Law Commons^™

From Cooperative To Inoperative Federalism: The Perverse Mutation Of Environmental Law And Policy, Robert L. Glicksman

GW Law Faculty Publications & Other Works

Beginning in 1970, Congress adopted a series of statutes to protect public health and the environment that represented an experiment in cooperative federalism. The operative principle of cooperative federalism is that the federal government establishes a policy - such as protection of public health and the environment and sustainable natural resource use - and then enlists the aid of the states, through a combination of carrots and sticks, in pursuing that policy. The result is a system in which both levels of government work together to achieve a common goal. If the process works well, the synergism of related federal …

Private Monitoring Of Gatekeepers: The Case Of Immigration Enforcement, Jeffrey Manns

GW Law Faculty Publications & Other Works

This article shows how the enlistment of private monitors can overcome the limits of public enforcers in overseeing gatekeeper compliance with liability-induced duties. Gatekeepers are private actors who possess skills or advantages that allow them to detect and prevent wrongdoing in a more cost-effective way than the state. The problem enforcers face is that the same skills or advantages that equip gatekeepers with the ability to identify wrongdoing often provide them with the means and incentives to subvert their duties and to evade public oversight. Policymakers have largely attempted to remedy this challenge by increasing sanctions against gatekeepers and have …

The Independent Director In Chinese Corporate Governance, Donald C. Clarke

GW Law Faculty Publications & Other Works

Corporate governance (gongsi zhili) is a concept whose time has come in China, and the institution of the independent director is a major part of this concept. Policymakers in several countries such as the United Kingdom and Japan have turned to independent directors as an important element of legal and policy reform in the field of corporate governance. In August 2001, the China Securities Regulatory Commission (CSRC) issued its Guidance Opinion on the Establishment of an Independent Director System in Listed Companies. Covering all companies listed on Chinese stock exchanges (but not Chinese companies listed overseas), it constitutes the most …

Review Essay: 'Seeing Beyond The Limits Of International Law,' Jack L. Goldsmith And Eric A. Posner, 'The Limits Of International Law', Paul Schiff Berman

GW Law Faculty Publications & Other Works

In 'The Limits of International Law,' Jack Goldsmith and Eric Posner use the simplifying assumptions of rational choice theory in an attempt to demonstrate that international law has no independent valence whatsoever. Rather, according to the authors, each state single-mindedly pursues its own rational interest and obeys international legal norms only to the extent that such norms serve those pre-existing interests. In this Review Essay, I argue that their vision of international law is deeply flawed. In particular, I take issue with the authors' assumption that states simply have pre-existing unitary interests that they then rationally pursue. First, I argue …

Dialectical Regulation, Territoriality, And Pluralism, Paul Schiff Berman

GW Law Faculty Publications & Other Works

Scholarly and policy debates about territoriality and nation-state sovereignty are turning to the ways in which such concepts might be changing in an increasingly interconnected world of interlocking governance structures and systems of communication. Robert Ahdieh's provocative and generative essay, Dialectical Regulation, 38 Conn. L. Rev. 863 (2005-2006), attempts a model for understanding this new plural order. He argues that intersystemic regulation is now a significant legal reality, and analyzes the types of interactions we would expect to see among these multiple regulatory authorities. Ahdieh aims to define dialectical regulation, in which regulators exist in some kind of formal structural …

Federalism, Instrumentalism, And The Legacy Of The Rehnquist Court, Peter J. Smith

GW Law Faculty Publications & Other Works

This paper starts from the proposition that although the Rehnquist Court imposed limits on federal power in the name of states' rights far more aggressively than did its post-1937 predecessors, it just as often chose not to impose limits in cases that otherwise fairly can be thought to have presented a question of federalism. The article then makes three claims. First, the article argues that any ultimately satisfying account of the Rehnquist Court's federalism doctrine must acknowledge that the decisions have often appeared to be driven as much by the Justices' policy preferences about the underlying substantive matters at issue …

An Introduction To The United States Legal System: Cases And Comments, Alberto M. Benítez

GW Law Faculty Publications & Other Works

This casebook introduces non-U.S trained lawyers, law students, and college undergraduates to the intricacies and nuances of our legal system. The world is becoming a smaller place and as a consequence of this globalization, the need for lawyers who are international in perspective and competence is increasing. Whatever one's opinion about globalization, there is no doubt that the U.S. legal system is at the forefront of these changes. This book attempts to compress three years of U.S. legal education into one casebook.

The following materials in this chapter, and throughout this book, will help non-United States law students and pre-law …

The Marshall Court And The Originalist's Dilemma, Peter J. Smith

GW Law Faculty Publications & Other Works

In response to Anti-Federalist complaints that the Constitution was dangerous because it was ambiguous, James Madison and Alexander Hamilton argued that judges would construe the Constitution in the same manner that they construed statutes, and in the process would fix the meaning of ambiguous constitutional provisions. In other words, the original understanding was that constitutional ambiguities would be resolved, among other means, through adjudication. During his lengthy tenure, Chief Justice John Marshall had ample occasion to fix constitutional meaning, and he presided over a Court that resolved many constitutional ambiguities according to a nationalistic view of the relationship between the …

Occ V. Spitzer: An Erroneous Application Of Chevron That Should Be Reversed, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

This essay criticizes OCC v. Spitzer (S.D.N.Y. 2005), a recent federal court decision dealing with the application of state laws to national banks. The court upheld a regulation issued by the Office of the Comptroller of the Currency ("OCC"), the federal agency that supervises national banks. The OCC's regulation preempts the authority of state officials to file suit in state or federal courts to enforce state laws against national banks. The OCC's regulation asserts that any decision about whether to enforce state laws against national banks is a matter "within the OCC's exclusive purview."

Based on the OCC's regulation, the …

The Jec's Estate Tax Report: Myths And Legends, Neil H. Buchanan

GW Law Faculty Publications & Other Works

Advocates of estate tax repeal often assert that family-run businesses and farms are broken up when heirs are unable to pay the estate tax. This claim has never been proven, but a recent Joint Economic Committee report claims to demonstrate that it is true. I assess the arguments and evidence presented in the JEC report and find that there is nothing in it that proves that the estate tax breaks up family-run businesses and farms. In fact, the most credible source cited by the report suggests that families might have adequate liquid resources to pay the estate tax or even …

Planning Options For The Daily Care Of A Minor In The Event Of An Adult's Incapacity Or Death, Naomi R. Cahn

GW Law Faculty Publications & Other Works

While most children grow up in their families of origin with at least one of their parents, what happens when the parents die or are incapacitated? While they are alive, parents are presumed to be the legal guardians for their children, and if one dies or has had his/her parental rights terminated, then the surviving parent is generally the sole legal guardian. Even if that parent remarries, the stepparent is not the legal parent.

As this chapter shows, parents can give to other adults some of their legal caretaking responsibilities while they are still competent. There are three different methods …

The (Neglected) Employment Dimension Of The World Trade Organization, Steve Charnovitz

GW Law Faculty Publications & Other Works

A key assumption underlying the World Trade Organization (WTO) is that its program of trade negotiations will strengthen the world economy and lead to more trade, investment, employment and income growth throughout the world. In the author's view, the WTO truly is strengthening the world economy and promoting trade and investment in many parts of the world. Yet the rest of the thesis is debatable. Is it necessarily true that the WTO and the trade negotiations it sponsors are increasing employment and income growth throughout the world? Indeed, even aggregating the world economy into one planetary unit, one wonders whether …

International Trade And Developing Countries (Introduction), Steve Charnovitz

GW Law Faculty Publications & Other Works

This article is an introduction to the Fordham International Law Journal, Volume 29, Number 2. The journal issue addresses the challenge of trade and developing countries. The most powerful countries have sound financial, political, environmental, and social reasons to promote sustainable economic growth throughout the world. Nevertheless, the policies used to do so have failed or have, in some instances, been designed in such a hypocritical way that they could not possibly succeed in their ostensible purposes. The issue offers a useful contribution to the debate about what works and does not work in promoting development.

Constitutional Structure, Judicial Discretion, And The Eighth Amendment, Bradford R. Clark

GW Law Faculty Publications & Other Works

The Supreme Court recently resolved a longstanding split in its Eighth Amendment jurisprudence when it declared that the cruel and unusual punishments clause delegates to federal courts broad discretion to exercise independent judgment to evaluate the propriety of punishments authorized by state law. The Court claimed authority to displace a punishment - however widely employed - based on the Court's own assessment of the penological effectiveness of the punishment and the moral culpability of the particular class of offenders. Notably, the Court did not, and has not in the modern era, attempted to justify its approach in terms of either …

The Relevance Of The Nlra And Labor Organizations In The Post-Industrial Global Economy, Charles B. Craver

GW Law Faculty Publications & Other Works

As the United States continues to transition from a manufacturing to a post-industrial service-oriented economy that is directly affected by global competition, the strength of domestic labor organizations has declined and private sector union membership has fallen to below 8 percent. Most unions continue to behave like the craft and industrial organizations of the mid-1900s. They employ appeals that once worked well for blue collar manufacturing workers to appeal to new-age white collar and service personnel who view traditional unionization as working class. If labor organizations hope to appeal to twenty-first century employees, they must devise strategies that will resonate …

Language, Deals And Standards: The Future Of Xml Contracts, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

eXtensible Markup Language (XML) structures information in documentary systems ranging from financial reports to medical records and business contracts. XML standards for specific applications are developed spontaneously by self-appointed technologists or entrepreneurs. XML's social and economic stakes are considerable, especially when developed for the private law of contracts. XML can reduce transaction costs but also limit the range of contractual expression and redefine the nature of law practice. So reliance on spontaneous development may be sub-optimal and identification of a more formal public standard setting model necessary. To exploit XML's advantages while minimizing risks, this Article envisions creating a publicly …

Engineering A Deal: Toward A Private Ordering Solution To The Anticommons Problem, F. Scott Kieff, Troy A. Paredes

GW Law Faculty Publications & Other Works

The problems of the intellectual property ("IP") anticommons are infamous. Many people fear that the potential for vast numbers of IP rights to cover a single good or service will prevent an enterprise from even attempting to launch a business for fear of being unduly taxed or retarded or simply held up. This Article offers a solution based on private ordering within the context of existing laws. This approach uses a limited liability entity structured so that IP owners are given an actual stake in the operating business and thus an incentive to participate in the enterprise; and yet at …

Justice Rehnquist And The Dismantling Of Environmental Law, Robert L. Glicksman, James May

GW Law Faculty Publications & Other Works

Chief Justice William H. Rehnquist was uniquely situated to have a profound impact on the development of federal environmental law - both because of the overlap of his tenure with the development of the field of environmental law and because of his four-decade tenure on the U.S. Supreme Court, more than one-half of which was as Chief Justice. Before his death on September 3, 2005, Rehnquist heard the vast majority of the Court`s environmental cases during the modern environmental era, penning opinions in 25% of them, and affording him an opportunity to shape environmental law, especially during its formative years, …

What The Shutts Opt-Out Right Is And What It Ought To Be, Alan B. Morrison

GW Law Faculty Publications & Other Works

This article discusses the ramifications of the U.S. Supreme Court's decision in Phillips Petrolem v. Shutts, 472 U.S. 797 (1985), regarding the right of an absent class member to opt out of a class action. The article addresses both the current prevailing understanding of Shutts, which is based on the personal jurisdiction strain of due process jurisprudence, and what the authors believe is a more useful understanding, based on the property rights strain of due process jurisprudence. As an addendum to the article, the authors propose a new civil procedure rule governing class actions that would implement their ideas about …

Voter Identification, Spencer A. Overton

GW Law Faculty Publications & Other Works

In the wake of closely contested elections, calls for laws that require voters to present photo identification as a condition to cast a ballot have become pervasive. Advocates tend to rely on two rhetorical devices: (1) anecdotes about a couple of elections tainted by voter fraud; and (2) common sense arguments that voters should produce photo identification because the cards are required to board airplanes, buy alcohol, and engage in other activities. This Article explains the analytical shortcomings of anecdote, analogy, and intuition, and applies a cost-benefit approach generally overlooked in election law scholarship. Rather than rushing to impose a …

A Place At The Table: Creating Presence And Voice For Teenagers In Dependency Proceedings, Catherine J. Ross

GW Law Faculty Publications & Other Works

This comment argues that lawyers for youth in foster care too often fail to include their clients in judicial hearings and that foster youth are entitled to appear at hearings where critical decisions affecting their lives will be made. The article reviews studies showing that foster children complain that they have little or no opportunity to be heard, and discusses the interplay between foster care and problems at school.

Linking Domestic Violence, Child Abuse, And Animal Cruelty, Joan Schaffner

GW Law Faculty Publications & Other Works

For years social science has demonstrated a link between animal abuse and human violence but the legal system has been slow to recognize this link. This article discusses the link among domestic violence, child abuse and animal abuse in the home and how one jurisdiction, the District of Columbia, is addressing this complex and integrated cycle of abuse as family abuse. The legal proposals include mandatory cross-reporting of abuse between child services and animal protection services, recognizing pet abuse with the intent of injuring a human family member as grounds for an intra-family abuse protective order, providing companion animal protection …

A Model Regime Of Privacy Protection, Daniel J. Solove

GW Law Faculty Publications & Other Works

A series of major security breaches at companies with sensitive personal information has sparked significant attention to the problems with privacy protection in the United States. Currently, the privacy protections in the United States are riddled with gaps and weak spots. Although most industrialized nations have comprehensive data protection laws, the United States has maintained a sectoral approach where certain industries are covered and others are not. In particular, emerging companies known as "commercial data brokers" have frequently slipped through the cracks of U.S. privacy law. In this article, the authors propose a Model Privacy Regime to address the problems …

Restoring (And Risking) Interest In International Law, Edward T. Swaine

GW Law Faculty Publications & Other Works

Jack Goldsmith of Harvard Law School and Eric Posner of the University of Chicago Law School articulate a comprehensive and engaging theory of state behaviors in their new book, “The Limits of International Law,” but with several internal flaws. Their book uses rational choice theory to explain how states act rationally to maximize their interests, and how, in doing so, states align themselves (sometimes) with international law. This book review argues that while Limits is a skilled and pioneering work that deserves to be taken seriously, it also suffers from tensions and over-generalizations that undermine its claims. As a result, …

A Case Study In Comparative Procurement Law: Assessing Uncitral's Lessons For U.S. Procurement, Christopher R. Yukins

GW Law Faculty Publications & Other Works

The United Nations Commission on International Trade Law (UNCITRAL) has commissioned a working group, with delegations from many industrialized and developing nations, to reform and update the UNCITRAL Model Law on Procurement of Goods, Construction and Services. The working group is currently reviewing reforms on a number of fronts. This essay focuses on three areas of reform in particular - electronic communications, electronic reverse auctions, and unrealistically low bidding - to gauge whether lessons from the UNCITRAL debate may be useful for reform in the U.S. procurement system. As the essay reflects, the international debate surrounding UNCITRAL reform does in …

Protecting Privacy Against The Police In The European Union: The Data Retention Directive, Francesca Bignami

GW Law Faculty Publications & Other Works

This essay examines the European Union's new turn towards protecting personal data against the police. The first part explores the developments that have given rise to these policies: the dramatic possibilities of today's digital technologies for the police and the intensification of police cooperation in the European Union following the terrorist attacks in New York, Madrid, and London. The second part analyzes the piece of legislation with the most significant data protection ramifications to be enacted at the time of this writing: the Data Retention Directive. The essay concludes with some thoughts on how the largely positive rights experience of …