Law Commons^™

The Tragedy Of The Risk-Perception Commons: Culture Conflict, Rationality Conflict, And Climate Change, Donald Braman, Dan H. Kahan, Maggie Wittlin, Paul Slovic, Lisa Larrimore Ouellette, Gregory N. Mandel

GW Law Faculty Publications & Other Works

The conventional explanation for controversy over climate change emphasizes impediments to public understanding: Limited popular knowledge of science, the inability of ordinary citizens to assess technical information, and the resulting widespread use of unreliable cognitive heuristics to assess risk. A large survey of U.S. adults (N = 1540) found little support for this account. On the whole, the most scientifically literate and numerate subjects were slightly less likely, not more, to see climate change as a serious threat than the least scientifically literate and numerate ones. More importantly, greater scientific literacy and numeracy were associated with greater cultural polarization: Respondents …

The Resurgent Second Amendment, Robert J. Cottrol

GW Law Faculty Publications & Other Works

This review essay explores the extent to which Adam Winkler and Robert H. Churchill address the resurgence of the Second Amendment debate in their respective books, Gunfight: The Battle Over the Right to Bear Arms in America, and To Shake Their Guns in the Tyrant's Face: Libertarian Political Violence and the Origins of the Militia Movement in light of the Supreme Court's decision in District of Columbia v. Heller. Cottrol approves of Winkler's Gunfight as an excellent review of the background and view of the oral argument presented to the Supreme Court in Heller, but critiques it as falling short …

The Legal Status Of Normative Pronouncements Of Human Rights Treaty Bodies, Dinah L. Shelton

GW Law Faculty Publications & Other Works

This essay examines international human rights treaties and the statements that tribunals and other organizations make about them. Next, the essay discusses the general non-binding nature of treaties and describes use of General Comments and other interpretive statements. The essay concludes that increasing unofficial commentary on human rights organs’ decisions and increased compliance will encourage more states to comply and make it “increasingly difficult for a single state to hold out.”

Linking Gender Security With The Armed Conflict To Peace Continuum, Naomi R. Cahn, Fionnuala D. Ni Aolain, Dina Francesca Haynes

GW Law Faculty Publications & Other Works

In the immediate aftermath of armed conflict, security is critical to the possibility that refugees, displaced persons, and former combatants will return home, that the rule of law can be established, and that the state can move forward positively. Security in a post-conflict society is critical to preventing further conflict. Available empirical evidence suggests that conflicts are highly cyclical and for societies experiencing internal conflict there is up to a 50% risk that conflict will again reignite. Security issues are at the heart of the reconstruction process for the local population, national leaders, and the international community. Security is also …

The Alien Tort Statute And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia Jr.

GW Law Faculty Publications & Other Works

Courts and scholars have struggled to identify the original meaning of the Alien Tort Statute (ATS). As enacted in 1789, the ATS provided "[t]hat the district courts... shall... have cognizance... of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States." The statute was rarely invoked for almost two centuries until, in the 1980s, lower federal courts began reading the statute expansively to allow foreign citizens to sue other foreign citizens for violations of modern customary international law that occurred outside the United States. In 2004 …

Federalism, Lochner, And The Individual Mandate, Peter J. Smith

GW Law Faculty Publications & Other Works

The individual mandate provision in the Affordable Care Act requires individuals to obtain minimum essential health insurance coverage. This provision has been the focus of legal attacks on the Act. Opponents of the mandate have contended that Congress lacks power to compel individuals to engage in a private, commercial transaction. These claims are most sensibly understood as libertarian objections - that is, objections to government attempts to regulate certain personal decisions or actions, on the ground that those decisions or actions are for the individual, and only the individual, to make or take. As such, as a doctrinal matter this …

Creating European Rights: National Values And Supranational Interests, Francesca Bignami

GW Law Faculty Publications & Other Works

This Article develops an explanation for the emergence of individual rights before the European Commission, one of the oldest and most powerful international organizations in existence today. I argue that, in the early days of the European Community, rights before the Commission were patterned on the laws and legal traditions of the dominant Member States. Changing political circumstances largely outside the control of the Commission and other European institutions gave rise to a number of discrete, historical challenges to their authority. Most of these challenges came from citizens with allegiances to minority, national constitutional symbols and practices who were determined …

Thomas Nast's Crusading Legal Cartoons, Renée Lettow Lerner

GW Law Faculty Publications & Other Works

The cartoonist Thomas Nast (1840-1902) was in his heyday a political institution, with each of his pictures helping to form public opinion. His influence reached its height in the late 1860s and early 1870s with his relentless caricatures of Boss Tweed and the Tammany Hall Ring in New York City. One part of Nast’s work not often highlighted but as brilliant as the rest is his legal cartoons. Nast’s best work was done with high moral zeal, and his satire of lawyers and the legal system was no exception. His attacks grew out of frustration with the ineffectiveness of legal …

Visa As Property, Visa As Collateral, Eleanor Marie Brown

GW Law Faculty Publications & Other Works

Although the "tragic choice" framework has not been applied in the context of U.S. immigration law, current immigration policy is rife with tragic choices, defined as a commitment by policy elites to maintaining certain illusions which shield from public view tough policy choices that offend deeply held values. Take, for example, the issue of commodification of visas. Policy makers remain committed to maintaining the historical illusion that U.S. visas are open to well-deserving migrants, and are not being "sold" Yet U.S. immigration practice has long made concessions to commodification at the margins. Indeed, some migrants “pay” very high prices to …

The Myth Of Buick Aspirin: An Empirical Study Of Trademark Dilution By Product And Trade Names, Robert Brauneis, Paul J. Heald

GW Law Faculty Publications & Other Works

Trademark dilution is a highly controversial cause of action that has been the subject of hundreds of law review articles, but no significant scientific work. We analyze 60 years of telephone white pages, corporate & LLC naming data, advertisements from the New York Times, Wall Street Journal, and Washington Post, state and federal trademark databases, and all recorded dilution litigation. Our data suggest strongly that famous trademarks are frequently borrowed for use as trade names in services, but almost never as trade marks on products. Given that Congress based anti-dilution legislation on the assumption that uses like Buick Aspirin were …

Judicial Backlash Or Just Backlash? Evidence From A National Experiment, Donald Braman, David Fontana

GW Law Faculty Publications & Other Works

The question about whether there is a distinctive public reaction when the Supreme Court decides constitutional issues — the question of judicial backlash — permeates our discussions of constitutional law, yet we have little to no empirical research about how people think about this issue. To answer this question, we conducted an experiment before the midterm congressional elections in the fall of 2010. We hypothesized that people respond to an institution based on whether the institution is seen as supporting or threatening their cultural worldview. Half of study subjects were assigned to a condition in which a constitutional right to …

Environmental Protection And Human Rights, Dinah L. Shelton, Donald K. Anton

GW Law Faculty Publications & Other Works

This book concentrates on the relationship between human rights and the environment. The first chapter provides the framework for the book’s analysis and begins by defining “environment” and noting recent changes to environmental conditions and their causes, such as reduced biodiversity and increased population and resource consumption. The first portion of the chapter concludes by suggesting actions such as removing financial incentives for over-consumption of limited economic resources, that could improve the current environmental trends.

International Human Rights: Problems Of Law, Policy, And Practice, Dinah L. Shelton, Hurst Hannum, S. James Anaya

GW Law Faculty Publications & Other Works

The introductory chapter of this book discusses how a unifying concern for human dignity led to the establishment of human rights as part of the body of international law. Next, the chapter includes excerpts from multiple writers’ works to employ slavery as a case study to demonstrate how the international community has used the notion of human rights to create binding law. Third, this chapter discusses the philosophical drivers of human rights by including writings from other scholars and the history of the presence of human rights in international law. The chapter concludes that increasing concern for human rights may …

What Kind Of Environment Do We Owe Future Generations?, Neil H. Buchanan

GW Law Faculty Publications & Other Works

Despite widely held beliefs that current generations bear heavy obligations to look out for the welfare of future generations, the philosophical case in support of such intergenerational obligations is surprisingly tentative. Moreover, quantifying any such obligations is subject to even greater uncertainty. Even so, current generations bring future generations into existence in the knowledge that doing so will put a claim on resources that could have been used to reduce suffering among people who are already alive. The choice to allow living people to suffer and die, and instead to bring forth more people in the future, thus implies a …

Government Lawyering, Jessica Tillipman, Robert B. Mahini

GW Law Faculty Publications & Other Works

The legal profession is regulated with numerous ethical rules designed to ensure that practitioners comply with its high standards of professional conduct. Federal Government attorneys, while generally held to the same ethical standards as other attorneys, are subject to an additional set of requirements mandated by federal laws and regulations. This article focuses on the rules most crucial to the protection of the public welfare: 1) Government attorneys’ ethical obligations, and 2) Government attorneys’ duty to properly control information.

Government attorneys of the Executive Branch must comply with the “Standards of Ethical Conduct for Employees of the Executive Branch.” This …

Finding The Oscar, W. Burlette Carter

GW Law Faculty Publications & Other Works

In 1940, Hattie McDaniel became the first African-American to be awarded an Oscar. The controversial role that garnered the honor was that of a slave "Mammy" in the 1939 film adaptation of Margaret Mitchell's Pulitzer Prize Winning novel, "Gone with the Wind." In 1951, McDaniel willed her Oscar to Howard University, but today no one knows where it is. Theories include that Howard students took it during the 1960s Civil Rights protests. that a Howard professor took it, or that it was simply put away for safekeeping but no one knows where. Howard's archives could find no records of having …

Venture Capital Investment And Small Business Affiliation Rules: Why A Limited Exception Is Crucial To Economic Recovery Efforts, Jessica Tillipman, Damian Specht

GW Law Faculty Publications & Other Works

Small businesses and venture capital are a natural pair. While many small businesses are born of technical expertise and innovation, few are well financed. One of the reasons for this lack of financing is that small concerns are often viewed as risky investments. Small businesses are rarely led by experienced business people and, as many statistics demonstrate, are more likely than not to fail. Unlike their under financed counterparts, venture capital companies (“VCCs”) are well financed and what they lack in technical capability, they make up for in business acumen and financial wherewithal. Moreover, risky investments with large upsides are …

A New Uneasy Case For Copyright, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

Justice Stephen Breyer’s The Uneasy Case for Copyright is known for calling the attention of policymakers and scholars to the incentives-access paradigm of copyright law. Less-discussed, however, is its suggestion that copyright protection might inefficiently draw resources into the creation of copyrightable works given the potential spillover benefits of alternative uses to which creators might otherwise put their time. Although a full study of alternative career paths would be empirically challenging, one can simplify by asking what benefit society obtains from marginal copyrightable works – those that might not be created if copyright incentives were less robust – and whether …

The Changing Face Of Legal Education: Its Impact On What It Means To Be A Lawyer, Thomas D. Morgan

GW Law Faculty Publications & Other Works

In recent years, it has become less clear what it means to be a lawyer. Current efforts by the ABA to change accreditation standards for U.S. law schools make it important to think about the ways in which lawyers have common qualities. This paper considers both the changes in law practice and what they are likely to mean for U.S. law schools as they try to equip lawyers for the new reality.

What Should We Do About Administrative Law Judge Disability Decisionmaking?, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

The Social Security Advisory Board, the Congressional Budget Office, and independent researchers at MIT and the University of Maryland have concluded that the Social Security disability programs have become excessively generous and fiscally unsustainable. The percentage of the population that has been determined to be disabled has doubled, the cost of the programs has increased over four-fold, and the programs are predicted to have exhausted their funding sources by 2018. All of the studies attribute the looming crisis in this area in large measure to Social Security Administration (SSA) Administrative Law Judges (ALJs).

In this article, Professor Pierce argues that …

What Should We Do About Social Security Disability Appeals?, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

Applicants for Social Security Disability benefits whose applications have twice been rejected can appeal that decision to one of the agency’s administrative law judges (ALJs). The appeals process is heavily weighted in the applicant’s favor: the agency is not represented in the appeal hearing, all government employees participating in the hearing have a duty to assist the applicant, the ALJ himself does not have medical expertise, and as a practical matter ALJ decisions are final. As a result, appellants have an extremely high success rate before ALJs, even though agency analyses indicate that a large number of these successful appellants …

The Dodd-Frank Act: A Flawed And Inadequate Response To The Too-Big-To-Fail Problem, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

The Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank") was enacted in July 2010. Dodd-Frank's preamble proclaims that one of the statute's primary purposes is to "end 'too big to fail' [and] to protect the American taxpayer by ending bailouts." Dodd-Frank does contain useful reforms, including potentially favorable alterations to the supervisory and resolution regimes for systemically important financial institutions ("SIFIs"). However, Dodd-Frank falls far short of the fundamental reforms that would be needed to eliminate (or at least greatly reduce) the public subsidies that are currently exploited by "too big to fail" ("TBTF") financial institutions.

After briefly describing …

The Dodd-Frank Act's Expansion Of State Authority To Protect Consumers Of Financial Services, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) created the Consumer Financial Protection Bureau (CFPB) and delegated to CFPB the combined rulemaking and enforcement authorities of seven federal agencies that previously were responsible for protecting consumers of financial services. Congress decided to establish a single federal authority dedicated to consumer financial protection after federal banking agencies failed to protect American homeowners from unsound and predatory lending practices during the housing boom that occurred between 2001 and 2006. Federal regulators allowed lenders to make more than 10 million high-risk mortgages during those years. When the housing bubble burst in …

Docket Control And The Success Of Constitutional Courts, David Fontana

GW Law Faculty Publications & Other Works

This chapter, an invited contribution to a compendium on comparative constitutional law, argues that giving courts the power of docket control can contribute to their power and success. To make this point, this chapter surveys the experiences of several emerging and established constitutional democracies. Deciding what cases to decide permits a court to issue the right decisions at the right times, what this chapter calls ‘issue timing.’ A court can avoid encountering an issue until the country is ready to discuss the issue, and perhaps ready to resolve the issue in the manner the court is contemplating – or the …

Making Good Use Of Adaptive Management, Robert L. Glicksman

GW Law Faculty Publications & Other Works

Over the last two decades, natural resource scientists, managers, and policymakers have increasingly endorsed “adaptive management” of land and natural resources. Indeed, this approach, based on adaptive implementation of resource management and pollution control laws, is now mandated in a variety of contexts at the federal and state level. Yet confusion remains over the meaning of adaptive management, and disagreement persists over its usefulness or feasibility in specific contexts. This white paper is intended to help legislators, agency personnel, and the public better understand and use adaptive management. Adaptive management is not a panacea for the problems that plague natural …

Climate Change And The Puget Sound: Building The Legal Framework For Adaptation, Robert L. Glicksman

GW Law Faculty Publications & Other Works

The scope of climate change impacts is expected to be extraordinary, touching every ecosystem on the planet and affecting human interactions with the natural and built environment. From increased surface and water temperatures to sea level rise and more frequent extreme weather events, climate change promises vast and profound alterations to our world. Indeed, scientists predict continued climate change impacts regardless of any present or future mitigation efforts due to the long-lived nature of greenhouse gases emitted over the last century. The need to adapt to this new future is crucial. Adaptation may take a variety of forms, from implementing …

How (Not) To Censor: Procedural First Amendment Values And Internet Censorship Worldwide, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

A growing number of countries censor speech on the Internet-- dictatorships and democracies alike. Free speech advocates deplore this state of affairs and argue for achievement of a worldwide consensus in which all countries accord their citizens nearly unrestricted Internet access. This Utopia of uncensored Internet access is, however, radically different from the current state of affairs and--given the trend toward more, not less, control over Internet access--is not likely to be achieved in the near future. Calls for the rest of the world to adopt the United States’ First Amendment’s version of broad free speech protections are not likely …

The Legacy Of Justice Scalia And His Textualist Ideal, Jonathan R. Siegel

GW Law Faculty Publications & Other Works

The late Justice Antonin Scalia reshaped statutory interpretation. Thanks to him, the Supreme Court has become far more textualist. Nonetheless, Justice Scalia never persuaded the Court to adopt his textualist ideal that “the text is the law.” In some cases, the Court still gives greater weight to other indicators of statutory meaning, such as perceived statutory purpose. Fundamental institutional features of courts and legislatures — particularly the fact that legislatures act generally and in advance, whereas courts resolve particular questions at the moment a statute is applied — justify this rejection of the textualist ideal.

Problems In Climate Change And Human Rights, Dinah L. Shelton

GW Law Faculty Publications & Other Works

This "case study" was intended to be included in Anton & Shelton, Environmental Problems and Human Rights (Cambridge, 2011), but space limitations forced its omission from the printed text. The link between adverse impacts of climate change and human rights was pushed to the fore recently by a 2005 petition by Sheila Watt-Cloutier on behalf of the Inuit people of the Artic regions to the Inter-American Commission on Human Rights. Human Rights challenges to harmful climate change activities and impacts have also been launched in a number of national courts. In Nigeria and Australia substantive and procedural rights have been …

Problems In Human Rights And Transboundary Pollution, Dinah L. Shelton, Donald K. Anton

GW Law Faculty Publications & Other Works

This "case study" was intended to be included in Anton & Shelton, Environmental Problems and Human Rights (Cambridge, 2011), but space limitations forced its omission from the printed text. Using the Application Instituting Proceedings in the International Court of Justice case involving Arial Herbicide Spraying (Ecuador v. Columbia) [2008] ICJ 4-28 General List No. 138 (March 31, 2008)(footnote omitted), this case study raises questions associated with human rights and international environmental law.