Law Commons^™

Book Review, Robert J. Cottrol

GW Law Faculty Publications & Other Works

Brazilian legal history has been a challenging and somewhat under-explored field. It presents often daunting challenges, requiring the uncovering of opaque and often conflicting legal doctrine and the ability to grapple with even harder to discern questions concerning the law’s application and impact on Brazilian history. The field has been under explored by Brazilian legal scholars who have tended to focus their historical investigations on the development of continental civil law. It has also suffered from neglect by historians, Brazilian and foreign, who have largely concentrated their efforts on the political, social and economic history of the South American colossus. …

Erie's Constitutional Source, Bradford R. Clark

GW Law Faculty Publications & Other Works

The constitutional rationale of Erie Railroad Co. v. Tompkins has remained elusive for almost seventy years. Three decades ago, Paul Mishkin argued in a brief but influential article that Erie rests on "constitutional principles which restrain the power of the federal courts to intrude upon the states' determination of substantive policy in areas which the Constitution and Congress have left to state competence." Professor Mishkin wrote his article in response to John Hart Ely's insightful analysis of Erie published earlier the same year. Mishkin understood Erie as imposing a constitutional restraint on the federal courts, but read Ely as treating …

An Introduction To The History Of International Human Rights Law, Dinah L. Shelton

GW Law Faculty Publications & Other Works

As part of a lecture series given at the International Institute of Human Rights, in Strasbourg, France, in July 2003, the author presents an overview of the history of international human rights law. The author explores numerous religious, political, cultural, philosophical, economic and intellectual movements throughout history that have informed and guided the development of human rights law on the global stage. In doing so, the author examines the moral and ethical dimensions which underpin international human rights law, including what she defines as the innate human desire for protection from abuse. The author highlights the world's most significant historical …

Global Climate Change And The Risks To Coastal Areas From Hurricanes And Rising Sea Levels: The Costs Of Doing Nothing, Robert L. Glicksman

GW Law Faculty Publications & Other Works

In the wake of Hurricane Katrina, attention has focused on a pair of threats to low-lying coastal areas. Scientists have begun a debate over the possible impact of global climate change on hurricane intensity. Some scientists take the position that recent increases in hurricane intensity in the North Atlantic are due, at least in part, to increases in sea surface temperatures caused by human-induced global climate change. Others believe that those increases are largely due to natural fluctuations in weather patterns such as the Atlantic Multidecadal Oscillation. There is little debate over a second threat to coastal areas. The broad …

Nothing Is Real: Protecting The Regulatory Void Through Federal Preemption By Inaction, Robert L. Glicksman

GW Law Faculty Publications & Other Works

Whether a federal statute preempts state law has important implications for the allocation of power between the federal and state governments. One aspect of preemption doctrine that has received relatively little scholarly attention is whether the federal government's failure to act is capable of preempting state law and, if so, when. In the regulatory context, Congress must first decide whether as a normative matter it should preempt state law despite its decision not to regulate activities regulated by states. Once Congress has done so, the courts may need to interpret federal legislation to determine whether Congress has decided to preempt …

Campaign Speech And Contextual Analysis, Miriam Galston

GW Law Faculty Publications & Other Works

Recent developments - such as a wave of FEC enforcement actions, the FEC's publication of its case by case approach to determining political committee status, and the Supreme Court's decision in FEC v. Wisconsin Right to Life - have made it necessary to reconsider the kinds of campaign finance reforms desirable and constitutionally permissible. This Article examines the proposition that, if section 527 groups and groups exempt under section 501 of the Internal Revenue Code are part of a network of commonly managed organizations, then the FEC should decide whether they need to register as political committees under the Federal …

A Concise Guide To The Federalist Papers As A Source Of The Original Meaning Of The United States Constitution, Gregory E. Maggs

GW Law Faculty Publications & Other Works

Many lawyers, judges, law clerks, and legal scholars feel unprepared to make or evaluate claims about the original meaning of the Constitution based on the Federalist Papers. The typical law school curriculum acknowledges the importance of the Federalist Papers - usually by assigning Supreme Court cases which cite them - but does not treat the essays in depth. As a result, many law students and graduates still need accessible information about the creation, content, and distribution of the essays, manageable summaries of the theories under which the Federalist Papers might provide evidence of the original meaning, and instruction on possible …

A Complaint About Payment Law Under The U.C.C.: What You See Is Often Not What You Get, Gregory E. Maggs

GW Law Faculty Publications & Other Works

In this Essay, Professor Maggs observes that many provisions of U.C.C. Articles 3, 4, 4A, and 5 are misleading. Although the provisions express certain rules, these rules often actually do not apply because the parties have waived them, because the parties have no practical way to enforce them, or because they are predicated on unrealistic assumptions. Professor Maggs laments that this discrepancy between what the U.C.C. says and reality may have deceived the state legislatures that voted to enact the U.C.C., that it may impose costs on businesses and consumers, and that it clearly hinders the education of lawyers and …

The Danger Of Underdeveloped Patent Prospects, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

Commentators have long recognized that much of the work of commercializing an invention occurs after a patent issues. They have not recognized, however, that by the time market conditions make commercialization potentially attractive, the remaining patent term might be sufficiently short such that a patentee will not develop an invention to the extent that the patentee would if more patent term remained. This concern about patent underdevelopment provides a counterweight to patent prospect theory, which urges that patents be issued relatively early in the invention process. While the patent system reduces this risk by requiring a substantial degree of achievement …

A Collective Action Perspective On Ceiling Preemption By Federal Environmental Regulation: The Case Of Global Climate Change, Robert L. Glicksman, Richard E. Levy

GW Law Faculty Publications & Other Works

In an era of regulatory skepticism, proponents of regulation in general and environmental regulation in particular face a number of new political and legal hurdles, particularly at the federal level. Frustrated with federal inaction or weak federal regulation, it is increasingly common for states and local governments to adopt environmental laws that seek to provide greater environmental protection. The critical question is when federal environmental law provides a ceiling, preempting such state regulatory programs. In this article, which is part of a forthcoming symposium on federal preemption in the Northwestern Law Review, Professors Glicksman and Levy develop a framework for …

The Future Of Reputation: Gossip, Rumor, And Privacy On The Internet, Daniel J. Solove

GW Law Faculty Publications & Other Works

This is the complete text of Daniel J. Solove's book, THE FUTURE OF REPUTATION: GOSSIP, RUMOR, AND PRIVACY ON THE INTERNET (Full Text) (Yale University Press, October 2007).

Teeming with chatrooms, online discussion groups, and blogs, the Internet offers previously unimagined opportunities for personal expression and communication. But there's a dark side to the story. A trail of information fragments about us is forever preserved on the Internet, instantly available in a Google search. A permanent chronicle of our private lives - often of dubious reliability and sometimes totally false - will follow us wherever we go, accessible to friends, …

The Many Faces Of Darlene Jespersen, Michael Selmi

GW Law Faculty Publications & Other Works

This essay was written for a symposium on the case Jespersen v. Harrah's Operating Co., in which Darlene Jespersen challenged Harrah's policy that required its female employees to wear makeup. In this essay, I explore the applicable case law, focusing specifically on the emerging law of sexual stereotyping to explain why the law was unwilling to recognize Jespersen's claim. In addition, I suggest that Jespersen's case is symptomatic of the way in which we have come to expect too much both from work and from courts. The workplace is typically not a place to express our identities and the fact …

Technology And Pornography, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

Over the past decade, legislators and industry players have attempted to employ technology to restrict the availability to minors of sexually-themed Internet content. Legislative efforts have relied on adult verification and software filtering technology. The constitutionality of such schemes generally depends on the level of sophistication, efficacy, and deployment of adult verification technology, the burdens that the required use of such technology imposes on content providers and Internet end users, and availability of less restrictive but equally effective alternatives for achieving the government's interest. In the case of both the CDA and COPA, challengers pointed to the less restrictive alternative …

'Impeaching' Cooperating Witnesses, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

This article, discussing trial tactics, considers the scenario in which the government seeks to elicit testimony from a witness, involved in the criminal activity, that has entered into a plea agreement; the defendant offers to stipulate that the defense will make no effort to impeach the witness through the use of the plea agreement and moves to exclude it from evidence; yet the prosecutor insists upon using the agreement. The article discusses United States v. Richardson, 421 F.3d 17 (1st Cir. 2005), and United States v. McNeill, 728 F.2d 5 (1st Cir. 1984), and concludes that there is no sensible …

Cultural Convergence: Interest Convergence Theory Meets The Cultural Defense?, Cynthia Lee

GW Law Faculty Publications & Other Works

Much has been written about the so-called cultural defense or, more accurately, the proffer of cultural evidence by a criminal defendant seeking to mitigate a charge or sentence. Many scholars support the admission of cultural evidence, but argue it should be limited to cases where such evidence is used to negate the mens rea element of the charged offense. Others feel that the admission of cultural evidence violates the principle of equal protection and favors immigrant and minority defendants over American defendants, and therefore the practice should be sharply circumscribed. Recently, a few legal scholars have issued calls for recognition …

Toward A 'New' New Haven School Of International Law?, Laura T. Dickinson

GW Law Faculty Publications & Other Works

We are currently in an era when the divergent methodologies of international law scholarship and the very idea that international norms might play a useful role are hotly contested. The debate about international law's impact, relevance, and role in the world has become increasingly intense as a particular version of rational choice theory, dressed up as non-normative empirical political science, has sought to advance a crabbed view of international law and to limit its influence. Scholars adhering to this view have argued that nation-state self-interest both is and should be the primary reason for forming and enforcing international law; that …

The First Amendment As Criminal Procedure, Daniel J. Solove

GW Law Faculty Publications & Other Works

This Article explores the relationship between the First Amendment and criminal procedure. These two domains of constitutional law have long existed as separate worlds, rarely interacting with each other despite the fact that many instances of government information gathering can implicate First Amendment freedoms of speech, association, and religion. The Fourth and Fifth Amendments used to provide considerable protection for First Amendment interests, as in the famous 1886 case Boyd v. United States, in which the Supreme Court held that the government was prohibited from seizing a person's private papers. Over time, however, Fourth and Fifth Amendment protection has shifted, …

Beyond Invisibility: Afro-Argentines In Their Nation's Culture And Memory, Robert J. Cottrol

GW Law Faculty Publications & Other Works

This essay examines recent works on the history and culture of Afro-Argentines. It discusses why the study of Afro-Argentines has traditionally been an underexamined topic by scholars specializing in Argentina and why there has been a recent renewal of interest in the topic. Essay explores influence of Africans and Afro-Argentines on Argentine culture and the question of the so-called disappearance of the Afro-Argentines.

Nature In The Bible, Dinah L. Shelton

GW Law Faculty Publications & Other Works

The devotion of Alex Kiss to the environment and its legal protection must be understood as inextricably intertwined with his Christian faith. Taught and inspired by his father's work for the Protestant Church in Hungary, he developed a love of creation and sense of responsibility towards it. Not long ago, he made a presentation on environmental protection and the Book of Revelation, for an anniversary celebration of St. John's apocalyptic vision. It is with this background in mind that the following essay was written (in 1998) in honor of and as a gift to Alex. It attempts to bring together …

Evolving Geneva Convention Paradigms In The 'War On Terrorism': Applying The Core Rules To The Release Of Persons Deemed 'Unprivileged Combatants', Sean D. Murphy

GW Law Faculty Publications & Other Works

The purpose of this essay, written in late 2006, is to take stock of the current application of the Geneva Conventions in the global "war on terrorism," including interpretations recently taken by the U.S. Supreme Court in the Hamdan case. The Geneva Conventions and the laws of war more generally comprise a sophisticated regulatory regime whose rules can and should be closely analyzed by lawyers. Yet, like all law, the inevitable imprecision in the rules presents opportunities for governments to exploit gray areas so as to augment governmental authority, and to avoid sensible interpretations that will protect individuals from overreaching …

How The United States Might Justify A Preemptive Strike On A Rogue Nation's Nuclear Weapon Development Facilities Under The U.N. Charter, Gregory E. Maggs

GW Law Faculty Publications & Other Works

This essay addresses a legal question: "Under the United Nations Charter, how might the United States justify a preemptive strike on a rogue nation's nuclear weapon development facilities?" The essay answers this question by arguing that the United States would not have to rely on controversial theories like "self-defense in response to an imminent attack" or "anticipatory self-defense." On the contrary, as this essay demonstrates with numerous recent and widely-publicized examples, the nations that the United States most likely would strike, Iran and North Korea, constantly are engaging in conventional armed attacks and other aggression against allies of the United …

Conflicts Of Interest And Corporate Governance Failures At Universal Banks During The Stock Market Boom Of The 1990s: The Cases Of Enron And Worldcom, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

The re-entry of commercial banks into the securities business transformed U.S. financial markets during the 1990s. The Gramm-Leach-Bliley Act of 1999 (GLBA) removed most of the legal barriers that had separated commercial and investment banking since 1933. GLBA allows commercial banks to become universal banks by affiliating with securities firms and insurance companies. In large part, GLBA ratified the securities underwriting powers that commercial banks gained during the 1990s, based on a series of orders issued by federal regulators and federal courts.

By 2000, the top ten global underwriters of securities included three U.S. banks, three foreign banks, and four …

Deep Purple: Religious Shades Of Family Law, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

"Deep Purple" examines the impact of religion on the politics and jurisprudence of abstinence education. Abstinence education is one of the many locations (issues) in the contemporary culture wars between red and blue state values. Families who live in red and blue states are experiencing divergent life patterns, and religion affects the development of these patterns. Frequency of church attendance has been tied to likelihood of marriage, and, as this paper shows, has been profoundly influential in approaches to teen sexuality. Religion decreases the opportunity for dialogue and compromise on these issues because people use underlying values - such as …

Social Security And Government Deficits: When Should We Worry?, Neil H. Buchanan

GW Law Faculty Publications & Other Works

In this Article, I critically examine the assumption that the Social Security system faces a financing crisis and that the government can avert the crisis only by acting now to cut benefits or to raise taxes. The best conclusion we can draw from the current evidence is that the system is not doomed and that it is not necessary to institute immediate changes. We should, of course, continue to monitor the situation closely to determine whether future changes become necessary. This conclusion is further strengthened by the likelihood that any changes the government makes to the Social Security system today …

Red Families V. Blue Families, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

The "culture wars," as they play out in high profile Supreme Court decisions and legislative fights over abortion and same-sex marriage, are first and foremost about family values. Central to these differences - and the focus of the article - is the fact that different families in different parts of the country are leading different lives. The one clear, organizing principle that distinguishes the two systems: age of family formation. The defining characteristic of what we term the "new middle class morality" is delay in family formation until the late twenties or early thirties. This new morality, which correlates more …

Behavioral Biology, The Rational Actor Model, And The New Feminist Agenda, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

In this paper, we will incorporate gender consciousness into critiques of the rational actor model by revisiting Carol Gilligan's account of moral development. Economics itself, led by the insights that have come from game theory, is reexamining trust, altruism, reciprocity and empathy. Behavioral economics, defined as "the combination of psychology and economics that investigates what happens in markets in which some of the agents display human limitations and complications," further explores the implications of a more robust conception of human motivation. We argue that the most likely source for a comprehensive theory will come from the integration of behavioral economics …

Trade And The Environment In The Wto, Steve Charnovitz

GW Law Faculty Publications & Other Works

The linkage between trade and the environment stands out as an important challenge in global economic governance. Over the past decade, the WTO devoted considerable attention to this issue and included it on the agenda of the Doha Round. In parallel, the jurisprudence on trade and the environment has experienced significant advances. This study provides an overview of the main institutional changes at the WTO and of the developments in the jurisprudence most relevant to the interaction between the environment and trade. Specifically, this study focuses on GATT Article XX and takes note of many positive (and a few negative) …

A New Wto Paradigm For Trade And The Environment, Steve Charnovitz

GW Law Faculty Publications & Other Works

This article provides an overview of the “trade and environment” interface in the WTO and proposes a new paradigm for making progress. The article reviews recent developments in WTO adjudication and negotiations and examines the institutional interplay of international trade and biosafety with particular reference to the Cartagena Protocol on Biosafety. The article also points to several pro-environmental initiatives that could be taken by the WTO.

Part I provides a brief review of the history of environment linkage in trade policy, beginning in 1923. Part II offers a general survey of WTO rules and policies with implications for the environment. …

Comment Letter To The U.S. Treasury Department Concerning The Regulatory Structure For Financial Institutions, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

This comment letter was submitted to the U.S. Treasury Department in connection with that Department's review of proposals for changes in the regulatory structure for financial institutions. The comment letter presents the following policy recommendations: (1) the thrift charter should be eliminated, existing thrifts should be required to convert into banks, and the Office of Thrift Supervision should be merged with the Office of the Comptroller of the Currency (OCC); (2) the dual banking system should be preserved and strengthened in order to promote innovation in banking regulation and to support the community bank sector; (3) at least one federal …

Towards A Right To Privacy In Transnational Intelligence Networks, Francesca Bignami

GW Law Faculty Publications & Other Works

Transnational intelligence networks have emerged as an essential tool for combating international terrorism and criminal activity. As with domestic intelligence-gathering, they raise a number of privacy concerns: the risk of false information, the danger that intelligence will be used for illegitimate purposes, and the burden placed on human dignity and individual autonomy by free-wheeling data gathering. Transnational networks, however, exacerbate these privacy problems due to the dispersed nature of government authority and the difficulty of ensuring compliance with privacy duties by each node in the network. This article illustrates the dangers of transnational intelligence sharing with the case of Maher …