Law Commons^™

On The Selection Of Judges In International Figure Skating, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

This essay discusses the system that the International Skating Union (ISU) has long used to select skating judges for competitions and suggests that this system creates problems of partisanship, incentivizing national skating federations to pick judges who are most likely to favor the federation’s interests while also incentivizing skating judges to favor their national federations. I offer an alternative approach to the ISU’s present method of selecting judges, a tournament-like system that could be used to pick judges objectively by rating judges based on the correlation of their scores with those of other judges and allowing those with higher correlation …

A Compromise Approach To Compromise Verdicts, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

Although one of the legal system’s most salient attributes is its insistence that a civil jury choose the story of one party over that of another, scholars have thus far paid almost no attention to the possibility of replacing the preponderance-of-the-evidence rule with an alternative that is not “winner-take-all.” This Article focuses on the issue of uncertainty about what the defendant did or whether the plaintiff was injured, offering an alternative to the extremes of all-or-nothing and compromise verdicts. It considers the possibility that, while sometimes an all-or-nothing verdict is appropriate, at other times a compromise verdict would be better. …

The Thin Line Between Love And Hate: Why Affinity-Based Securities And Investment Fraud Constitutes A Hate Crime, Lisa M. Fairfax

GW Law Faculty Publications & Other Works

The Thin Line Between Love and Hate: Why Affinity-Based Securities and Investment Fraud Constitutes a Hate Crime, 36 U.C. Davis 1073 (2003) explores the parallels between the prototypical hate crime and affinity fraud - securities and investment fraud that targets identifiable religious, racial and ethnic groups - and asserts that those parallels justify treating affinity fraud as a hate crime.

Domestic Violence, Child Custody, And Child Protection: Understanding Judicial Resistance And Imagining The Solutions, Joan S. Meier

GW Law Faculty Publications & Other Works

This 2003 article seeks to take on what was then conventional wisdom, that myriad law reforms over the prior two decades have improved and corrected the law's response to domestic violence. It focuses on family courts' failure to credit and respond appropriately to protective mothers' - mostly battered women's - allegations that fathers are unsafe for the children. It unpacks several "neutral" principles that seem to guide family courts' responses to abuse allegations, arguing that they are mis-guided, and distort the realities of battering and child abuse in these cases. While not seeking to explain family court culture simply in …

Freedom Of Expression, Democratic Norms, And Internet Governance, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

Within a decade, the Internet has transformed into a global medium of mass communication and expression of all kinds. The Internet Corporation for Assigned Names and Numbers (ICANN), the body that governs the Internet's infrastructure, assured the United States that it would govern the Internet's infrastructure democratically and would implement governance structures to take into account the interests of affected Internet users around the world. In particular, ICANN promised to employ deliberative and representative democratic structures in its decision-making bodies. Even though ICANN has (arguably) implemented such procedural democratic norms, it has failed to implement substantive norms of democratic governance, …

The Price Of Discrimination: The Nature Of Class Action Employment Litigation And Its Effects, Michael Selmi

GW Law Faculty Publications & Other Works

This article analyzes the recent wave of large class action employment discrimination suits to determine their effects on the firms that are sued and the members of the plaintiff class. The first part of the paper includes an event study that measures the effect the lawsuits and their settlements have on stock prices of the companies that are sued, and the second part of the paper involves three case studies (Texaco, Home Depot and Denny's) to explore how the lawsuits actually change corporate practices. The study finds that the lawsuits do not generally affect stock prices, and rarely provide meaningful …

Adjudication, Antisubordination, And The Jazz Connection, Christopher A. Bracey

GW Law Faculty Publications & Other Works

We live in the midst of a pervasive and sustained democratic crisis. Our society expresses a deep commitment to core notions of freedom, justice, and equality for all citizens. Yet, it is equally clear that our democracy tolerates a great deal of social and economic inequality. Membership in a socially disfavored group can (and often does) profoundly distort one's life chances and opportunities. Our constitutional democracy acknowledges this tension, providing for both majority rule and the protection of minority rights and interests. Although we seek to safeguard minority rights and interest through express legal prohibitions on the subordination of socially …

The American Worker: Junior Partner In Success And Senior Partner In Failure, Charles B. Craver

GW Law Faculty Publications & Other Works

This article explores the degree to which American workers are treated like second-class parties by corporate leaders. When business firms do well, share holders and managers obtain significant financial gains, but rank-and-file workers do not usually share in those gains. On the other hand, when firms do poorly, thousands of employees are laid off, while managers obtain bonuses for their forthright actions designed to curtail labor costs. These developments correspond directly to the decline of labor organizations in the United States. When unions represented 35 percent of private sector workers in the late 1950s and 1960s, wages and benefits were …

A Comment On China's Participation In The World Trade Organization, Steve Charnovitz

GW Law Faculty Publications & Other Works

This comment discusses two papers presented at the US-China WTO Roundtable sponsored by the Institute of International Law of The Temple University James E. Beasley School of Law. The paper by Zhang Naigen examines treaty interpretation in dispute settlement under the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights. Professor Zhang observes that WTO panels will have to interpret the underlying provisions in non-WTO treaties, namely the intellectual property rights treaties overseen by the World Intellectual Property Organization. The paper by Yang Guohua points out the paradox that although the WTO permits governments to utilize import safeguards, in all …

More Statistics, Less Persuasion: A Cultural Theory Of Gun-Risk Perceptions, Donald Braman, Dan M. Kahan

GW Law Faculty Publications & Other Works

What motivates individuals to support or oppose the legal regulation of guns? What sorts of evidence or arguments are likely to promote a resolution of the gun control debate? Using the survey methods associated with the cultural theory of risk, we demonstrate that individuals' positions on gun control derive from their cultural world views: individuals of an egalitarian or solidaristic orientation tend to support gun control, those of a hierarchical or individualist orientation to oppose it. Indeed, cultural orientations so defined are stronger predictors of individuals' positions than is any other fact about them, including whether they are male or …

States As Nations: Dignity In Cross-Doctrinal Perspective, Peter J. Smith

GW Law Faculty Publications & Other Works

In a series of recent decisions, the Supreme Court has asserted that the states' sovereign immunity from suit serves principally to protect the "dignity" of the states. This seemingly oxymoronic notion has perplexed and amused commentators, who have tended to dismiss it largely as rhetorical flourish without substantive content. Although the concept of state dignity is at best an unusual anchor for a doctrine that already has been roundly criticized as unfaithful to constitutional history, text, and structure, the notion of state dignity is not foreign to the law. This article argues that in relying on state dignity, the Court's …

The Parent-Child Privilege In Context, Catherine J. Ross

GW Law Faculty Publications & Other Works

The article argues that children cannot fully exercise their constitutional rights under the Fifth and Sixth Amendments without being able to confide freely in their parents and advocates for the creation of a parent-child privilege.

Corporate Governance In China: An Overview, Donald C. Clarke

GW Law Faculty Publications & Other Works

Corporate governance (gongsi zhili) is a concept whose time seems definitely to have come in China. Chinese definitions of corporate governance in the abstract tend to cover the system regulating relationships among all parties with interests in a business organization, usually spelling out shareholders as a particularly important group (e.g., Liu, 1999; Yin, 1999). But Chinese corporate governance discourse in practice focuses almost exclusively on agency problems and within only two types of firms: state-owned enterprises (SOEs), particularly after their transformation into one of the corporate forms provided for under the Company Law,1 and listed companies, which must be companies …

Including Law In The Mix: The Role Of Law, Lawyers, And Legal Training In Child Advocacy, Catherine J. Ross

GW Law Faculty Publications & Other Works

This chapter describes the recent trends in family law scholarship, training, and practice. The first section of this chapter provides an overview of the scope of modern family law and the range of skills brought by lawyers. The second section considers the legal profession’s interest in using its collective talents to improve children’s lives in context of the broader intellectual trends in thinking about family issues. In the third section, I describe the current goals of legal education, explain why law schools should offer interdisciplinary training to students who plan to work in family law, and discuss some innovative multidisciplinary …

Perfecting Patent Prizes, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

A number of commentators in recent years have suggested permitting holders of intellectual property rights to give up these rights in exchange for cash prizes from the government. In this Article, Professor Abramowicz shows that each of the proposals has significant flaws that would make implementation impractical and argues that no single perfect formula or algorithm for determining the size of prizes exists. A prize system is nonetheless worth pursuing because it could increase social welfare significantly by eliminating deadweight loss. Professor Abramowicz recommends a relatively simple approach that would complement rather than replace the patent system. The proposal is …

The Negotiation Process, Charles B. Craver

GW Law Faculty Publications & Other Works

This article explores the six formal stages of the negotiation process to demonstrate to readers how structured bargaining encounters are. During the Preparation Stage, negotiators have to acquire critical information and determine: (1) their bottom lines; (2) their goals; and (3) their opening offers. During the Preliminary Stage, they should work to establish rapport with opponents and to create positive negotiating environments that will be more conducive to cooperative bargaining. During the Information Stage, negotiators must ask open-ended questions designed to discover what items are available for division - value creation. During the Distributive Stage, the participants vie for the …

The Impact Of Economic Globalization On Compliance, Dinah L. Shelton

GW Law Faculty Publications & Other Works

The introductory chapter of this book begins by defining globalization and the novel notion of the “common concern of humanity” and describes the ethical, cultural, and economic considerations underlying protection of the biosphere. The chapter describes the evolution of the common concern of humanity in depth and describes the increased presence of international organizations. Next, the chapter introduces the Marrakesh Charter and its corresponding economic principles. The chapter concludes that there exists the need to create an international liability system for both states and individuals for environmental degradation caused by international trade.

Which Ties Bind? Redefining The Parent-Child Relationship In An Age Of Genetic Certainty, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

This article addresses the role of the genetic tie in the parent-child relationship through three lenses. First, we argue that the legal system recognizes children's rights not by treating children as autonomous actors, but by identifying the individuals and institutions most likely to promote children's interests and encouraging their success. Second, we examine the existing empirical and socio-biological literature that considers the importance of biological relationships, and concludes that it demonstrates not a single set of answers, but a set of tradeoffs. The well-being of young children, particularly in societies less prosperous than our own, may depend on the mother's …

Taiwan And The Wt0, Steve Charnovitz

GW Law Faculty Publications & Other Works

This paper is about Taiwan and the World Trade Organization. It discusses the history of Taiwan's involvement in the world trading system and the accession to the WTO. The paper then notes some unique features of Taiwan's membership and discusses the current political tension with China in the WTO. The paper ends with a discussion of the implications of Taiwan's membership in the WTO for potential Taiwanese membership in other international organizations.

The Constitutional Structure And The Jurisprudence Of Justice Scalia, Bradford R. Clark

GW Law Faculty Publications & Other Works

Commentators generally regard federalism and separation of powers as distinct features of the constitutional structure. In reality, these doctrines were designed to work together to further the same goals: to avoid tyranny and to preserve individual liberty. Professor Thomas Merrill overlooks this connection in a recent attempt to explain the Supreme Court's decision making process under Chief Justice William Rehnquist. Professor Merrill maintains that there have been two Rehnquist Courts: one from 1986 to 1994, and another from 1994 to the present. In Professor Merrill's view, the first Rehnquist Court focused on social issues - such as abortion, affirmative action, …

Professor Hudec's Contribution To World Order, Steve Charnovitz

GW Law Faculty Publications & Other Works

For over three decades, Professor Robert E. Hudec shaped the field of international trade law, and inspired students, colleagues, and policy-makers around the world. Professor Hudec was a spirited, witty, unassuming, kind, and honest man. He enjoyed having his ideas contested by others, and was willing to spend time to help colleagues and students think through their ideas. This tribute to Professor Hudec collects a series of stories and acknowledgments from his peers and colleagues.

The World Trade Organization And Law Enforcement, Steve Charnovitz

GW Law Faculty Publications & Other Works

Increased threats from transborder criminal activity are leading to stronger governmental and intergovernmental responses in the military, judicial, and regulatory arenas. These efforts, particularly the non-military efforts, raise a new issue in international economic law: the intersection between trade and law enforcement. This paper provides an overview of this “trade and law enforcement” linkage in four areas: (1) security, (2) health, (3) human rights, and (4) environmental protection. To explain the linkage between trade and law enforcement, I present the taxonomy of how trade measures are usable for law enforcement, and I offer a synopsis of the WTO provisions relevant …

Beyond The Multiple Punishment Problem: Punitive Damages As Punishment For Individual, Private Wrongs, Thomas Colby

GW Law Faculty Publications & Other Works

The practice of using punitive damages to punish a tort defendant, in a single case brought by a single one of many victims, for the full scope of societal harm caused by its entire course of wrongful conduct has become increasingly common in modern tort cases. This practice presents the troubling possibility that more than one victim will recover punitive damages awards that were each designed to punish the defendant fully for the same course of wrongful conduct, resulting in unjustly severe cumulative punishment. Many courts and commentators have responded to this "multiple punishment" problem with complex and far-reaching proposals …

Barriers To Reliable Credibility Assessments: Domestic Violence Victim-Witnesses, Laurie S. Kohn

GW Law Faculty Publications & Other Works

This Article examines the challenges for victims of domestic violence appearing in court when the victim presents differently than the paradigmatic domestic violence victim. In particular, this Article analyzes the strategic dilemma of presenting a victim who refuses to admit (or cannot access or does not experience) fear of the batterer, and the victim who feels anger towards her assailant.

This Article addresses possible policy and tactical responses to this challenge. Suggesting legislative changes that eliminate requirements that victims prove subjective fear of a battering partner, the Article further analyzes the use of expert witnesses to assist jurors and judges …

Foreword: The Administrative Law Of The European Union, Francesca Bignami

GW Law Faculty Publications & Other Works

This special issue of Law and Contemporary Problems is devoted to the administrative law of the European Union. The foreword sets the stage by narrating the history of legal scholarship on European administration, explaining the public law methodology of the contributors, and describing the different legal styles that separate the civil from the common law traditions and that mark the contributions. The foreword then previews the individual articles, organized by the law of centralized or “direct” administration by the European Commission and the law of decentralized or “mixed” administration, in which national civil servants interact with their counterparts elsewhere and …

Thinking Race, Making Nation (Reviewing Glenn C. Loury, The Anatomy Of Racial Inequality), Christopher A. Bracey

GW Law Faculty Publications & Other Works

We live in a race-conscious culture. As Americans, we are a nation of people who self-consciously chose to adopt a vision of society that embraced lofty ideals of individual freedom and democracy for all along with powerful mechanisms for devastating racial oppression. Our history is replete with instances of differential treatment on account of race - slavery being only the most egregious example - that achieved the desired effect of generating remarkable disparities in socioeconomic well-being among individuals and between different racial groups. Such disparities are not simply historical artifacts. They are facts of the contemporary American racial landscape as …

Does Federalism Constrain The Treaty Power?, Edward T. Swaine

GW Law Faculty Publications & Other Works

The Supreme Court's revival of federalism casts doubt on the previously unimpeachable power of the national government to bind its states by treaty, suggesting potential subject-matter, anti-commandeering, and sovereign immunity limits that could impair U.S. obligations under vital trade and human rights treaties.

Existing scholarship treats these principles separately and considers them in originalist or other terms, without definitive result. This Article takes a different approach. By assessing all of the doctrines with equal care, but not at daunting length, it permits insight into the common issues involved in determining whether they should be extended to the treaty power. It …

Caught In The Crossfire: A Defense Of The Cultural Theory Of Gun-Risk Perceptions, Donald Braman, Dan M. Kahan

GW Law Faculty Publications & Other Works

In this article, Dan Kahan and Donald Braman expand upon the cultural theory of gun-risk perception and respond to the commentaries on their previous article, More Statistics, Less Persuasion: A Cultural Theory of Gun-Risk Perceptions, 151 U. Pa. L. Rev. 1291 (2003). Their critics argue that the authors are too quick to dismiss the power of empirical information to influence individuals’ positions on gun control. But in analyzing the variety of their critics’ arguments, Kahan and Braman note the strange pattern of opinions that has emerged on the relative importance of culture and data in the gun debate. What could …

Empirical Research Into The Chinese Judicial System, Donald C. Clarke

GW Law Faculty Publications & Other Works

The last few years have seen a proliferation of programs by Western states and international agencies designed, in broad terms, to promote reforms in the Chinese judicial system. What is not clear, however, is whether there has been systematic thinking about the precise goals to be sought in these and other projects, whether these goals are appropriate, and indeed whether their achievement can even be ascertained in some measurable way. This paper is an attempt to think about what we know, what we might want to know, and what we can know about China's judicial system, broadly defined.

A key …

Economic Development And The Rights Hypothesis: The China Problem, Donald C. Clarke

GW Law Faculty Publications & Other Works

An important school of thought in institutional economics (the "Rights Hypothesis") holds that economic growth requires a legal order offering stable and predictable rights of property and contract because the absence of such rights discourages investment and specialization. Without the security of expectations offered by such a legal order, according to the Rights Hypothesis, the risks of a great number of otherwise beneficial transactions far outweigh their expected return, and as a result such transactions simply do not occur. Society is mired in an economy of short-term deals between actors bound by non-legal ties such as family solidarity which by …