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Articles 1 - 30 of 58
Full-Text Articles in Law
The Supremacy Clause As A Constraint On Federal Power, Bradford R. Clark
The Supremacy Clause As A Constraint On Federal Power, Bradford R. Clark
GW Law Faculty Publications & Other Works
Today, it is widely accepted that the Constitution authorizes courts to review and invalidate state laws that conflict with federal statutes. At the same time, prominent commentators and even some judges maintain that courts should not seriously review the constitutionality of federal statutes alleged to exceed the scope of Congress' enumerated powers. In their view, the constitutional structure protects the states (and thereby reduces the need for judicial review of federal power), but establishes no comparable safeguards to deter states from interfering with federal prerogatives. Contrary to this position, there is an express textual basis for judicial review of federal …
Assessing The Ilo's Efforts To Develop Migration Law, Steve Charnovitz
Assessing The Ilo's Efforts To Develop Migration Law, Steve Charnovitz
GW Law Faculty Publications & Other Works
The world community has increasingly recognized the movement of people as an issue of global policy rather than an exclusive sovereign preserve of individual governments. In considering whether a good case exists for establishing a World Migration Organization, policymakers and stakeholders should look at whether existing international organizations can be better used to enhance international cooperation on migration policy. One such organization may be the International Labour Organization (“ILO”), a UN specialized agency that has worked on migrant issues from its beginning. This article analyzes the work of the ILO in international migration as prolegomena to assessing whether its role …
Implementing Constitutional Rights For Juveniles: The Parent-Child Privilege In Context, Catherine J. Ross
Implementing Constitutional Rights For Juveniles: The Parent-Child Privilege In Context, Catherine J. Ross
GW Law Faculty Publications & Other Works
This article advocates for the creation of a parent-child privilege by focusing on the parental contribution to raising their children. The article argues that children cannot fully exercise their constitutional rights without being able to confide freely in their parents and consult them before waiving rights and while working with their attorneys. I begin by describing the current state of privilege law and suggest that there is already a “de facto” tendency to observe a parent-child privilege. I show that courts have failed to distinguish among three distinctive kinds of confidences: (1) testimony concerning confidences from a minor child to …
Three Generations Of Participation Rights Before The European Commission, Francesca Bignami
Three Generations Of Participation Rights Before The European Commission, Francesca Bignami
GW Law Faculty Publications & Other Works
This article offers a conceptual framework for analyzing the development of participation rights before the executive branch of the European Community - the European Commission. Process rights before the Commission can be divided into three categories, each of which is associated with a distinct phase in Community history and a particular set of institutional actors. The first set of rights, the right to be heard when the Commission inflicts sanctions or other forms of hardship in individual proceedings, emerged in the 1970s in competition law. This phase was driven by the Court f Justice, influenced by the English administrative law …
Murder And The Reasonable Man: Passion And Fear In The Criminal Courtroom, Cynthia Lee
Murder And The Reasonable Man: Passion And Fear In The Criminal Courtroom, Cynthia Lee
GW Law Faculty Publications & Other Works
This book examines the influence of masculinity, heterosexuality, and race norms on the reasonableness requirement in two criminal law defenses: the doctrine of provocation and the defense of self-defense. I argue that certain defendants are better able than others to bolster their claims of reasonableness by relying on dominant social norms and illustrate this point by examining three types of cases: (1) female infidelity killings, (2) gay panic killings, and (3) racialized self-defense cases (both private claims of self-defense and police use of deadly force against persons of color). Even though these three types of cases may seem completely unconnected …
The Breakdown Of The United States Government Purchase Card Program And Proposals For Reform, Jessica Tillipman
The Breakdown Of The United States Government Purchase Card Program And Proposals For Reform, Jessica Tillipman
GW Law Faculty Publications & Other Works
The Government Purchase Card Program introduced purchase cards to streamline the acquisition of items and services under $2,500. Purchase cards have proved to be extremely efficient, with some estimates putting the savings for the Government at $75 per transaction. Unfortunately, the Government has failed to maintain effective controls over cardholders and this has led to systemic abuse, preventing the Government from realizing the full potential of the purchase card program.
There are three main problems with the current scheme. First, cardholders are ignoring internal controls, resulting in purchases that supervisors cannot verify as consistent with procurement regulations. Second, the proliferation …
China's Legal System And The Wto: Prospects For Compliance, Donald C. Clarke
China's Legal System And The Wto: Prospects For Compliance, Donald C. Clarke
GW Law Faculty Publications & Other Works
The impact of WTO membership both on China and its trading partners, both for good and for ill, has been greatly overstated. WTO treaty obligations and Dispute Settlement Body rulings will not become part of Chinese domestic unless specifically incorporated by Chinese legislation. Moreover, the WTO does not require a perfect legal system of its members; instead, it requires a degree of transparency and fairness in certain limited areas. Although some of China's WTO commitments will be difficult for it to fulfill, even non-fulfillment will not result in the predicted flood of WTO dispute settlement proceedings, since such proceedings can …
Puzzling Observations In Chinese Law: When Is A Riddle Just A Mistake?, Donald C. Clarke
Puzzling Observations In Chinese Law: When Is A Riddle Just A Mistake?, Donald C. Clarke
GW Law Faculty Publications & Other Works
Understanding the Chinese legal system is not simple because it is (probably) very different from a Western one. The understanding of the Chinese legal system that results from any study will depend crucially on the selection of a paradigm with which to define what counts as an observation and against which to measure and assess the observations, either descriptively or normatively. This is not to say that the selection of a paradigm will make the difference between understanding and not understanding. It will, however, make a difference between understanding in one way and understanding in another way. Whether one of …
The Virtues Of Knowing Less: Justifying Privacy Protections Against Disclosure, Daniel J. Solove
The Virtues Of Knowing Less: Justifying Privacy Protections Against Disclosure, Daniel J. Solove
GW Law Faculty Publications & Other Works
This Article develops justifications for protections against the disclosure of private information. An extensive body of scholarship has attacked such protections as anathema to the Information Age, where the free flow of information is championed as a fundamental value. This Article responds to two general critiques of disclosure protections: (1) that they inhibit freedom of speech, and (2) that they restrict information useful for judging others.
Regarding the free speech critique, the Article argues that not all speech is of equal value; speech of private concern is less valuable than speech of public concern. The difficulty, however, is distinguishing between …
Zelman's Future: Vouchers, Sectarian Providers, And The Next Round Of Constitutional Battles, Ira C. Lupu, Robert W. Tuttle
Zelman's Future: Vouchers, Sectarian Providers, And The Next Round Of Constitutional Battles, Ira C. Lupu, Robert W. Tuttle
GW Law Faculty Publications & Other Works
This piece focuses on the Supreme Court's recent decision in Zelman v. Simmons-Harris, the Cleveland school voucher case, and the constitutional questions that have already begun to appear in its aftermath. After describing the constitutional crossroads at which the Zelman Court found itself, we offer a close reading of the Zelman opinions, paying special attention to the normative vision of church-state relations that each presupposes, the values that the Court failed to explore, and practical questions about the range of school settings to which Zelman might ultimately be applied. The piece then explores the legal and constitutional future of the …
Elusive Foundation: John Marshall, James Wilson, And The Problem Of Reconciling Popular Sovereignty And Natural Law Jurisprudence In The New Federal Republic, Arthur E. Wilmarth Jr.
Elusive Foundation: John Marshall, James Wilson, And The Problem Of Reconciling Popular Sovereignty And Natural Law Jurisprudence In The New Federal Republic, Arthur E. Wilmarth Jr.
GW Law Faculty Publications & Other Works
Chief Justice John Marshall's opinion in Marbury v. Madison is generally regarded as the cornerstone of American judicial review. Marshall's opinion in Marbury skillfully invoked the distinctive American concept of popular sovereignty and linked that concept to the written Constitution. Marshall argued that judicial review provided the best means for enforcing the people's will, as declared in the written Constitution, without resort to the drastic remedy of revolution. Marshall warned that, without judicial review, the legislative branch would enjoy a practical and real omnipotence and would reduce to nothing what we have deemed the greatest improvement on political institutions - …
The Waning Importance Of Revisions To U.C.C. Article 2, Gregory E. Maggs
The Waning Importance Of Revisions To U.C.C. Article 2, Gregory E. Maggs
GW Law Faculty Publications & Other Works
Article 2 of the Uniform Commercial Code governs contracts for the sale of goods. This article seeks to show that, however urgent the need to modernize Article 2 was in 1990, this need ironically has waned with the passage of time. Article 2 requires less change now than it did a decade ago to meet the requirements of modern commerce. The article supports this claim by looking at three very significant developments that have occurred since 1990: the growth of electronic commerce, the decision not to address software licenses in article 2, and the accumulation of a decade of precedents …
Book Review Of Frederic L. Borch, Judge Advocates In Combat: Army Lawyers In Military Operations From Vietnam To Haiti (2001), Gregory E. Maggs
Book Review Of Frederic L. Borch, Judge Advocates In Combat: Army Lawyers In Military Operations From Vietnam To Haiti (2001), Gregory E. Maggs
GW Law Faculty Publications & Other Works
This is a review of Frederic L. Borch, Judge Advocates in Combat: Army Lawyers in Military Operations from Vietnam to Haiti (2001). The book presents and supports a specific thesis. It shows that military attorneys over time gradually have assumed an important new duty in combat operations. Judge advocates, for example, now directly influence the planning and execution of military actions by drafting rules of engagement, aiding in the selection of targets, crafting policies to ensure compliance with the law of war, and even by advising on political matters in host nations. I have written a positive review of this …
Speeding Up The Crawl To The Top, Michael B. Abramowicz
Speeding Up The Crawl To The Top, Michael B. Abramowicz
GW Law Faculty Publications & Other Works
The literature on competition in corporate law has debated whether competition is a "race to the bottom" or a "race to the top.” This Article endorses the increasing scholarly consensus that competition improves corporate law but argues that the pace of innovation in corporate law is likely to be slow. Because benefits of corporate law innovation are not internalized, neither states nor firms will have sufficient incentives to innovate. That competitive federalism is “to the top" suggests that the model could be applied beyond the corporate charter context, for example to areas such as bankruptcy, but that benefits from such …
The Judicial Disabling Of The Employment Discrimination Provisions Of The Americans With Disabilities Act, Charles B. Craver
The Judicial Disabling Of The Employment Discrimination Provisions Of The Americans With Disabilities Act, Charles B. Craver
GW Law Faculty Publications & Other Works
This article explores a series of Supreme Court decisions making it more difficult for disabled individuals to assert rights under the employment discrimination provisions of the Americans with Disabilities Act. The Court first held that ADA claimants must have their disabilities considered in their corrected or medicated condition. So long as they are able to use prostheses, hearing aids, medication, or other means to control their conditions, they are not to be considered disabled. The Court further held that persons will only be considered disabled if they have conditions that severely limit them with respect to a major life activity. …
Commercial Purchasing: The Chasm Between The United States Government's Evolving Policy And Practice, Steven L. Schooner
Commercial Purchasing: The Chasm Between The United States Government's Evolving Policy And Practice, Steven L. Schooner
GW Law Faculty Publications & Other Works
During the 1990's, the United States government accelerated its efforts to adopt more commercial practices and buy more commercial items. In doing so, the government sought to: (1) mimic the most successful buying practices of businesses and consumers and (2) rely more heavily upon existing goods and services already produced in the marketplace (rather than demanding creation of government-unique versions). This paper introduces the government's efforts to make its purchasing regime more commercial through the introduction of new policies, vocabulary, purchasing authorities, and practices. The paper unveils a host of impediments that restrain the government from evolving into a truly …
On The Selection Of Judges In International Figure Skating, Michael B. Abramowicz
On The Selection Of Judges In International Figure Skating, Michael B. Abramowicz
GW Law Faculty Publications & Other Works
This essay discusses the system that the International Skating Union (ISU) has long used to select skating judges for competitions and suggests that this system creates problems of partisanship, incentivizing national skating federations to pick judges who are most likely to favor the federation’s interests while also incentivizing skating judges to favor their national federations. I offer an alternative approach to the ISU’s present method of selecting judges, a tournament-like system that could be used to pick judges objectively by rating judges based on the correlation of their scores with those of other judges and allowing those with higher correlation …
A Compromise Approach To Compromise Verdicts, Michael B. Abramowicz
A Compromise Approach To Compromise Verdicts, Michael B. Abramowicz
GW Law Faculty Publications & Other Works
Although one of the legal system’s most salient attributes is its insistence that a civil jury choose the story of one party over that of another, scholars have thus far paid almost no attention to the possibility of replacing the preponderance-of-the-evidence rule with an alternative that is not “winner-take-all.” This Article focuses on the issue of uncertainty about what the defendant did or whether the plaintiff was injured, offering an alternative to the extremes of all-or-nothing and compromise verdicts. It considers the possibility that, while sometimes an all-or-nothing verdict is appropriate, at other times a compromise verdict would be better. …
The Thin Line Between Love And Hate: Why Affinity-Based Securities And Investment Fraud Constitutes A Hate Crime, Lisa M. Fairfax
The Thin Line Between Love And Hate: Why Affinity-Based Securities And Investment Fraud Constitutes A Hate Crime, Lisa M. Fairfax
GW Law Faculty Publications & Other Works
The Thin Line Between Love and Hate: Why Affinity-Based Securities and Investment Fraud Constitutes a Hate Crime, 36 U.C. Davis 1073 (2003) explores the parallels between the prototypical hate crime and affinity fraud - securities and investment fraud that targets identifiable religious, racial and ethnic groups - and asserts that those parallels justify treating affinity fraud as a hate crime.
Domestic Violence, Child Custody, And Child Protection: Understanding Judicial Resistance And Imagining The Solutions, Joan S. Meier
Domestic Violence, Child Custody, And Child Protection: Understanding Judicial Resistance And Imagining The Solutions, Joan S. Meier
GW Law Faculty Publications & Other Works
This 2003 article seeks to take on what was then conventional wisdom, that myriad law reforms over the prior two decades have improved and corrected the law's response to domestic violence. It focuses on family courts' failure to credit and respond appropriately to protective mothers' - mostly battered women's - allegations that fathers are unsafe for the children. It unpacks several "neutral" principles that seem to guide family courts' responses to abuse allegations, arguing that they are mis-guided, and distort the realities of battering and child abuse in these cases. While not seeking to explain family court culture simply in …
Freedom Of Expression, Democratic Norms, And Internet Governance, Dawn C. Nunziato
Freedom Of Expression, Democratic Norms, And Internet Governance, Dawn C. Nunziato
GW Law Faculty Publications & Other Works
Within a decade, the Internet has transformed into a global medium of mass communication and expression of all kinds. The Internet Corporation for Assigned Names and Numbers (ICANN), the body that governs the Internet's infrastructure, assured the United States that it would govern the Internet's infrastructure democratically and would implement governance structures to take into account the interests of affected Internet users around the world. In particular, ICANN promised to employ deliberative and representative democratic structures in its decision-making bodies. Even though ICANN has (arguably) implemented such procedural democratic norms, it has failed to implement substantive norms of democratic governance, …
The Price Of Discrimination: The Nature Of Class Action Employment Litigation And Its Effects, Michael Selmi
The Price Of Discrimination: The Nature Of Class Action Employment Litigation And Its Effects, Michael Selmi
GW Law Faculty Publications & Other Works
This article analyzes the recent wave of large class action employment discrimination suits to determine their effects on the firms that are sued and the members of the plaintiff class. The first part of the paper includes an event study that measures the effect the lawsuits and their settlements have on stock prices of the companies that are sued, and the second part of the paper involves three case studies (Texaco, Home Depot and Denny's) to explore how the lawsuits actually change corporate practices. The study finds that the lawsuits do not generally affect stock prices, and rarely provide meaningful …
Adjudication, Antisubordination, And The Jazz Connection, Christopher A. Bracey
Adjudication, Antisubordination, And The Jazz Connection, Christopher A. Bracey
GW Law Faculty Publications & Other Works
We live in the midst of a pervasive and sustained democratic crisis. Our society expresses a deep commitment to core notions of freedom, justice, and equality for all citizens. Yet, it is equally clear that our democracy tolerates a great deal of social and economic inequality. Membership in a socially disfavored group can (and often does) profoundly distort one's life chances and opportunities. Our constitutional democracy acknowledges this tension, providing for both majority rule and the protection of minority rights and interests. Although we seek to safeguard minority rights and interest through express legal prohibitions on the subordination of socially …
The American Worker: Junior Partner In Success And Senior Partner In Failure, Charles B. Craver
The American Worker: Junior Partner In Success And Senior Partner In Failure, Charles B. Craver
GW Law Faculty Publications & Other Works
This article explores the degree to which American workers are treated like second-class parties by corporate leaders. When business firms do well, share holders and managers obtain significant financial gains, but rank-and-file workers do not usually share in those gains. On the other hand, when firms do poorly, thousands of employees are laid off, while managers obtain bonuses for their forthright actions designed to curtail labor costs. These developments correspond directly to the decline of labor organizations in the United States. When unions represented 35 percent of private sector workers in the late 1950s and 1960s, wages and benefits were …
A Comment On China's Participation In The World Trade Organization, Steve Charnovitz
A Comment On China's Participation In The World Trade Organization, Steve Charnovitz
GW Law Faculty Publications & Other Works
This comment discusses two papers presented at the US-China WTO Roundtable sponsored by the Institute of International Law of The Temple University James E. Beasley School of Law. The paper by Zhang Naigen examines treaty interpretation in dispute settlement under the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights. Professor Zhang observes that WTO panels will have to interpret the underlying provisions in non-WTO treaties, namely the intellectual property rights treaties overseen by the World Intellectual Property Organization. The paper by Yang Guohua points out the paradox that although the WTO permits governments to utilize import safeguards, in all …
More Statistics, Less Persuasion: A Cultural Theory Of Gun-Risk Perceptions, Donald Braman, Dan M. Kahan
More Statistics, Less Persuasion: A Cultural Theory Of Gun-Risk Perceptions, Donald Braman, Dan M. Kahan
GW Law Faculty Publications & Other Works
What motivates individuals to support or oppose the legal regulation of guns? What sorts of evidence or arguments are likely to promote a resolution of the gun control debate? Using the survey methods associated with the cultural theory of risk, we demonstrate that individuals' positions on gun control derive from their cultural world views: individuals of an egalitarian or solidaristic orientation tend to support gun control, those of a hierarchical or individualist orientation to oppose it. Indeed, cultural orientations so defined are stronger predictors of individuals' positions than is any other fact about them, including whether they are male or …
States As Nations: Dignity In Cross-Doctrinal Perspective, Peter J. Smith
States As Nations: Dignity In Cross-Doctrinal Perspective, Peter J. Smith
GW Law Faculty Publications & Other Works
In a series of recent decisions, the Supreme Court has asserted that the states' sovereign immunity from suit serves principally to protect the "dignity" of the states. This seemingly oxymoronic notion has perplexed and amused commentators, who have tended to dismiss it largely as rhetorical flourish without substantive content. Although the concept of state dignity is at best an unusual anchor for a doctrine that already has been roundly criticized as unfaithful to constitutional history, text, and structure, the notion of state dignity is not foreign to the law. This article argues that in relying on state dignity, the Court's …
The Parent-Child Privilege In Context, Catherine J. Ross
The Parent-Child Privilege In Context, Catherine J. Ross
GW Law Faculty Publications & Other Works
The article argues that children cannot fully exercise their constitutional rights under the Fifth and Sixth Amendments without being able to confide freely in their parents and advocates for the creation of a parent-child privilege.
Corporate Governance In China: An Overview, Donald C. Clarke
Corporate Governance In China: An Overview, Donald C. Clarke
GW Law Faculty Publications & Other Works
Corporate governance (gongsi zhili) is a concept whose time seems definitely to have come in China. Chinese definitions of corporate governance in the abstract tend to cover the system regulating relationships among all parties with interests in a business organization, usually spelling out shareholders as a particularly important group (e.g., Liu, 1999; Yin, 1999). But Chinese corporate governance discourse in practice focuses almost exclusively on agency problems and within only two types of firms: state-owned enterprises (SOEs), particularly after their transformation into one of the corporate forms provided for under the Company Law,1 and listed companies, which must be companies …
Including Law In The Mix: The Role Of Law, Lawyers, And Legal Training In Child Advocacy, Catherine J. Ross
Including Law In The Mix: The Role Of Law, Lawyers, And Legal Training In Child Advocacy, Catherine J. Ross
GW Law Faculty Publications & Other Works
This chapter describes the recent trends in family law scholarship, training, and practice. The first section of this chapter provides an overview of the scope of modern family law and the range of skills brought by lawyers. The second section considers the legal profession’s interest in using its collective talents to improve children’s lives in context of the broader intellectual trends in thinking about family issues. In the third section, I describe the current goals of legal education, explain why law schools should offer interdisciplinary training to students who plan to work in family law, and discuss some innovative multidisciplinary …