicial Gatekeeping of Aggregation: Scrutinizing the Merits on Class Certification, 79 Geo. Wash. L. Rev. 324 (2011)

Luke McCloud & David Rosenberg, A Solution to the Choice of Law Problem of Differing State Laws in Class Actions: Average Law, 79 Geo. Wash. L. Rev. 374 (2011)

Patrick Woolley, The Jurisdictional Nature of Adequate Representation in Class Litigation, 79 Geo. Wash. L. Rev. 410 (2011)

Other Issues Attending the Use of Class Actions

Alan B. Morrison, Improving the Class Action Settlement Process: Little Things Mean a Lot, 79 Geo. Wash. L. Rev. 428 (2011)

Linda S. Mullenix, Federal Class Actions: A Near-Death Experience in a Shady Grove, 79 Geo. Wash. L. Rev. 448 (2011)

Edward F. Sherman, “Abandoned Claims” in Class Actions: Implications for Preclusion and Adequacy of Counsel, 79 Geo. Wash. L. Rev. 483 (2011)

Nonclass Aggregate Litigation

Elizabeth Chamblee Burch, Group Consensus, Individual Consent, 79 Geo. Wash. L. Rev. 506 (2011)

David Betson & Jay Tidmarsh, Optimal Class Size, Opt-Out Rights, and “Indivisible” Remedies, 79 Geo. Wash. L. Rev. 542 (2011)

Robert G. Bone, The Puzzling Idea of Adjudicative Representation: Lessons for Aggregate Litigation and Class Actions, 79 Geo. Wash. L. Rev. 577 (2011)

Judith Resnik, Compared to What?: ALI Aggregation and the Shifting Contours of Due Process and of Lawyers’ Powers, 79 Geo. Wash. L. Rev. 628 (2011)

Ethics in Aggregate Litigation

Lester Brickman, Anatomy of an Aggregate Settlement: The Triumph of Temptation over Ethics, 79 Geo. Wash. L. Rev. 700 (2011)

Nancy J. Moore, The Absence of Legal Ethics in the ALI’s Principles of the Law of Aggregate Litigation: A Missed Opportunity—and More, 79 Geo. Wash. L. Rev. 717 (2011)

Thomas D. Morgan, Client Representation vs. Case Administration: The ALI Looks at Legal Ethics Issues in Aggregate Settlements, 79 Geo. Wash. L. Rev. 734 (2011)

Charles Silver, Ethics and Innovation, 79 Geo. Wash. L. Rev. 754 (2011)


Golden Globes v. Dick Clark (Daniel Snyder)

With this year’s Oscars and Golden Globes now handed out, Hollywood fans can look forward to next week’s hearing about who has the right to produce future Golden Globes. The sponsor of the 68-year old awards show, the Hollywood Foreign Press Association, claims it holds the exclusive power to decide who will produce and broadcast future shows. The show’s long-time producer, a successor to the Dick Clark company, says it has the production rights locked up and an exclusive deal for NBC to do the broadcast.

Resolving the centi-million dollar battle will require interpreting the parties’ contract, originally written in 1983 and amended many times.   The company thinks its case is so solid that the association’s objections can be thrown out promptly (on a motion to dismiss). It says the only place to look for guidance is within the contract’s four corners and, looking within those four corners, words plainly mean the company got in 1993 the right to as many annual options to produce the Globes show as it has years under its contract with NBC for the broadcast.

The association says things are more complex. Anyone trying to interpret the contract, it says, can see the parties’ written agreement was not the final and complete statementof the deal. The association says it always was to have the right to approve extensions of Clark’s production options and its power to license the telecast. Those rights ran out this year and the company, despite expiration, entered a secret renewal with NBC and then, fantastically, claimed that doing so magically extended its options under its association contract for the  NBC deal’s duration (to 2018).

Before assessing the arguments, the upshot of this dispute seems to be that Dick Clark and the association had a great relationship for two decades that included much informal, non-legalistic mutual reliance. Though they used formal agreements, no one thought they covered every aspect of the understanding. Then, Clark sold his company which, for the last few years, is controlled by private equity giant, Daniel Snyder (who also owns the Washington Redskins).

With the latest version of the contract expiring this year, the association thought, following decades of practice, the company would need its approval to continue and to renew its deal with NBC. The company, seizing on some language in the formal contract, decided that it had the exclusive right to renew the deal with NBC and, having done so, gained automatic extensions of its own options under the association contract. 

The case may thus pit some technical legal rules against some old-fashioned equitable impulses. It may also show how those impulses can shape the articulation and application of doctrine.  Ultimately, disputes about contract meaning and parol evidence such as this often boil down to a single question: credibility. On this score, the association should win, though at first the doctrinal balance of power goes to the company. Read More


Introducing Guest Blogger David Gray

I am delighted to welcome back my colleague Professor David Gray who will be guest blogging with us this month.  Professor Gray is an Assistant Professor of Law at the University of Maryland School of Law, where he teaches criminal law, criminal procedure, and seminars in jurisprudence and transitional justice.  Immediately before joining Maryland, he spent a few years at Williams & Connolly in Washington, D.C., where most of his time was spent on white collar, criminal, professional liability, appellate, and plaintiffs’ civil rights litigation.  Before his tenure at W & C, he was, in reverse chronological order, a Visiting Assistant Professor at Duke Law, clerk to The Hon. Chester J. Straub, and clerk to The Hon. Charles S. Haight, Jr. He received a JD Order of the Coif from the New York University School of Law, his MA and PhD in Philosophy from Northwestern University, and his BA from The University of Virginia.

Professor Gray writes mainly on jurisprudential issues core to transitional justice debates, but he also dabbles in constitutional theory and international law.  His current work focuses on criminal law theory, reparations and prosecutorial ethics.

His recent publications include:

Beyond Experience: Getting Retributive Justice Right, 99 California Law Review (forthcoming 2011) (with Dan Markel and Chad Flanders).

Extraordinary Justice, 62 Alabama Law Review (2011).

Punishment as Suffering, 64 Vanderbilt Law Review 1619 (2010).

A No-Excuse Approach to Transitional Justice: Reparations as Tools of Extraordinary Justice. 87 Washington University Law Review (2010).

Why Justice Scalia Should Be a Constitutional Comparativist . . . Sometimes, 59 Stanford Law Review 1249 (2007).

Devilry, Complicity, and Greed: Transitional Justice and Odious Debt, Law & Contemporary Problems, Summer 2007, at 137.

An Excuse-Centered Approach to Transitional Justice, 74 Fordham Law Review 2621 (2006).

Rule Skepticism, “Strategery,” and the Limits of International Law, 46 Virginia Journal of International Law 563 (2006)

A Prayer for Constitutional Comparativism in Eighth Amendment Cases, 18 Federal Sentencing Reporter 237 (2006).


The (Still Yet) Unfulfilled Promise of Automated Government Decision-Making

In Technological Due Process, 85 Wash. U. L. Rev. 1249 (2008), I explored the promise and perils of the increasing automation of administrative decision-making.  The automated administrative state took root after the convergence of a number of trends — the budget shortfalls of the 1990s, the falling costs and increased performance of information systems, and the emergence of the Internet.  Government officials saw computerized automation as an efficient way to reduce operating costs: Automated systems meant less paperwork and fewer staff.  Today, all states now automate a significant portion of the administration of their public benefit programs.  More than fifty federal agencies execute policy with data-matching and data-mining programs.  As a result, agencies increasingly use information systems to make decisions about important individual rights.

Technological Due Process identified three central problems with administrative automated systems.  First, when programmers translate policy into code, they inevitably distort it, thus embedding incorrect policy into systems.  Second, data matching programs misidentify individuals because they use crude algorithms that cannot distinguish between similar names.  Last, automated systems often have problems providing notice to individuals, often because they lack audit trails that capture why government agencies take particular action.

Colorado’s automated public benefits system, known as CBMS, served as an important case study for my work.  Responses to open-sunshine requests revealed that from September 2004 to April 2007, programmers embedded over 900 incorrect rules regarding Medicaid, food stamps, and other public benefits into CBMS.  As a result, CBMS terminated Medicaid benefits of patients with breast cancer based on income and asset limits unauthorized by federal or state law.  It denied food stamps to individuals with prior drug convictions in violation of Colorado law.  And it demanded that eligibility workers ask applicants if they were “beggars,” even though neither federal law nor state law required an answer to that question for the provision of public benefits.  Moreover, because CBMS lacked audit trails, individuals often received wholly deficient notice when the system cut or terminated their benefits.  At times, individuals received no notice.

The past four years has seen little progress.  Although state officials in 2009 thought that entering into a $48.6 million, four-year contract with Deloitte Consulting would help fix these problems, matters have arguably gotten worse.  CBMS, for instance, has delayed processing applications for benefits in 70% of cases (in violation of federal law).  It continues to terminate individuals’ public benefits without notice.  (One case led to the death of a nine-year old boy after a pharmacy would not fill his asthma prescription despite proof that his family qualified for Medicaid help).  Business school professor Don McCubbrey, who I interviewed for Tech Due Process, recently explained to the Denver Post that the recent failures cannot be due to the thousands of new Medicaid and other benefit applications from the recession.  In his view, a “system that large should be able to scale.”  According to Ed Kahn of the Colorado Center on Law and Policy, the system hasn’t just failed to fulfill its federal and state requirements but has “regressed.” Read More


Introducing Guest Blogger Maxine Eichner

I am delighted to welcome Professor Maxine Eichner as a guest for the month of March. Maxine is a Professor of Law at the UNC-Chapel Hill School of Law. Her teaching interests include sex equality, family law, employment and employment discrimination law, legal theory and torts. She writes on issues at the intersection of law and political theory, focusing particularly on family relationships, social welfare law and policy; sex equality; and the relationship of the family, the workplace, and market forces. Her new book, The Supportive State: Families, Government, and America’s Political Ideals (2010), has just been released by Oxford University Press. The book considers the role that government should play in dealing with families and the dependency issues that families face.

Professor Eichner attended Yale College and Yale Law School, where she was an articles editor of the Yale Law Journal. She also holds a Ph.D. in political theory from UNC. After law school, she held a Women’s Law and Public Policy Fellowship through Georgetown Law School, clerked for Judge Louis Oberdorfer in the United States District Court for the District of Columbia, and then clerked for Judge Betty Fletcher in the United States Court of Appeals for the Ninth Circuit. She also practiced civil rights, women’s rights, and employment law for several years at the law firm of Patterson, Harkavy, and Lawrence in Raleigh, N.C. before joining the faculty at UNC-Chapel Hill School of Law in 2003.

Professor Eichner is an editor of Family Law: Cases, Text, Problems (2010) (with Ellman, Kurtz, Weithorn, Bix, and Czapanskiy). She is also Reporter for the Uniform Law Commission’s Visitation and Custody Issues Affecting Military Personnel and Their Families Committee.

Her recent publications include:

Families, Human Dignity, and State Support for Caretaking: Why the United States’ Failure to Ameliorate the Work-Family Conflict is a Dereliction of the Government’s Basic Responsibilities, 88 N.C. L. REV. 1593 (2010).

Feminism, Queer Theory, & Sexual Citizenship, in GENDER EQUALITY: DIMENSIONS OF WOMEN’S EQUAL CITIZENSHIP (with J. Grossman and L. McClain) (Cambridge Press 2009).

Marriage and the Elephant: The Liberal Democratic State’s Regulation of Intimate Relationships Between Adults, 30 HARV. J.L. & GENDER 25 (2007).


Introducing Guest Blogger Hosea Harvey

I’m delighted to welcome guest-blogger Hosea Harvey for the month of March.   Professor Harvey is an Assistant Professor of Law and Political Science at Temple University’s Beasley School of Law.  Professor Harvey’s scholarly agenda focuses on empirical research regarding the role of law in solving race and gender disparities in consumer markets, commercial law, and business organizations.  His published work in political science focuses on experimental methods and the analysis of political attitudes about race.

Before joining Temple’s faculty in 2010, Professor Harvey practiced for five years in New York City.

First, he was a corporate associate at Cravath, Swaine & Moore, specializing in corporate governance, mergers and acquisitions, and securities.  Following Cravath, he served as Associate General  Counsel (Corporate) at Planned Parenthood’s headquarters and as the General Counsel for New York Needs You, a buzz-worthy start-up dedicated to helping first-generation low-income college students realize their professional ambitions.  After law school, Professor Harvey clerked for the Honorable Judge Barrington D. Parker, Jr. (SDNY), and the Honorable Ann Claire Williams (7th Circuit).
While in law school, Professor Harvey also served as an intern to then Deputy Attorney General Eric H. Holder, Jr.  Professor Harvey graduated from Dartmouth College and received his Ph.D. in Political Science and his law degree from Stanford University.
Welcome, Hosea!