Law Commons^™

The Justice System And Domestic Violence: Engaging The Case But Divorcing The Victim, Laurie S. Kohn

GW Law Faculty Publications & Other Works

This Article examines the development of an inverse relationship in the legal system between the concern accorded domestic violence cases and the concern accorded domestic violence victims. The Article analyzes both philosophical approaches and concrete mechanisms currently used by the justice system to address domestic violence. Concluding that the current system- though it signals a serious institutional attitude toward addressing domestic violence – has failed to increase victim safety, this Article advocates for a paradigm shift in the legal system’s approach to domestic violence.

Specifically, the Article analyzes the viability of a paradigm shift in the philosophy behind current policies …

Soft Law, Dinah L. Shelton

GW Law Faculty Publications & Other Works

International law is a largely consensual system, consisting of norms that states in sovereign equality freely accept to govern themselves and other subjects of law. International law is thus created by states, using procedures that they have agreed are legislative, that is, through procedures identified by them as the appropriate means to create legally-binding obligations. In contrast to the agreed sources listed in the International Court of Justice (ICJ) Statute, state practice in recent years, inside and outside international organizations, increasingly has placed normative statements in non binding political instruments such as declarations, resolutions, and programs of action, and has …

The Ecology Of Corporate Governance In China, Donald C. Clarke

GW Law Faculty Publications & Other Works

The substantive norms of Chinese corporate governance have been studied extensively inside and outside China. Yet much less attention has been paid to the Chinese institutional environment that determines whether and how far those norms will be made meaningful. While complaints about general lack of enforcement are common, less common are analyzes that concretely tie institutional capacity to specific enforcement problems. This article aims to fill that gap. It surveys a number of state and non-state channels for the enforcement of corporate governance rules and standards in China, from markets to regulatory bodies, looking at the specific capacities of each. …

Federalism And International Law Through The Lens Of Legal Pluralism, Paul Schiff Berman

GW Law Faculty Publications & Other Works

Sovereignty has long been the dominant lens through which we view both federalism and international law. From the perspective of sovereignty, both federalism and international law are primarily about drawing clear boundaries and demarcations between separate, autonomous power centers. Recently, however, a group of scholars have embraced a more pluralist approach to both American federalism and international law. They have touted the important virtues of jurisdictional redundancy and inter-systemic governance models in which multiple legal and regulatory authorities weigh in regarding the same acts and actors. And they argue that such jurisdictional redundancies are not just a necessary accommodation to …

Making The Corporation Safe For Shareholder Democracy, Lisa M. Fairfax

GW Law Faculty Publications & Other Works

This article considers the effect that increased shareholder activism may have on non-shareholder corporate stakeholders such as employees and consumers. One of the most outspoken proponents of increased shareholder power has argued that such increased power could have negative repercussions for other corporate stakeholders because it would force directors to focus on profits without regard to other interests. This article critically examines that argument. The article acknowledges that increased shareholder power may benefit some stakeholders more than others, and may have some negative consequences. However, this article demonstrates that shareholders not only have interests that align with other stakeholders, but …

Biased Assimilation, Polarization, And Cultural Credibility: An Experimental Study Of Nanotechnology Risk Perceptions, Donald Braman, Dan M. Kahan, Paul Slovic, John Gastil, Geoffrey L. Cohen, Douglass A. Kysar

GW Law Faculty Publications & Other Works

We present the results from the second in a series of ongoing experimental studies of public perceptions of nanotechnology risks. Like the first study, the current one found that members of the public, most of whom know little or nothing about nanotechnology, polarize along cultural lines when exposed to information about it. Extending previous results, the current study also found that cultural polarization of this sort interacts with the perceived cultural identities of policy advocates. Polarization along expected lines grew even more extreme when subjects of diverse cultural outlooks observed an advocate whose values they share advancing an argument they …

The Self-Defensive Cognition Of Self-Defense, Donald Braman, Dan M. Kahan

GW Law Faculty Publications & Other Works

Why do certain self-defense cases - ones, e.g., involving battered women who kill their sleeping abusers, or beleaguered commuters who shoot panhandling minority teens - provoke intense political conflict? The conventional and seemingly obvious answer is that people judge such cases in a politically partisan fashion. This paper, however, suggests a subtler and more complex explanation. Social psychologists have shown that individuals resolve factual ambiguities in a manner supportive of their defining values, both to minimize dissonance and to protect their connection to others who share their commitments. This form of self-defensive cognition, it is submitted, shapes individuals' perceptions of …

Intellectual Property For Market Experimentation, Michael B. Abramowicz, John F. Duffy

GW Law Faculty Publications & Other Works

Intellectual property protects investments in the production of information, but the literature on the topic has largely neglected one type of information that intellectual property might protect: information about the market success of goods and services. A first entrant into a market often cannot prevent other firms from free-riding on information about consumer demand and market feasibility. Despite the existence of some first-mover advantages, the incentives to be the first entrant into a market may sometimes be inefficiently low, thereby giving rise to a net first-mover disadvantage and discouraging innovation. Intellectual property may counteract this inefficiency by providing market exclusivity, …

Putting Missouri V. Holland On The Map, Edward T. Swaine

GW Law Faculty Publications & Other Works

This paper, published as part of symposium on Missouri v. Holland, explores how the circumstances of that case relate to modern criticisms of Congress' Necessary and Proper power and the doctrine of non-self-executing treaties. Focusing on some of the original concerns - for example, the need for further domestic implementation by Canada (and not, to the same degree, by the United States), the need for spending legislation, and the provision of criminal penalties - unsettles not only the understanding of the Supreme Court's decision, but also more recent critiques of the doctrines with which it has long been associated.

Why Do Women Lawyers Earn Less Than Men? Parenthood And Gender In A Survey Of Law School Graduates, Neil H. Buchanan

GW Law Faculty Publications & Other Works

Using a dataset of survey responses from University of Michigan Law School graduates from the classes of 1970 through 1996, I find that fathers tend to receive higher salaries than non-fathers (a "daddy bonus"). In addition, mothers earn less than non-mothers (a "mommy penalty"). There is also some statistical support for the inference that there is a penalty associated purely with gender (women earning less than men, independent of parenthood), another result that is unique to the literature. Analyzing full- or part-time status as well as work hours also suggests a key difference between women and men. Those who take …

Necessary Subjects: The Need For A Mandatory National Donor Gamete Registry, Naomi R. Cahn

GW Law Faculty Publications & Other Works

This brief article calls for a mandatory national donor gamete registry. It first discusses the history of secrecy in the adoption context before turning to issues involving confidentiality in the donor context. After analyzing the issues involved in maintaining the secrecy of donor gametes, the article ultimately recommends the establishment of a national information registry, similar to that in place in numerous other countries, to keep track of children both through donor egg, embryo, and sperm, as well as the identities of the gamete providers. Participation in the registry would be mandatory for anyone involved in supplying donor gametes. Once …

Revitalizing The U.S. Compliance Power, Steve Charnovitz

GW Law Faculty Publications & Other Works

This essay provides a commentary on Medellin v. Texas, where the Supreme Court invalidated a presidential memorandum directing states to comply with a judgment of the International Court of Justice. As a consequence of Medellin, the president and the courts may now at times be powerless to achieve compliance with a U.S. treaty. This essay considers how the U.S. compliance power can be revitalized after Medellin. Part I critiques the approach taken by the Court in Medellin and shows that there was an alternative interpretation of the United Nations Charter and the U.S. Constitution. Part II considers the implications of …

Worker Participation And Social Dialogue At The Work Place Level In The United States, Charles B. Craver

GW Law Faculty Publications & Other Works

This paper discusses the right of private sector employees to influence management decisions that may affect their working conditions. It explores the ability of workers represented by labor organizations to deal with their employers through the collective bargaining process, and through contractual grievance-arbitration procedures with respect to issues arising under current agreements. It notes the decline of unions over the past fifty years, with union membership declining from 35% in the late 1950s to under 7% today. In the absence of formal union representation, employees have no formal right to affect management decisions, even though over 85% of surveyed employees …

The Work-Family Conflict: An Essay On Employers, Men And Responsibility, Michael Selmi

GW Law Faculty Publications & Other Works

This paper, prepared for a symposium held at the University of St. Thomas Law School, explores an issue that has been largely neglected in the work-family debate, namely why the burden should be on employers to change their practices rather than on men to change theirs. Many of the policy proposals designed to facilitate the balancing of work and family demands require employers to alter their practices by creating part-time work, providing paid leave, or devising ways to limit the penalties women face for taking extended leave. At the same time, the reluctance of men to change their behavior, which …

More Than One Cent For Tribute, Gregory E. Maggs

GW Law Faculty Publications & Other Works

This is a book review of Fred S. McChesney, Money for Nothing: Politicians, Rent Extraction & Political Extortion (Harvard University Press 1997).

Who Fears The Hpv Vaccine, Who Doesn't, And Why? An Experimental Study Of The Mechanisms Of Cultural Cognition, Donald Braman, Dan M. Kahan, Geoffrey L. Cohen, Paul Slovic, John Gastil

GW Law Faculty Publications & Other Works

The cultural cognition hypothesis holds that individuals are disposed to form risk perceptions that reflect and reinforce their commitments to contested views of the good society. This paper reports the results of a study that used the controversy over mandatory HPV vaccination to test the cultural cognition hypothesis. Although public health officials have recommended that all girls aged 11 or 12 be vaccinated for HPV - a virus that causes cervical cancer and that is transmitted by sexual contact - political controversy has blocked adoption of mandatory school-enrollment vaccination programs in all but one state. A multi-stage experimental study of …

Public Safety And The Right To Bear Arms, Robert J. Cottrol, Raymond T. Diamond

GW Law Faculty Publications & Other Works

On Tuesday November 20th, 2007 the United States Supreme Court granted certiorari in a case involving the District of Columbia's ban on handguns. The statute had been successfully challenged in the United States Court of Appeals for the District of Columbia Circuit on the grounds that it violated the Second Amendment's guarantee of "the right of the people to keep and bear arms." With its decision to grant certiorari, the Supreme Court entered a constitutional controversy from which it had been largely absent for nearly seventy years, the meaning and scope of the Second Amendment. That controversy, the debate over …

On The Importance To Economic Success Of Property Rights In Finance And Innovation, F. Scott Kieff

GW Law Faculty Publications & Other Works

This Essay surveys recent developments across the fields of finance and innovation to highlight some common themes concerning the importance of property rights to economic success. Society regularly makes choices when shaping the precise contours of the legal institutions that govern the behavior of market actors, often in response to high profile issues like the collapse of Enron and the patenting of life-saving AIDS drugs. Recognizing that no set of legal institutions or related enforcement mechanisms will be perfect, this Essay explores some particularly helpful institutional features based on property rights that too often are overlooked by policy makers and …

Sustainable Federal Land Management: Protecting Ecological Integrity And Preserving Environmental Principal, Robert L. Glicksman

GW Law Faculty Publications & Other Works

This article explores the application of the principles of sustainability to management of lands and resources under the jurisdiction of the U.S. Forest Service and the Bureau of Land Management. These two agencies operate a mandate to manage the resources under their control to achieve sustained yield. In this context, sustainability has operated to date primarily in an aspirational fashion, as a broad objective of public land management, rather than as a useful management tool or an enforceable constraint on agency management discretion. The article urges the adoption of amendments to the laws under which the Forest Service and the …

Rule 404(B) And Reversal On Appeal, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

This article discusses a strange case, United States v. Bell, 516 F.3d 432 (6th Cir. 2008), that illustrates the point that, if hard cases make bad law, strange cases sometimes produce surprising appellate decisions. The case began with a domestic violence call to the police, led to a consent search of a home and discovery of drugs and guns, and produced a conviction on drug and weapons charges. Despite the abuse of discretion standard of review and the usual deference appellate courts give to trial judge decisions with respect to the admissibility of uncharged crime evidence, the court of appeals …

The Future Of Nanotechnology Risk Perceptions: An Experimental Investigation Of Two Hypotheses, Donald Braman, Dan M. Kahan, Paul Slovic, John Gastil, Geoffrey L. Cohen

GW Law Faculty Publications & Other Works

This paper reports the results of an experiment designed to test competing conjectures about the evolution of public attitudes toward nanotechnology. The rational enlightenment hypothesis holds that members of the public will become favorably disposed to nanotechnology as balanced and accurate information about it disseminates. The cultural cognition hypothesis, in contrast, holds that members of the public are likely to polarize along cultural lines when exposed to such information. Using a between-subjects design (N = 1,862), the experiment compared the perceptions of subjects exposed to balanced information on the risks and benefits of nanotechnology to the perceptions of subjects exposed …

Foreign Corrupt Practices Act Fundamentals, Jessica Tillipman

GW Law Faculty Publications & Other Works

Foreign Corrupt Practices Act (FCPA) enforcement activity is currently at its highest level since enactment of the statute in 1977. There were more enforcement actions brought in 2007 than in the years from 2004 to 2006 combined. The message is clear - the U.S. Government is committed to FCPA compliance and there is no evidence enforcement activity will slow any time soon. This article provides a general overview of the FCPA, including a primer on the legislation’s core components: the antibribery prohibitions and the books and records provisions. The article also provides practical guidance with respect to the more challenging …

Net Neutrality, Free Speech, And Democracy In The Internet Age, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

Professor Nunziato's book explains why the growth of the Internet as the most open forum for free expression in history is now threatened by the privatization of the Internet, the gatekeeper control over expression exercised by a handful of corporate owners, and their power to censor what we say and read online. She sets forth how we got to this place and what must be done about it to guarantee meaningful free speech rights in the Internet age.

Interpreting The Americans With Disabilities Act: A Case Study In Pragmatic Judicial Reconstruction, Michael Selmi

GW Law Faculty Publications & Other Works

This article challenges the prevailing academic consensus regarding the Supreme Court's interpretation of the Americans With Disabilities Act ("ADA"). In a series of cases over the last decade, the Supreme Court has sharply limited the scope of the statute by narrowly defining what constitutes a disability, and most commentators have attributed the cases to a judicial backlash or a lack of empathy for the disabled. This article offers a counter narrative. Although the Supreme Court's interpretations have plainly narrowed the scope of the statute, and without regard to congressional intent, I suggest that the decisions are largely consistent with congressional …

Complex Litigation Lecture: The Adversary System And Modern Class Action Practice, Roger H. Trangsrud

GW Law Faculty Publications & Other Works

In modern class action practice, the class action device can enormously expand the availability of justice but can also cause substantial injustice to defendants and absent class members when improperly used. The latter is often the case because Rule 23 of the Federal Rules of Civil Procedure has come to be interpreted by the federal courts in ways that mask the proper criteria that should be used in deciding whether to certify a class action. Thus, Rule 23 needs a complete overhaul. First, Rule 23 should be amended to allow appeals as of right, not discretion, from orders granting or …

The Gay Panic Defense, Cynthia Lee

GW Law Faculty Publications & Other Works

In this article, I examine the use of gay panic defense strategies in the criminal courtroom. I argue that such strategies are problematic because they reinforce and promote negative stereotypes about gay men as sexual deviants and sexual predators. Gay panic defense strategies are also troubling because they seek to capitalize on unconscious bias in favor of heterosexuality which is prevalent in today's heterocentric society. Most critics of the gay panic defense have proposed that judges or legislatures should bar gay panic arguments from the criminal courtroom. I take a contrary position and argue that banning gay panic arguments from …

Rating Risk After The Subprime Mortgage Crisis: A User Fee Approach For Rating Agency Accountability, Jeffrey Manns

GW Law Faculty Publications & Other Works

This article argues that an absence of accountability and interconnections of interest between rating agencies and their debt issuer clients fostered a system of lax ratings that provided false assurances on the risk exposure of subprime mortgage-backed securities and collateralized debt obligations. It lays out an innovative, yet practical pathway for reform by suggesting how debt purchasers, the primary beneficiaries of ratings, may bear both the burdens and benefits of rating agency accountability by financing ratings through an SEC-administered user fee system in exchange for enforceable rights. The SEC user fee system would require rating agencies both to bid for …

Stemming The Tide Of Law Student Depression: What Law Schools Need To Learn From The Science Of Positive Psychology, Todd Peterson, Elizabeth Waters Peterson

GW Law Faculty Publications & Other Works

A growing body of literature shows that law students exhibit unique signs of psychological distress, including elevated levels of depression, stress, and anxiety. Law students also report significantly higher incidences of alcohol and drug abuse than their peers at other graduate schools. The article assesses the programs that 75 top law schools currently use to combat these alarming trends and finds that they are primarily reactive and that they do not sufficiently address the source or the scope of the problem. This article explores some of the ways in which positive psychology may be uniquely suited to address this student …

There Is A There There: How The Zippo Sliding Scale Has Destabilized The Structural Foundation Of Personal Jurisdiction Analysis, Catherine J. Ross

GW Law Faculty Publications & Other Works

In 1997, the Federal District Court for the Western District of Pennsylvania evaluated one in a line of emerging personal jurisdiction cases that raised the question of whether Internet-based contacts with citizens of the forum state can alone establish the defendant purposefully availed himself of the benefits and protections of the forum state. In this unlikely watershed case, Zippo Mfg. Co. v. Zippo Dot Com, the District Court wrangled with the new concept of purposeful availment through electronic contact with the forum state. The court viewed Zippo and its antecedents as components of a new body of personal jurisdiction law: …

Where Is Criminal Justice In This Presidential Year?, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

This article notes that throughout the presidential campaigns there has been little emphasis on criminal justice and few serious proposals by candidates for changing or improving the way in which the federal government enforces criminal law. There has been little discussion about the respective roles that the federal government and the states should play in law enforcement. The author calls for the next president to convene an inclusive national congress on criminal justice. He encourages the president to bring together prosecutors, defense counsel, judges, legislators, law enforcement, correctional officials, probation and parole officers, academics, victims advocacy groups, other public interest …