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Articles 91 - 114 of 114
Full-Text Articles in Law
The Impact Of Negotiator Styles On Bargaining Interactions, Charles B. Craver
The Impact Of Negotiator Styles On Bargaining Interactions, Charles B. Craver
GW Law Faculty Publications & Other Works
This article examines the different techniques and bargaining traits associated with negotiator styles. It explores the Cooperative/Problem Solving, Competititve-Adversarial, and Competitive/Problem-Solving styles to determine which ones are more common among practicing lawyers, and which one is likely to be employed by proficient negotiators.
Federalism, Lochner, And The Individual Mandate, Peter J. Smith
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 …
The Pentagon Papers Case And The Wikileaks Controversy: National Security And The First Amendment, Jerome A. Barron
The Pentagon Papers Case And The Wikileaks Controversy: National Security And The First Amendment, Jerome A. Barron
GW Law Faculty Publications & Other Works
This Essay focuses on two clashes between national security and the First Amendment - the Pentagon Papers case and the WikiLeaks controversy. The two cases are hardly exact parallels. In the Pentagon Papers case the government was seeking to enjoin publications, asking for the imposition of a prior restraint. In that context, the press received the benefit of the "heavy presumption" against prior restraints. In the WikiLeaks controversy, because the discussion centers on the possibility of a criminal prosecution against Julian Assange, there is no equivalent "heavy presumption" against such a prosecution. In each case, the actual leaker was arrested, …
Aggregate Litigation: Critical Perspectives, Roger H. Trangsrud
Aggregate Litigation: Critical Perspectives, Roger H. Trangsrud
GW Law Faculty Publications & Other Works
While aggregate litigation has become an integral part of the U.S. civil justice system, it is often the cause of intense controversy among the private bar, the bench, and the academy. In 2009, the American Law Institute completed a project on the Principles of the Law of Aggregate Litigation, whose goal was to identify good procedures for handling aggregate lawsuits. The completion of these Principles spurred a host of reactions from attorneys, judges, and scholars. At a symposium hosted by The George Washington University Law School, the questions that were posed included: What is the optimal level of aggregation? When …
From Expert Administration To Accountability Network: A New Paradigm For Comparative Administrative Law, Francesca Bignami
From Expert Administration To Accountability Network: A New Paradigm For Comparative Administrative Law, Francesca Bignami
GW Law Faculty Publications & Other Works
Notwithstanding the radically changed landscape of contemporary administrative governance, the categories that guide comparative administrative law and that determine what will be compared remain similar to those used at the founding of the discipline in the late 1800s. These categories are rooted in confidence in an expert bureaucracy to accomplish public purposes and are mainly twofold - administrative organization and judicial review. This outdated model has limited the ability of comparative law to engage with contemporary debates on the administrative state, which instead display considerable skepticism of public administration and are premised on achieving the public good through a plural …
Creating European Rights: National Values And Supranational Interests, Francesca Bignami
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
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
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
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
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 …
Comments On The Normative Challenge Of Environmental “Soft Law”, Dinah L. Shelton
Comments On The Normative Challenge Of Environmental “Soft Law”, Dinah L. Shelton
GW Law Faculty Publications & Other Works
This paper describes the increased presence of non-binding soft law in international environmental law and begins by listing the possible uses of a “non-binding normative instrument.” Next, the paper describes the relationship between soft law and customary international law and notes that soft law may result in subsequent codification of those principles or interpret existing treaty obligations. The paper then contemplates why states are utilizing soft law in international environmental law and discusses issues regarding compliance with non-binding soft law. The paper concludes that the complicated nature of the international system prevents a prediction of the extent to which states …
Self-Determination In Regional Human Rights Law: From Kosovo To Cameroon, Dinah L. Shelton
Self-Determination In Regional Human Rights Law: From Kosovo To Cameroon, Dinah L. Shelton
GW Law Faculty Publications & Other Works
This article discusses the right to self-determination in Africa and America and begins by examining the right to self-determination in regional human rights treaties. No treaty in the Inter-American system provides a right to self-determination; however, the African Charter provides a right to self-determination, which I attribute to its history of colonization and apartheid. Next, the article describes secession claims made in Africa, starting in 1995 and discusses self-determination of indigenous and tribal groups by analyzing case law from the Inter-American system and the African Commission. The article concludes that these regions have established the framework for self-determination and must …
Environmental Protection And Human Rights, Dinah L. Shelton, Donald K. Anton
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
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 …
The Sacrifice Of The New Originalism, Thomas Colby
The Sacrifice Of The New Originalism, Thomas Colby
GW Law Faculty Publications & Other Works
This Article argues that Originalism has achieved its intellectual respectability only at the necessary expense of its ballyhooed promise of constraint. The Article recounts the theoretical advances of the New Originalism and argues that the New Originalism is substantially more defensible than was the Old one and is much better positioned to answer the scholarly critiques that demolished its predecessor. The Article further explains that these benefits have, however, come at the cost of judicial constraint. By its very nature - and to a far greater degree than its proponents have tended to recognize - the New Originalism is a …
The Ftc, Ip, And Ssos: Government Hold-Up Replacing Private Coordination, F. Scott Kieff, Richard A. Epstein, Daniel F. Spulber
The Ftc, Ip, And Ssos: Government Hold-Up Replacing Private Coordination, F. Scott Kieff, Richard A. Epstein, Daniel F. Spulber
GW Law Faculty Publications & Other Works
In its recent report entitled “The Evolving IP Marketplace,” the Federal Trade Commission (FTC) advances a far-reaching regulatory approach (Proposal) whose likely effect would be to distort the operation of the intellectual property (IP) marketplace in ways that will hamper the innovation and commercialization of new technologies. The gist of the FTC Proposal is to rely on highly non-standard and misguided definitions of economic terms of art such as “ex ante” and “hold-up,” while urging new inefficient rules for calculating damages for patent infringement. Stripped of the technicalities, the FTC Proposal would so reduce the costs of infringement by downstream …
Docket Control And The Success Of Constitutional Courts, David Fontana
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
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 …
A New Uneasy Case For Copyright, Michael B. Abramowicz
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 Dodd-Frank Act: A Flawed And Inadequate Response To The Too-Big-To-Fail Problem, Arthur E. Wilmarth Jr.
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.
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 …
It’S Time That You Know: The Shortcomings Of Ignorance As Fairness In Employment Law And The Need For An 'Information-Shifting' Model, Naomi Schoenbaum
It’S Time That You Know: The Shortcomings Of Ignorance As Fairness In Employment Law And The Need For An 'Information-Shifting' Model, Naomi Schoenbaum
GW Law Faculty Publications & Other Works
Knowledge is power; so, too, is the ability to control access to knowledge. When employers have access to information about protected traits — race, sex, religion, caregiving responsibilities, and so on — they may rely on stereotypes or otherwise discriminate on the basis of these traits in making hiring decisions. In recognizing that knowledge provides the power to discriminate, employment law regulates what information is available to employers during the hiring process. Federal and state laws place limits on an employer’s ability to inquire about aspects of a prospective employee’s identity at the hiring stage. Once an employee is hired, …
Problems In Climate Change And Human Rights, Dinah L. Shelton
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 Environmental Protection And Human Rights: A Human Right To The Environment, Dinah L. Shelton
Problems In Environmental Protection And Human Rights: A Human Right To The Environment, 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 assertion of a human right to a healthy environment has persisted over the last 40 years. Here we examine the international guarantees and national guarantees that have developed. We also look at moves toward a Declaration on Human Rights and the Environment.