Law Commons^™

A Brief Illustrated Chronicle Of Retroactive Copyright Term Extension, Robert Brauneis

GW Law Faculty Publications & Other Works

At least since the Supreme Court’s 2003 decision in Eldred v. Ashcroft, it has been widely known that whenever Congress has extended copyright term, it has done so retroactively, granting the benefit of the extension to all works still under copyright on the effective date of the extension. However, I have never found succinct, complete tables and charts detailing the periods during which works received various copyright terms given the retroactive effect of all extension legislation. It is the modest aim of this article to provide that information, and to provide some examples of the operation of retroactive term extension. …

Transforming Document Recordation At The United States Copyright Office, Robert Brauneis

GW Law Faculty Publications & Other Works

For over 140 years, federal law has provided for recording of documents pertaining to copyright in one central location, at the Copyright Office and, before the Copyright Office was created as a separate unit, at the Library of Congress. Over that time, the copyright recordation system has supported a market for interests in and use of works of authorship by lowering the cost of obtaining information about ownership and by reducing unavoidable risks that threaten ownership. Yet the recordation system has not kept up with developments in technology and in business practices. This report, prepared while the author was serving …

Forget About It? Harmonizing European And American Protections For Privacy, Free Speech, And Due Process, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

No abstract provided.

Cryptoinsurance, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

The sharing economy has begun to make inroads in finance. Peer-to-peer lending is growing substantially in volume and in academic attention, though it remains less than a rounding error in comparison to more traditional sources of loans. Meanwhile, Congress passed the Jumpstart Our Business Startups ("JOBS") Act, which directed the Securities and Exchange Commission ("SEC") to create regulations allowing crowdfunding in at least some circumstances. The SEC, as of yet, has published only proposed rules, ignoring a congressional deadline, but state regulators have begun to create their own rules for intrastate crowdfunding. Yet, one area of finance has resisted even …

First Report Of The Special Rapporteur On Crimes Against Humanity, Sean D. Murphy

GW Law Faculty Publications & Other Works

In the field of international law, three core crimes generally make up the jurisdiction of international criminal tribunals: war crimes; genocide; and crimes against humanity. Only two of these crimes (war crimes and genocide) are the subject of a global treaty that requires States to prevent and punish such conduct and to cooperate among themselves toward those ends. By contrast, there is no such treaty dedicated to preventing and punishing crimes against humanity.

Yet crimes against humanity may be more prevalent than either genocide or war crimes. Such crimes may occur in situations not involving armed conflict and do not …

Food And Condiments For The Twenty-First Century: Business, Science, And Policy, Lewis D. Solomon

GW Law Faculty Publications & Other Works

We are in the midst of a paradigm shift in the food industry. People are more closely examining the impact of food not only on their health and wellness but also on the environment. Some are also concerned about the relationship between food and animal welfare as well as resource scarcities. Big food conglomerates face competition from upstart rivals. The for-profit companies profiled in this work, Nu-tek Food Science, Lyrical Foods, Hampton Creek, Beyond Meat, Impossible Foods, Modern Meadow, and Rosa Labs, are leading the reinvention of condiments and food. Although picking winners and also-rans represents a difficult endeavor, some …

An International Legal Framework For Se4all: Human Rights And Sustainable Development Law Imperatives, Robert L. Glicksman

GW Law Faculty Publications & Other Works

Governments around the world recognize the link between human development and access to safe, secure, and affordable sources of energy. Nevertheless, many people have access to only rudimentary and inadequate energy sources, depriving them of opportunities for economic development and creating serious health risks. Even in countries in which access to energy services is adequate, the provision of those services has both health and environmental effects. In particular, the production of energy using fossil fuels generates greenhouse gases that contribute significantly to climate disruption, which is likely to create disproportionate risks to the same undeveloped nations already suffering from a …

The Identification Of Customary International Law And Other Topics: The Sixty-Seventh Session Of The International Law Commission, Sean D. Murphy

GW Law Faculty Publications & Other Works

The International Law Commission held its sixty-seventh session in Geneva from May 4 to June 5, and from July 6 to August 7, 2015, under the chairmanship of Narinder Singh (India). Notably, the Commission’s drafting committee completed a full set of sixteen draft conclusions on the topic of “identification of customary international law,” paving the way for those conclusions with commentaries to be approved by the Commission on first reading in 2016.

Additionally, the Commission provisionally adopted with commentaries initial draft guidelines on “protection of the atmosphere” and initial draft articles on “crimes against humanity,” as well as one further …

Moving Targets: Obergefell, Hobby Lobby, And The Future Of Lgbt Rights, Ira C. Lupu

GW Law Faculty Publications & Other Works

The recognition of marriage equality in Obergefell v. Hodges, just one year after Burwell v. Hobby Lobby Stores, Inc. broadened the law of religious freedom, highlights the potential collision course of these movements. This paper is an attempt to navigate the waters where such a collision is most likely. As LGBT rights grow, the choice between generic religious privilege, typified by the Religious Freedom Restoration Act (RFRA), and specific religious accommodations, such as the treatment of religious non- profits in federal law, will define the terms of the conflict. Part I addresses current federal law, and focuses on the extent …

The Return Of Lochner, Thomas Colby, Peter J. Smith

GW Law Faculty Publications & Other Works

For a very long time, it has been an article of faith among liberals and conservatives alike that Lochner v. New York was obviously and irredeemably wrong. Lochner is one of only a few cases that constitute our “anticanon,” universally reviled by the legal community as the “worst of the worst.” Our first claim in this Article is that the orthodoxy in modern conservative legal thought about Lochner is on the verge of changing. We believe that conservatives are ready, once again, to embrace Lochner— although perhaps not in name—by recommitting to some form of robust judicial protection for economic …

Coercive Vs. Cooperative Enforcement: Effect Of Enforcement Approach On Environmental Management, Robert L. Glicksman, Dietrich Earnhart

GW Law Faculty Publications & Other Works

A spirited debate explores the comparative merits of two different approaches to the enforcement ofregulatory law: the coercive approach, which emphasizes the deterrence of noncompliance throughinflexibly imposed sanctions, and the cooperative approach, which emphasizes the inducement of com-pliance through flexibility and assistance. Both scholarly and policymaking communities are interestedin this topic of enforcement approach within the realms of finance, tax compliance, occupational safety,food and drug safety, consumer product safety, and environmental protection. To inform this debate,our study explores enforcement of environmental protection laws where the debate has been especiallyspirited yet lacking in much empirical evidence. Specifically our study empirically analyzes …

Autonocoin: A Proof-Of-Belief Cryptocurrency, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

This paper proposes a self-governing cryptocurrency, dubbed Autonocoin. Cryptocurrency owners play formal tacit coordination games by making investments recorded on the block chain. Such investments represent bets about the focal point resolution of normative issues, such as whether a proposed change to Autonocoin should occur. The game produces a result that resolves the issue. With a typical cryptocurrency, the client software establishes conventions that ultimately lead to the identification of the authoritative block chain. Autonocoin completes a circle by making transactions on the block chain determine the authoritative client software. The distributed consensus mechanism embodied by formal tacit coordination games, …

Class, Politics, Gender And The Marriage Divide In The United States, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

In this article we use the idea of the 'marriage divide' to describe the transformation of the family to meet the needs of the information economy and the divisions that the transformation has created. In doing so, we emphasise three types of 'marriage divides' in the United States: class and racial, ideological and political, and family law/gender ideology.

Advocate Yes; Witness No, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

This article examines United States v. Rangel-Guzman, 752 F.3d 1222 (9th Circ. 2014) to illustrate the possibility of a lawyer violating Model Rule of Professional Conduct 3.7 without ever becoming an official witness.

Authentication And Hearsay: Which Trumps?, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

This article addresses the relationship between two federal rules of evidence: Rules 104(a) and 104(b) and which standards a trial judge should apply in admitting hearsay evidence when its authentication is in question. Focusing on United States v. Harvey, 117 F.3d 1044 (7th Circ. 1997) and a simple hypothetical, the article concludes that evidence must be authenticated under Rule 104(b) as well as satisfying the hearsay rule and Rule 104(a).

Someone Must Be Lying, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

There is no rule that governs all cases when determining whether it's permissible for prosecutors to argue in closing that the jury would have to find that police officers lied in order to find a defendant not guilty. This article examines the issue of the credibility of law enforcement officers in United States v. Ruiz, 710 F.3d 1077 (9th Cir. 2013), United States v. Wilkes, 662 F.3d 524 (9th Cir. 2011), and United States v. Tucker, 641 F.3d 1110 (9th Cir. 2011).

Johnson’S Differentiation Theory: Is It Really Empirically Supported?, Joan S. Meier

GW Law Faculty Publications & Other Works

Michael Johnson’s differentiation of ‘‘types’’ of domestic violence has had a significant impact on courts and providers, in part because of its claim to an empirical basis. Unfortunately, the label ‘‘situational couple violence’’ has already been used by judges and evaluators to minimize abuse claims in custody cases. Johnson’s repeated assertion that SCV is the most common form of domestic violence reinforces the marginalizing of domestic violence. But what do his data actually show? Here Professor Meier takes a close look at the research Johnson relies on and finds that it fails to prove his thesis. Rather, the data suggest …

An Overview Of Privacy Law, Daniel J. Solove, Paul M. Schwartz

GW Law Faculty Publications & Other Works

Chapter 2 of PRIVACY LAW FUNDAMENTALS provides a brief overview of information privacy law – the scope and types of law. The chapter contains an historical timeline of major developments in the law of privacy and data security.

PRIVACY LAW FUNDAMENTALS is a distilled guide to the essential elements of U.S. data privacy law. In an easily-digestible format, the book covers core concepts, key laws, and leading cases.

Professors Daniel Solove and Paul Schwartz clearly and concisely distill all relevant information about privacy law into this short volume. PRIVACY LAW FUNDAMENTALS is designed to be like Strunk and White’s Elements …

New Mechanisms For Punishing Atrocities Committed In Non-International Armed Conflicts, Sean D. Murphy

GW Law Faculty Publications & Other Works

Three core crimes have emerged as a part of the jurisdiction of international criminal tribunals: war crimes; genocide; and crimes against humanity. Only two of these crimes (war crimes and genocide) have been addressed through a global treaty that requires States to prevent and punish such conduct and to cooperate among themselves toward those ends. Yet crimes against humanity may be more prevalent than either genocide or war crimes, and are a recurrent feature in non-international armed conflicts (NIACs).

As such, a global convention on prevention, punishment, and inter-State cooperation with respect to crimes against humanity appears to be a …

Consume Or Invest: What Do/Should Agency Leaders Maximize?, William E. Kovacic, David A. Hyman

GW Law Faculty Publications & Other Works

In the regulatory state, agency leaders face a fundamental choice: should they “consume” or should they “invest?” “Consume” means launching high profile cases and rule-making. “Invest” means developing and nurturing the necessary infrastructure for the agency to handle whatever the future may bring. The former brings headlines, while the latter will be completely ignored. Unsurprisingly, consumption is routinely prioritized, and investment is deferred, downgraded, or overlooked entirely. This essay outlines the incentives for agency leadership to behave in this way and explores the resulting agency costs (pun intended). The U.S. Federal Trade Commission’s health care portfolio provides a useful case …

Can't Anyone Here Play This Game? Judging The Ftc's Critics, David A. Hyman, William E. Kovacic

GW Law Faculty Publications & Other Works

The conventional wisdom is that the FTC was the governmental equivalent of a leper colony prior to 1969, and its credibility and reputation were restored only by the adoption of the wise recommendations in the 1969 ABA Report. There is no question that the FTC deserves plenty of criticism for its pre-1969 performance. It is also beyond doubt that there has been a dramatic turn-around in the intervening forty-five years, as the FTC adopted the recommendations in the 1969 Report. But, before we simply genuflect at the wisdom of those responsible for the ABA Report and the inherent virtue of …

Gpa Accession: Lessons Learned On The Strengths And Weaknesses Of The Wto Government Procurement Agreement, Christopher R. Yukins, Johannes S. Schnitzer

GW Law Faculty Publications & Other Works

Many member nations of the World Trade Organization (WTO) have joined the Government Procurement Agreement (GPA), a plurilateral agreement which aims to open public procurement markets. Joining the agreement reflects a commitment to international free trade, and to the rule of law in public procurement. A revised version of the GPA entered into force in 2014, and incorporated many amendments intended to make it easier for developing nations join the GPA. Among other things, the revised GPA now allows developing nations acceding to the GPA to open their public procurement markets more slowly, various transitional measures. This article reviews those …

The Puzzle Of Alfarabi's Parallel Works, Miriam Galston

GW Law Faculty Publications & Other Works

Scholars disagree about the correct interpretation of Alfarabi’s Political Regime and Virtuous City, treatises that have striking similarities, yet notable differences. For some, the treatises encapsulate Alfarabi’s philosophy; for others, they express only politically salutary opinions. Both interpretations fail to explain why he wrote parallel works. If both reflect Alfarabi’s genuine philosophic doctrines, why did he compose separate but parallel treatises, both written when his philosophy was mature? Alternatively, if the treatises are political or rhetorical, why did Alfarabi compose two versions, and why did he choose these two accounts rather than others? To answer these questions, I discuss several …

Parsing The Visual Rhetoric Of Office Dress Codes: A Two-Step Process To Increase Inclusivity And Professionalism In Legal-Workplace Fashion, Karen Thornton

GW Law Faculty Publications & Other Works

Legal employers expect attorneys in their offices to use the ethos of personal appearance to project an image of competence to clients. This expectation is largely unspoken, however, and polling and anecdotal evidence alike show that in today’s workplace, employers are frustrated with the level of professionalism demonstrated by new employees. The goal of this article is to encourage open conversations about workplace fashion as it relates to an attorney’s professional identity. It is in both the employer’s and employee’s interests to clarify employer expectations and empower new members of the legal profession to adopt a personal sense of style …

The Import Of History To Corporate Law, Dalia Tsuk Mitchell

GW Law Faculty Publications & Other Works

This article explores the ways in which history can be useful in teaching directors’ duties, specifically the duty to monitor. I argue that the Delaware courts’ changing views of directors’ duties reflect a broader shift—from a corporate law grounded in business practice to one anchored in, and ultimately trumped by, modern finance theory. As the article explores the influence of business practice in the mid-century years, law’s emphasis on structure and process in the 1970s and 1980s, and ultimately the triumph of finance over law in the 1990s, it also discusses how the rhetoric of care, business judgment, and good …

The Price Of Paid Prioritization: The International And Domestic Consequences Of The Failure To Protect Net Neutrality In The United States, Arturo J. Carrillo, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

This article examines the international trade and human rights obligations of the United States as they relate to net neutrality to determine the extent to which the approach adopted by the Federal Communications Commission (FCC) in 2015 to promote an open Internet complies with those obligations. In March of that year, the FCC adopted new rules to promote and protect an open Internet that, inter alia, reclassified broadband providers as common carriers subject to nondiscrimination obligations and codified strong net neutrality protections. The authors argue that the 2015 FCC Order, contrary to its predecessors, largely meets the requirements of the …

Book Review: Casting Off The Canon: Family Law Reimagined, Laurie S. Kohn

GW Law Faculty Publications & Other Works

Jill Hasday's book, Family Law Reimagined, offers a clear-eyed vision of what family law is, what it is not, and where it might be headed. Hasday considers family law's canon-the set of principles by which we have come to characterize family law-and then debunks the canon by methodically setting forth each notion and illustrating its inaccuracies or limitations. In doing so, Hasday urges the reader to clear the noise of the canon and to see the law in all its messy inconsistencies and shortcomings.

Hobby Lobby And The Dubious Enterprise Of Religious Exemptions, Ira C. Lupu

GW Law Faculty Publications & Other Works

The experience of the past fifty years, culminating in Burwell v. Hobby Lobby Stores, Inc., is grounds for deep skepticism of any sweeping regime of religious exemptions. Part I of this essay locates the problem in the current legal and cultural moment, which includes religious objections to employer-provided contraceptive care for women, and religion-based refusals by wedding vendors and others to facilitate the celebration of same sex marriages. Part II broadens the time frame to analyze the regimes of religious exemption – federal and state, constitutional and statutory -- in which such disputes play out. Such regimes will tend …

Religious Exemptions And The Limited Relevance Of Corporate Identity, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

Corporate religious liberty appears to be on the rise. The Supreme Court’s unanimous decision in Hosanna Tabor v. EEOC (2012) energized sweeping theories about “freedom of the church.” The Court’s more controversial decision in Burwell v Hobby Lobby Stores, Inc. (2014) determined that for-profit entities may be legally entitled to claim a corporate religious character. Speaking in the language of rights, commentators have vigorously debated the foundations and meaning of these decisions.

This chapter argues that these debates are misdirected. The special treatment of religion in American constitutional law does not properly rest on any theory that religious entities …

Eyes On The Prize, Head In The Sand: Filling The Due Process Vacuum In Federally Administered Contests, Steven L. Schooner, Nathaniel E. Castellano

GW Law Faculty Publications & Other Works

The article introduces readers to the recent proliferation of federal prize contests, which sovereigns have employed, albeit sporadically, since the mid-sixteenth century to incentivize breakthrough innovation. In the past decade, the federal government’s use of prize contests has skyrocketed, which makes sense in an era of constrained government resources. Prize contests offer seemingly unlimited potential to break through existing technological barriers at less expense than traditional innovation incentivizing tools such as contracts, grants, and patents. But that upside potential comes at a cost.

For every ebullient prizewinner, there are potentially innumerable “losers,” many of whom feel wronged, exploited, or, at …