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2006

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Articles 8161 - 8190 of 11696

Full-Text Articles in Law

Neither Dead Nor Dangerous: Postmodernism And The Teaching Of Legal Writing, Adam Todd Jan 2006

Neither Dead Nor Dangerous: Postmodernism And The Teaching Of Legal Writing, Adam Todd

School of Law Faculty Publications

This article explores postmodernism and its relation to the teaching of legal writing. Postmodernism is an undeniably important theory in literary criticism, composition and rhetoric and has provoked much debate in areas of legal scholarship, but it has seldom been addressed directly by legal writing scholars.

The teaching of legal writing has been greatly affected by postmodernism and can be characterized as a postmodern class in what is otherwise a modernist academy. Legal writing teachers generally teach in a modernist paradigm which seeks to normalize the law and create unitary meaning from the morass of texts and ideas which is ...


Filartiga’S Legacy In An Era Of Military Privatization, Laura T. Dickinson Jan 2006

Filartiga’S Legacy In An Era Of Military Privatization, Laura T. Dickinson

GW Law Faculty Publications & Other Works

Filartiga v. Pena-Irala established the idea that domestic tort suits might be brought under the Alien Tort Claims Act ("ATCA") against those accused of violating human rights norms. But what is the legacy of this case in an era of military privatization? Are there available legal responses to what we might call the privatization of torture? In the Abu Ghraib prison in Iraq, where detainees were tortured and abused, the individuals involved in the torture included not only members of the military, but contractors hired from the private sector. Because U.S. constitutional scrutiny traditionally applies only to state actors ...


The Jurisdictional Heritage Of The Grand Jury Clause, Roger A. Fairfax Jr. Jan 2006

The Jurisdictional Heritage Of The Grand Jury Clause, Roger A. Fairfax Jr.

GW Law Faculty Publications & Other Works

For the first 150 years of our constitutional history, a valid grand jury indictment was deemed to be a mandatory prerequisite to a federal court's exercise of criminal subject matter jurisdiction. Under that view of the Grand Jury Clause, a defendant in a federal felony case could neither waive nor forfeit the right to grand jury indictment. A critical examination of the historical evidence reveals that the legal realist criminal procedure reform project of the early twentieth century advanced a pragmatic critique of the usefulness of the grand jury that culminated in a provision of the Federal Rules of ...


Engineering A Deal: Toward A Private Ordering Solution To The Anticommons Problem, F. Scott Kieff, Troy A. Paredes Jan 2006

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 ...


Coordination, Property & Intellectual Property: An Unconventional Approach To Anticompetitive Effects & Downstream Access, F. Scott Kieff Jan 2006

Coordination, Property & Intellectual Property: An Unconventional Approach To Anticompetitive Effects & Downstream Access, F. Scott Kieff

GW Law Faculty Publications & Other Works

Countless high profile cases like the recent patent litigation threatening to shut down the BlackBerry® service have long drawn sharp criticism; and in response, most of the intellectual property (IP) literature argues for the use of weaker, or liability rule, enforcement as a tool for solving the problems of anticompetitive effects and downstream access while still providing sufficient rewards to IP creators. This paper takes an unconventional approach under which rewards don't matter much, but coordination does matter a great deal. The paper shows how stronger, or property rule, enforcement facilitates the good type of coordination that increases competition ...


Justice Rehnquist And The Dismantling Of Environmental Law, Robert L. Glicksman, James May Jan 2006

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 ...


Reserving, Edward T. Swaine Jan 2006

Reserving, Edward T. Swaine

GW Law Faculty Publications & Other Works

The law of treaty reservations - which enables states to ask that their multilateral obligations be tailored to their individual preferences - has been controversial for over fifty years, and is at present subject to pitched battles within (and between) the International Law Commission and numerous other international institutions. There is broad agreement that existing scheme under the Vienna Convention on the Law of Treaties involves a sharp tradeoff between honoring the unalloyed consent of non-reserving states (that is, those agreeing to the treaty as originally negotiated, which may object to proposed reservations) and respecting the conditioned consent of reserving states; moreover ...


International Trade And Developing Countries (Introduction), Steve Charnovitz Jan 2006

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.


Public Law Values In A Privatized World, Laura T. Dickinson Jan 2006

Public Law Values In A Privatized World, Laura T. Dickinson

GW Law Faculty Publications & Other Works

Although domestic administrative law scholars have long debated privatization within the US, this debate has not confronted the growing phenomenon of privatization in the international realm or its impact on the values embodied in public international law. Yet, with both nation-states and international organizations increasingly privatizing foreign affairs functions, privatization is now as significant a phenomenon internationally as it is domestically. For example, states are turning to private actors to perform core military, foreign aid, and diplomatic functions. Military privatization entered the popular consciousness in 2004, when private contractors working for the US government abused detainees at Abu Ghraib prison ...


Challenges To Civilian Control Of The Military: A Rational Choice Approach To The War On Terror, Glenn Sulmasy, John Yoo Jan 2006

Challenges To Civilian Control Of The Military: A Rational Choice Approach To The War On Terror, Glenn Sulmasy, John Yoo

Faculty Scholarship

No abstract provided.


Venture Capital, Agency Costs, And The False Dichotomy Of The Corporation, Robert P. Bartlett Jan 2006

Venture Capital, Agency Costs, And The False Dichotomy Of The Corporation, Robert P. Bartlett

Faculty Scholarship

No abstract provided.


Testing Drugs Versus Testing For Drug Use: Private Risk Management In The Shadow Of Criminal Law, Robert J. Maccoun Jan 2006

Testing Drugs Versus Testing For Drug Use: Private Risk Management In The Shadow Of Criminal Law, Robert J. Maccoun

Faculty Scholarship

No abstract provided.


Fighting Childhood Obesity Through Performance-Based Regulation Of The Food Industry, Stephen D. Sugarman, Nirit Sandman Jan 2006

Fighting Childhood Obesity Through Performance-Based Regulation Of The Food Industry, Stephen D. Sugarman, Nirit Sandman

Faculty Scholarship

No abstract provided.


Regulation As Delegation: Private Firms, Decisionmaking, And Accountability In The Administrative State, K. A. Bamberger Jan 2006

Regulation As Delegation: Private Firms, Decisionmaking, And Accountability In The Administrative State, K. A. Bamberger

Faculty Scholarship

Administrative agencies increasingly enlist the judgment of private firms they regulate to achieve public ends. Regulation concerning the identification and reduction of risk--from financial, data and homeland security risk to the risk of conflicts of interest--increasingly mandates broad policy outcomes and accords regulated parties wide discretion in deciding how to interpret and achieve them. Yet the dominant paradigm of administrative enforcement, monitoring and threats of punishment, is ill suited to oversee the sound exercise of judgment and discretion. This Article argues that this kind of regulation should be viewed, instead, as regulatory "delegation" of the type Congress makes to agencies ...


A Case Study In Comparative Procurement Law: Assessing Uncitral's Lessons For U.S. Procurement, Christopher R. Yukins Jan 2006

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 fact ...


Linking Domestic Violence, Child Abuse, And Animal Cruelty, Joan Schaffner Jan 2006

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 ...


Another Case In Lochner’S Legacy, The Court’S Assault On New Property: The Right To The Mandatory Enforcement Of A Restraining Order Is ‘A Sham, Nullity And Cruel Deception’, Christopher J. Roederer Jan 2006

Another Case In Lochner’S Legacy, The Court’S Assault On New Property: The Right To The Mandatory Enforcement Of A Restraining Order Is ‘A Sham, Nullity And Cruel Deception’, Christopher J. Roederer

School of Law Faculty Publications

No abstract provided.


The Transformation Of South African Private Law After Ten Years Of Democracy: The Role Of Torts (Delict) In The Consolidation Of Democracy, Christopher J. Roederer Jan 2006

The Transformation Of South African Private Law After Ten Years Of Democracy: The Role Of Torts (Delict) In The Consolidation Of Democracy, Christopher J. Roederer

School of Law Faculty Publications

Although the role of the private law has been largely ignored in studies of transitional justice, private law is a crucial component in South Africa’s transition/transformation. Contrary to the views of some commentators, the private law and delict in particular, were tainted by apartheid. Further, even if the private law of South Africa was not infected by the apartheid cancer, it acted as a carrier and facilitator of apartheid values and policies, perpetuating the inequities apartheid. While there is evidence of the cancer in apartheid case law the more serious problem was a failure of delict to progress ...


Was The Disparate Impact Theory A Mistake?, Michael Selmi Jan 2006

Was The Disparate Impact Theory A Mistake?, Michael Selmi

GW Law Faculty Publications & Other Works

The disparate impact theory has long been viewed as one of the most important and controversial developments in antidiscrimination law. In this article, Professor Selmi assesses the theory's legacy and challenges much of the conventional wisdom. Professor Selmi initially charts the development of the theory, including a close look at Griggs v. Duke Power Co. and Washington v. Davis, to demonstrate that the theory arose to deal with specific instances of past discrimination rather than as a broad theory of equality. In the next section, Professor Selmi reviews the success of the theory in the courts through an empirical ...


Privacy For The Working Class: Public Work And Private Lives, Michael Selmi Jan 2006

Privacy For The Working Class: Public Work And Private Lives, Michael Selmi

GW Law Faculty Publications & Other Works

Privacy has become the law's chameleon, simultaneously everywhere and nowhere. This is particularly true of the workplace where employees often seek some private space but where the law, particularly the formidable employment-at-will rule, typically frustrates that search. As the workplace has expanded both in its scope and importance, additional concerns have been raised about an employer's potential reach outside of the workplace. In this symposium contribution, I explore the privacy issue by asking a fundamental question: what do employees deserve? My answer is that, as a matter of policy, we ought to concede privacy issues as the employer ...


Race In The City: The Triumph Of Diversity And The Loss Of Integration, Michael Selmi Jan 2006

Race In The City: The Triumph Of Diversity And The Loss Of Integration, Michael Selmi

GW Law Faculty Publications & Other Works

This symposium piece explores the current state of our cities with a particular emphasis on political power, education and housing, and examines whether our move away from integration and towards diversity has been a trade worth making. Despite the transformation of most of the largest cities to majority-minority status, the latest data indicate that our housing remains deeply segregated, and urban schools deeply troubled, and in many instances, whites have been able to retain political power. The increased emphasis on diversity has not translated into the expected multicultural renaissance. The essay also explores the emerging issues relating to the ascendancy ...


The Originalist's Dilemma, Peter J. Smith Jan 2006

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 ...


Pfizer's Viagra Patent And The Promise Of Patent Protection In China, Jeffrey A. Andrews Jan 2006

Pfizer's Viagra Patent And The Promise Of Patent Protection In China, Jeffrey A. Andrews

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.


Jury Trials In Japan, Robert M. Bloom Jan 2006

Jury Trials In Japan, Robert M. Bloom

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.


New Medium, Old Free Speech Regimes: The Historical And Ideological Foundations Of French & American Regulation Of Bias-Motivated Speech And Symbolic Expression On The Internet, Lyombe Eko Jan 2006

New Medium, Old Free Speech Regimes: The Historical And Ideological Foundations Of French & American Regulation Of Bias-Motivated Speech And Symbolic Expression On The Internet, Lyombe Eko

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.


The Expansion Of Intellectual Property Rights By International Agreement: A Case Study Comparing Chile And Australia's Bilateral Fta Negotiations With The U.S., Ralph Fischer Jan 2006

The Expansion Of Intellectual Property Rights By International Agreement: A Case Study Comparing Chile And Australia's Bilateral Fta Negotiations With The U.S., Ralph Fischer

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.


Bosal Holding Bv V. Staatssecretaris Van Financien: The Ecj Moves The Eu Closer To Unlegislated Harmonization Of Corporate Taxes, Justin Bowen Jan 2006

Bosal Holding Bv V. Staatssecretaris Van Financien: The Ecj Moves The Eu Closer To Unlegislated Harmonization Of Corporate Taxes, Justin Bowen

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.


Return To Sender: Reconsidering Prisoner Correspondence Under Article 8 In Dankevich V. Ukraine, Alexander Sario Jan 2006

Return To Sender: Reconsidering Prisoner Correspondence Under Article 8 In Dankevich V. Ukraine, Alexander Sario

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.


A Grand Slam Of Professional Irresponsibility And Judicial Disregard, Stephen A. Saltzburg Jan 2006

A Grand Slam Of Professional Irresponsibility And Judicial Disregard, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

Many examples of bad lawyering and indifferent judicial responses to bad lawyering concern those who seek to raise the standards of professional conduct and assure adequate legal representation for all clients. This article discusses one case (a death penalty prosecution of William Charles Payton for rape, murder and attempted murder in 1981) to illustrate just how poor the performance of lawyers can be and how largely indifferent judges often are to such performances. With the defendant's life on the line, it appears that none of the legally trained professionals at trial did what professional standards required of them. The ...


Trial Tactics: Reverse Rule 404(B) Evidence: Parts I And Ii, Stephen A. Saltzburg Jan 2006

Trial Tactics: Reverse Rule 404(B) Evidence: Parts I And Ii, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

Defendants have the same right to offer Rule 404(b) evidence as prosecutors, and they are not required to give pretrial notice under the Federal Rules of Evidence. When defendants offer this evidence, they attempt to prove that someone else is guilty of the crime attributed to them. This often is referred to as reverse Rule 404(b) evidence. Some defense evidence will be admitted - indeed the Confrontation Clause or Compulsory Process Clause may require admission in some cases - but not all defense evidence will be admitted. The issue is where to draw the line between admissible and inadmissible evidence ...