Law Commons^™

Climate Change Adaptation: A Collective Action Perspective On Federalism Considerations, Robert L. Glicksman, Richard E. Levy

GW Law Faculty Publications & Other Works

The buildup of greenhouse gases in the atmosphere and the likely growth in future emissions due to increased energy consumption in developing nations have convinced many scientists and policymakers of the need to develop policies that will allow adaptation to minimize the adverse effects of climate change. Climate change adaptation is designed to increase the resilience of natural and human ecosystems to the threats posed by a changing environment. Although an extensive literature concerning the federalism implications of climate change mitigation policy has developed, less has been written about the federalism issues arising from climate change adaptation policy. This article …

Anatomy Of Industry Resistance To Climate Change: A Familiar Litany, Robert L. Glicksman

GW Law Faculty Publications & Other Works

The industries that generate environmental risks in the United States have long been hostile to regulatory programs that increase their costs of operation and reduce their profits. While industry may have been unprepared for, and thus poorly organized to resist, the first wave of federal environmental legislation enacted during the “environmental decade” of the 1970s, it quickly marshaled its forces. Regulated or potentially regulated entities, their trade associations, and their lobbyists began a concerted effort to defeat, delay, and weaken environmental regulation.

This book chapter describes the process by which regulatory opponents successfully relied on free market ideology to couch …

Competition Policy And The Application Of Section 5 Of The Federal Trade Commission Act, William E. Kovacic, Mark Winerman

GW Law Faculty Publications & Other Works

Since the 1970’s, U.S. courts generally have narrowed the range of single-firm behavior subject to condemnation as monopolization under the Sherman Act. This article examines the possibility of applying principles from Section 5 of the Federal Trade Commission Act to address apparent instances of anticompetitive conduct that go beyond the reach of other federal antitrust statutes. The FTC, through Section 5, offers a superior platform for elaborating competition policy, has the tools to perform empirical and policy work that can inform the design of legal rules, and is a specialized tribunal whose Section 5 decisions have no collateral effect in …

Book Review Of Alan Boyle And Christine Chinkin, The Making Of International Law, Oxford University Press, 2007, Sean D. Murphy

GW Law Faculty Publications & Other Works

Abstract:
An Extraordinary Range of International "Rules" or "Norms" are Created Today Through Mechanisms that Do Not Fit Easily into the Traditional Sources of International Law. In the Making of International Law, Professors Alan Boyle of the University of Edinburgh and Christine Chinkin of the London School of Economics Set Their Sights on Providing a Broad Account of Such Law-Making, Looking Across Different Areas of Organizational Behavior, Both Governmental and Non-Governmental. Although this Volume Has Some Shortcomings, it is an Excellent Starting Point for Those Interested in an Engaging and Informed Survey of Various Ways in Which International Law is …

Terrorism And The Law: Cases And Materials, Gregory E. Maggs

GW Law Faculty Publications & Other Works

Terrorism and the Law: Cases and Materials (2d ed. 2010) is a textbook written by Professor Gregory E. Maggs (of the George Washington University Law School) and published by West (ISBN-13: 9780314908582).

The textbook considers legal aspects of a broad range of methods that governments have for fighting terrorism, including criminal penalties, economic sanctions, immigration restrictions, military force, and civil liability. It addresses not just the steps taken in reaction to the 9/11 attacks, but also many other counterterrorism measures by the United States and other nations in recent years. To offer a global and comparative perspective, the materials include …

Hiring Law Professors: Breaking The Back Of An American Plutocratic Oligarchy, Daniel I. Gordon

GW Law Faculty Publications & Other Works

Law students and the consumers of legal services like to think that professors are hired by law schools on the basis of pure intellectual ability and achievement. No doubt, individual intellectual ability and achievement play significant roles in law school faculty hiring. However, another important dynamic is overlooked, wealth.

Getting Real About Abuse And Alienation: A Critique Of Drozd And Olesen's Decision Tree, Joan S. Meier

GW Law Faculty Publications & Other Works

Specialists in abuse and alienation have long taken opposing positions on the legitimacy of the concept of alienation in custody cases where abuse is alleged. One increasingly popular response that appears to carve a middle path is acknowledge that both alienation and abuse may co-exist, and to focus on "hybrid" cases, i.e., those in which there are cross-allegations of abuse and alienation. This article discusses and critiques, from the perspective of an expert on abuse, one of the earliest and most significant approaches to the hybrid case: Drozd and Olesen’s "Decision Tree." The author concludes that, while the Decision Tree …

The Last Days Of The American Lawyer, Thomas D. Morgan

GW Law Faculty Publications & Other Works

An historic transformation is underway in the legal profession. It began about 40 years ago, but it has accelerated and became painfully evident by 2009. These are the “last days” of the American lawyer we once new. This paper, based on the new book, The Vanishing American Lawyer (Oxford 2010) by the same author, documents the progress and direction of the transformation.

The Past, Present, And Future Of Energy Regulation, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

This essay is a contribution to a symposium at University of Utah. It begins with a summary of the history of energy regulation from 1960 until 2011. It then makes three arguments. First, the essay argues that the US should abandon pursuit of the goal of energy independence and pursue exclusively the goal of global warming mitigation. Second, it argues that the US should replace its present reliance on expensive and ineffective subsidies and mandates to mitigate global warming with a single mechanism to attain that goal – a large carbon tax. Third, the essay recognizes that, while a carbon …

Failing The Bay: Clean Water Act Enforcement In Maryland Falling Short, Robert L. Glicksman, Yee Huang

GW Law Faculty Publications & Other Works

The Maryland Department of the Environment (MDE) is responsible for enforcing Clean Water Act (CWA) requirements in Maryland. This report evaluates MDE's enforcement of the CWA and draws three significant conclusions: (1) MDE is drastically underfunded; (2) MDE has not designed its enforcement program to effectively deter dischargers from violating CWA and state water quality laws; and (3) MDE fails to take advantage of citizen suits to supplement its own enforcement actions and to maximize its limited resources.

Between 2000 and 2009, MDE's enforcement budget declined in real terms by 25 percent, which coincides with a doubling of the number …

The Digital Broadband Migration And The Federal Trade Commission: Building The Competition And Consumer Protection Agency Of The Future, William E. Kovacic

GW Law Faculty Publications & Other Works

Three areas of the FTC’s fairly extraordinary portfolio of policymaking responsibilities that affect the development of the internet stand out: (1) competition issues, (2) consumer protection issues, and (3) privacy and data protection. These three areas are linked by the FTC’s creation of policy by experimentation, assessment, and refinement, which ensures the FTC makes wise choices in the face of dramatic technological changes that characterize the internet. The three areas are also linked by institutional multiplicity, which may need to be reconfigured for internet-commerce policy.

Effective policy for internet-commerce requires investment in institutional building and implementation because the degree of …

Transnational Mass Claim Processes (Tmcps) In International Law And Practice, Arturo J. Carrillo, Jason Scott Palmer

GW Law Faculty Publications & Other Works

This article recognizes a growing overlap in the literature between international mass claims processes (“IMCPS”) and transitional justice claims processes (“TJCPs”), i.e. domestic reparations programs adopted by successor governments in the wake of mass atrocity. This convergence is reflected in a number of recent publications in both fields that promote the comparative analysis of IMCPs and TJCPs, which in turn, leads to the conclusion that the two processes share a number of analogous characteristics. Commentators tend to view these ostensibly shared traits as a natural source of “best practices” or “lessons” transferable between mass claims procedures in the international and …

Cultural Cognition Of Scientific Consensus, Donald Braman, Dan M. Kahan, Hank Jenkins-Smith

GW Law Faculty Publications & Other Works

Why do members of the public disagree - sharply and persistently - about facts on which expert scientists largely agree? We designed a study to test a distinctive explanation: the cultural cognition of scientific consensus. The "cultural cognition of risk" refers to the tendency of individuals to form risk perceptions that are congenial to their values. The study presents both correlational and experimental evidence confirming that cultural cognition shapes individuals' beliefs about the existence of scientific consensus, and the process by which they form such beliefs, relating to climate change, the disposal of nuclear wastes, and the effect of permitting …

Geographic Trademarks And The Protection Of Competitor Communication, Robert Brauneis

GW Law Faculty Publications & Other Works

Over the last 25 years, brand names that incorporate geographic terms have become easier to register immediately at the U.S. Patent and Trademark Office, without having to demonstrate acquired distinctiveness or "secondary meaning." This is largely due to two developments. The first is the rise of a subjective "goods-place association" test, under which an examiner must show that consumers would understand the brand name as claiming geographic origin before refusing registration. The second is the Federal Circuit's interpretation of the NAFTA Implementation Act as requiring a showing of materiality before refusing to register a trademark as primarily geographically deceptively misdescriptive. …

Social Security, Generational Justice, And Long-Term Deficits, Neil H. Buchanan

GW Law Faculty Publications & Other Works

This paper assesses current methods for evaluating the long-term viability and desirability of government activities, especially Social Security and other big-ticket budget items. I reach four conclusions: (1) There are several simple ways to improve the current debate about fiscal policy by adjusting our crude deficit measures, improvements which ought not to be controversial; (2) separately measuring Social Security's long-term balance is inappropriate and misleading; (3) the methods available to measure very long-term government financing (Fiscal Gaps and their cousins, Generational Accounts) are of very limited value in setting public policy today, principally because there is no reliable baseline of …

Comparative Originalism, David Fontana

GW Law Faculty Publications & Other Works

Jamal Greene has written an important paper examining originalism in other countries. This short response argues that comparing the United States with Canada and Australia (the countries Professor Greene mostly examines) involves comparing quite different countries, because the Canadian and Australian constitutions reorganized preexisting institutions, whereas the United States had more of a nation-creating, revolutionary constitution. Other countries that arose out of more revolutionary events, such as certain post-colonial African and Latin American nations, have also tended to feature originalist arguments. When the nation predates the creation of a constitution, key cultural and political understandings also predate the constitution, thereby …

The Permanent And Presidential Transition Models Of Political Party Policy Leadership, David Fontana

GW Law Faculty Publications & Other Works

This Article examines the uniqueness of the transition between presidential transitions in the United States. The phenomenon of the transition between elected governments – a time where one political leader or party has already been elected but has not yet taken official power – is not unknown to the rest of the world. What makes the American system unique, then, is not the existence of the transition period, but its significance. In the major constitutional regimes elsewhere, political parties more clearly identify their policy leaders even when not in power, and thus have a much smaller number of personnel decisions …

Towards A Jurisprudence Of Hybridity, Paul Schiff Berman

GW Law Faculty Publications & Other Works

Debates about non-state normative communities often devolve into clashes between two polarized positions. On the one hand, we see the desire to eradicate difference through forced obeisance to a single overarching state norm. On the other, we see claims of complete autonomy for non-state lawmaking, as if such non-state communities could plausibly exist in isolation from the communities that both surround and intersect them.

Neither of these positions takes seriously the importance of engagement and dialogue across difference. Navigating difference doesn’t require either assimilation or separation; it requires negotiation. Legal pluralists have long charted this process of negotiation, noting, for …

Credible Utility In Patent Law, Martin J. Adelman

GW Law Faculty Publications & Other Works

This paper discusses the law relating to the patentability of products and methods of their use. Specifically, the paper examines the circumstance where an inventor has brought forth a product which has no known credible utility or industrial applicability, but adds some guesses to her patent application in the hopes that if she guesses correctly, she will obtain a valuable patent. If one of the guesses proves correct, should this be treated in essence as a constructive reduction to practice sufficient to justify the grant of a valid patent?

This paper suggests that the proper answer should be no because …

New Criminal Law Review Symposium On Privilege Or Punish: Criminal Justice And The Challenge Of Family Ties, Naomi R. Cahn, Douglas A. Berman, Gabriel J. Chin, Jennifer M. Collins, Ethan J. Leib, Dan Markel

GW Law Faculty Publications & Other Works

This symposium includes three review essays by Professors Doug Berman, Naomi Cahn, and Jack Chin. The review essays are focused on a recent book by Professors Dan Markel, Jennifer M. Collins and Ethan J. Leib entitled 'Privilege or Punish: Criminal Justice and the Challenge of Family Ties' (Oxford 2009). You can download the entire book for free at http://ssrn.com/abstract=1677503. In addition to the three review essays, the collection includes an essay by the book's authors that serves as a reply to this set of critiques. Collectively, we are grateful to the New Criminal Law Review, which is hosting this collection …

How To Make The Much-Needed Employee Free Choice Act Politically Acceptable, Charles B. Craver

GW Law Faculty Publications & Other Works

The proposed Employee Free Choice Act (AFCA) would make it easier for employees to select bargaining agents by allowing unions to become certified based upon authorization cards instead of secret ballot Labor Board elections. This practice would be similar to the practice employed by the Labor Board under the original NLRA from 1935 until 1947. To ensure that a majority of workers really desire representation, EFCA could require that 60% or 67% of employees in proposed bargaining units sign authorization cards before the designated union could be certified. EFCA would also require first contract arbitration in the many instances in …

Traditional Versus Economic Analysis: Evidence From Cardozo And Posner Torts Opinions, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

This Article contributes a new approach and evidence to the longstanding debate concerning the relative merits of traditional legal analysis compared to contemporary economic analysis of law. It evaluates prominent opinions of two judicial exemplars of the contending conceptions, the traditionalist Benjamin Cardozo and the economist Richard Posner, in torts, the field where economic analysis has greatest impact. Comparative critique of their opinions appearing in current torts casebooks, where they are the most ubiquitous judges, provides evidence that traditional legal analysis is a more capacious and persuasive basis of justification than contemporary economic analysis of law.

An Inconvenient School Of Thought, F. Scott Kieff

GW Law Faculty Publications & Other Works

While a core focus of Carrier’s book is the relation between patents and antitrust, the book leaves its reader entirely in the dark about the school of thought about that interface that actually motivated Congress in passing the present patent system into law and that shaped the next half century of development in the case law. It is good that the book is not designed to recount history, because it would in that endeavor be writing out of the history the very events that were controlling. It also is good that the book is not designed to help the reader …

Fundamentalist Challenges To Core Democratic Values: Exit And Homeschooling, Catherine J. Ross

GW Law Faculty Publications & Other Works

This article discusses the trend in and legal recognition of homeschooling throughout the United States. I focus on Christian parents who argue that homeschooling is a means of avoiding exposure to issues about which they do not want their children to learn. I offer two proposals in this article: first, that state governments should impose and adjust curricular requirements for homeschoolers so that they must expose their children to mainstream norms about diversity and social inclusion and second, that when parents who share legal custody of their children disagree about where to educate them, courts should apply a rebuttable presumption …

A Core Of Agreement, Donald Braman, Dan M. Kahan, David Hoffman

GW Law Faculty Publications & Other Works

In this short comment, we respond to papers by Robinson, Kurzban, and Jones (RKJ) and by Darley, who replied to our paper, Punishment Naturalism. We align ourselves wholeheartedly with Darley’s argument that intuitions of criminal wrongdoing, while mediated by cognitive mechanisms that are largely universal, consist in evaluations that vary significantly across cultural groups. RKJ defend their finding of “universal” intuitions of “core” of criminal wrongdoing. They acknowledge, however, that their method for identifying the core excludes by design factors that predictably generate cultural variance in what behavior counts as murder, rape, theft and other “core” offenses. On this basis, …

International Decision: Tatar C. Roumanie, App. No. 67021/01...European Court Of Human Rights, Jan. 27, 2009, Dinah L. Shelton

GW Law Faculty Publications & Other Works

This case note examines Tatar c. Roumanie, App. No. 6702 1/01, at http://www.echr.coe.int., European Court of Human Rights, January 27, 2009. In Tatar c. Roumanie, the applicants claimed that the Romanian authorities’ failure to halt the practice of using sodium cyanide constituted a breach of Article 2 of the European Convention on Human Rights and Fundamental Freedoms. On these facts, the European Court reiterated earlier holdings that pollution can interfere with a person's private and family life by harming his or her well-being. Accordingly, the Court held that the operating conditions laid down by the Romanian authorities had been inadequate …

The First Amendment Issue Of Our Time, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

Here we go, once more unto the breach, to face yet another battle in the near decade-long war over net neutrality. Some of the combatants have changed, and their positions have shifted slightly, but today we find essentially the same interests represented and the same arguments advanced. On one side, the major cable, Digital Subscriber Line (DSL), and wireless broadband providers continue to argue against increasing the Federal Communication Commision’s (FCC) authority over how these providers manage the flow of information through their pipes. On the other side, we have content providers, Internet users, and--this time--the FCC, contending that the …

Narrow Banking: An Overdue Reform That Could Solve The Too-Big-To-Fail Problem And Align U.S. And U.K. Regulation Of Financial Conglomerates, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

This article is based on testimony presented on December 7, 2011, before the Subcommittee on Financial Institutions and Consumer Protection of the Senate Committee on Banking, Housing, and Urban Affairs. The article provides an update and extension of my previous work showing that: (1) the U.S., U.K. and other developed nations provided enormous subsidies for “too-big-to-fail” (“TBTF”) financial institutions during the financial crisis, thereby creating dangerous distortions in our financial markets and economies; (2) large financial conglomerates follow a hazardous business model that is riddled with conflicts of interest and prone to speculative risk-taking; (3) the Dodd-Frank Wall Street Reform …

Medicare Meets Mephistopheles: Health Care, Government Spending, And Economic Prosperity, Neil H. Buchanan

GW Law Faculty Publications & Other Works

This essay is an edited version of my remarks during the first panel of the Mississippi College Law Review’s symposium on health care reform, which was held on February 26, 2010, in Jackson, Mississippi. The essay integrates my prepared comments with my responses to comments and questions during the discussion period. I have also added some further thoughts on several of the issues that are relevant to the subject matter, especially in light of the subsequent passage of a major federal health reform bill. These remarks are necessarily brief, and they therefore can include only a hint of the issues …

How Realistic Is The Supply/Demand Equilibrium Story? A Simple Demonstration Of False Trading And Its Implications For Market Equilibrium, Neil H. Buchanan

GW Law Faculty Publications & Other Works

Transactions at non-equilibrium prices are false trades. Under standard assumptions, markets without false trading produce Pareto-efficient outputs. This paper demonstrates graphically the complications created when false trades occur, showing that quantities produced deviate from Pareto-efficient quantities except under unique conditions. In a general equilibrium framework, this spills over to cause Pareto-inefficient results in other markets as well. These observations call into question the use of standard supply-and-demand equilibrium theory as a starting point for policy analysis.