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Articles 1 - 30 of 74
Full-Text Articles in Law
Protean Jus Ad Bellum, Sean D. Murphy
Protean Jus Ad Bellum, Sean D. Murphy
GW Law Faculty Publications & Other Works
The jus ad bellum is generally viewed as a static field of law. The standard account is that when the UN Charter was adopted in 1945, it enshrined a complete prohibition on the use of force in inter-state relations, except when action is being taken in self-defense against an armed attack or under authorization of the UN Security Council. Yet it seems likely that in the years to come, many states and non-state actors will increasingly insist upon a different vision of the jus ad bellum, one that conceives of it as more protean in nature.
Protean jus ad bellum …
The United States And The International Court Of Justice: Coping With Antinomies, Sean D. Murphy
The United States And The International Court Of Justice: Coping With Antinomies, Sean D. Murphy
GW Law Faculty Publications & Other Works
Since 1946, the United States has had an uneasy relationship with the International Court of Justice (ICJ or World Court or Court). This chapter addresses certain salient aspects of that relationship. Following an introductory Part I, Part II briefly sets forth three "antinomies" (i.e. equally rational but conflicting principles) in U.S. foreign relations that have had important ramifications for the U.S. relationship with the Court from the outset. First, the United States operates on the basis of conflicting principles with respect to the relevance of international law and institutions for U.S. foreign policy. These conflicting principles have been referred to …
More Than One Cent For Tribute, Gregory E. Maggs
More Than One Cent For Tribute, Gregory E. Maggs
GW Law Faculty Publications & Other Works
This is a book review of Fred S. McChesney, Money for Nothing: Politicians, Rent Extraction & Political Extortion (Harvard University Press 1997).
Shareholder Democracy On Trial: International Perspective On The Effectiveness Of Increased Shareholder Power, Lisa M. Fairfax
Shareholder Democracy On Trial: International Perspective On The Effectiveness Of Increased Shareholder Power, Lisa M. Fairfax
GW Law Faculty Publications & Other Works
Shareholder democracy - efforts to increase shareholder power within the corporation - appears to have come of age, both within the United States and abroad. In the past few years, U.S. shareholders have worked to strengthen their voice within the corporation by seeking to remove perceived impediments to their voting authority. These impediments include classified boards, the plurality standard for board elections, and the inability to nominate directors on the corporation's ballot. Shareholders' efforts have also extended to seeking a voice on the compensation of corporate officers and directors. Advocates of shareholder democracy believe that such efforts are critical to …
Hate Crimes And The War On Terror, Cynthia Lee
Hate Crimes And The War On Terror, Cynthia Lee
GW Law Faculty Publications & Other Works
This chapter, which will be part of a 5 volume treatise entitled, Hate Crimes: Perspectives and Approaches (Barbara Perry ed. forthcoming 2009), situates the private acts of hate violence committed against Arab-Americans, Muslim-Americans, Sikh-Americans, and South Asian-Americans in the aftermath of 9/11 into the broader context of the war on terror. In Part I, after providing some general background information on hate crimes, I discuss some of the hate crimes committed in the aftermath of 9/11. In Part II, I examine two common stereotypes about Arabs and Muslims which likely contributed to the post 9/11 backlash against Arabs and Muslims …
Rating Risk After The Subprime Mortgage Crisis: A User Fee Approach For Rating Agency Accountability, Jeffrey Manns
Rating Risk After The Subprime Mortgage Crisis: A User Fee Approach For Rating Agency Accountability, Jeffrey Manns
GW Law Faculty Publications & Other Works
This article argues that an absence of accountability and interconnections of interest between rating agencies and their debt issuer clients fostered a system of lax ratings that provided false assurances on the risk exposure of subprime mortgage-backed securities and collateralized debt obligations. It lays out an innovative, yet practical pathway for reform by suggesting how debt purchasers, the primary beneficiaries of ratings, may bear both the burdens and benefits of rating agency accountability by financing ratings through an SEC-administered user fee system in exchange for enforceable rights. The SEC user fee system would require rating agencies both to bid for …
Net Neutrality, Free Speech, And Democracy In The Internet Age, Dawn C. Nunziato
Net Neutrality, Free Speech, And Democracy In The Internet Age, Dawn C. Nunziato
GW Law Faculty Publications & Other Works
Professor Nunziato's book explains why the growth of the Internet as the most open forum for free expression in history is now threatened by the privatization of the Internet, the gatekeeper control over expression exercised by a handful of corporate owners, and their power to censor what we say and read online. She sets forth how we got to this place and what must be done about it to guarantee meaningful free speech rights in the Internet age.
Book Review: Outsourcing Sovereignty: Why Privatization Threatens Democracy, Richard J. Pierce Jr
Book Review: Outsourcing Sovereignty: Why Privatization Threatens Democracy, Richard J. Pierce Jr
GW Law Faculty Publications & Other Works
This is a review of Paul Verkuil's new book: Outsourcing Sovereignty: Why Privatization Threatens Democracy and What we Can Do About It. The book consists of a wide-ranging and well-documented critique of what Verkuil views as excessive reliance on private contractors to perform a variety of inherently governmental tasks, with particular emphasis on military and other national security functions. Verkuil discusses in detail numerous ways in which the U.S. might reduce the scope and severity of the severe problems that excessive reliance on poorly-supervised contractors is now having.
Pierce praises Verkuil's description and documentation of the problem he addresses in …
Coal-Fired Power Plants, Greenhouse Gases, And State Statutory Substantial Endangerment Provisions: Climate Change Comes To Kansas, Robert L. Glicksman
Coal-Fired Power Plants, Greenhouse Gases, And State Statutory Substantial Endangerment Provisions: Climate Change Comes To Kansas, Robert L. Glicksman
GW Law Faculty Publications & Other Works
State legislatures and environmental agencies have taken the lead in combating climate change, in the absence of leadership by the federal government. The most widely publicized efforts have involved the imposition of emission controls and fuel economy standards on motor vehicles by states such as California. But the states have also targeted stationary sources of greenhouse gases. In particular, they have sought to minimize carbon dioxide emissions from coal-fired power plants. States have used different approaches to reducing greenhouse gas emissions from electric utilities, including the adoption of renewable portfolio standards and cap-and-trade emission control programs. Increasingly, states are also …
Effectiveness Of Government Interventions At Inducing Better Environmental Performance: Does Effectiveness Depend On Facility Or Firm Features?, Robert L. Glicksman, Dietrich Earnhart
Effectiveness Of Government Interventions At Inducing Better Environmental Performance: Does Effectiveness Depend On Facility Or Firm Features?, Robert L. Glicksman, Dietrich Earnhart
GW Law Faculty Publications & Other Works
Environmental agencies have several options for dealing with alleged noncompliance with environmental regulations. These options include pursuit of administrative or judicial civil penalties and injunctions to prevent future violations. Scholars have begun exploring whether these options induce better performance by regulated entities. This Article addresses a largely neglected question: whether a regulated facility's characteristics affect the efficacy of the different enforcement options. The Article stems from a study of compliance by the chemical industry with federal Clean Water Act permits. It assesses whether facility characteristics, including effluent limit level and type, permit modifications, facility size, capacity utilization, discharge volatility, and …
The Gay Panic Defense, Cynthia Lee
The Gay Panic Defense, Cynthia Lee
GW Law Faculty Publications & Other Works
In this article, I examine the use of gay panic defense strategies in the criminal courtroom. I argue that such strategies are problematic because they reinforce and promote negative stereotypes about gay men as sexual deviants and sexual predators. Gay panic defense strategies are also troubling because they seek to capitalize on unconscious bias in favor of heterosexuality which is prevalent in today's heterocentric society. Most critics of the gay panic defense have proposed that judges or legislatures should bar gay panic arguments from the criminal courtroom. I take a contrary position and argue that banning gay panic arguments from …
Children And Religious Expression In School: A Comparative Treatment Of The Veil And Other Religious Symbols In Western Democracies, Catherine J. Ross
Children And Religious Expression In School: A Comparative Treatment Of The Veil And Other Religious Symbols In Western Democracies, Catherine J. Ross
GW Law Faculty Publications & Other Works
Whether and how to accommodate students' personal religious symbols worn in public schools are part of a mounting global debate. The competing claims of the body politic and the religious or cultural identity of minority groups came to a head in what the French called the "affair of the veil." This chapter examines the problem of the veil from a cross-cultural perspective, comparing the United States to several other western democracies. The comparison involves both legal and cultural premises. In each instance, the analysis must consider the fundamental values of the body politic, the laws and covenants that govern decision-making, …
Legal Constraints On Child-Saving: The Strange Case Of The Fundamentalist Latter-Day Saints At Yearning For Zion Ranch, Catherine J. Ross
Legal Constraints On Child-Saving: The Strange Case Of The Fundamentalist Latter-Day Saints At Yearning For Zion Ranch, Catherine J. Ross
GW Law Faculty Publications & Other Works
It may seem counterintuitive, but children in foster care are more likely to achieve permanency if we take the legal rights of their parents seriously. When all state actors, from social workers to judges, consider parental rights before removing children from their families or terminating parental rights, subsequent adoptions are more likely to be insulated from ongoing litigation, or in the worst instance, revocation. I am a strong proponent of children’s rights. In the context of the child welfare system, however, respect for the rights of parents can protect children from unnecessary and frightening disruptions. The doctrine of parens patriae, …
There Is A There There: How The Zippo Sliding Scale Has Destabilized The Structural Foundation Of Personal Jurisdiction Analysis, Catherine J. Ross
There Is A There There: How The Zippo Sliding Scale Has Destabilized The Structural Foundation Of Personal Jurisdiction Analysis, Catherine J. Ross
GW Law Faculty Publications & Other Works
In 1997, the Federal District Court for the Western District of Pennsylvania evaluated one in a line of emerging personal jurisdiction cases that raised the question of whether Internet-based contacts with citizens of the forum state can alone establish the defendant purposefully availed himself of the benefits and protections of the forum state. In this unlikely watershed case, Zippo Mfg. Co. v. Zippo Dot Com, the District Court wrangled with the new concept of purposeful availment through electronic contact with the forum state. The court viewed Zippo and its antecedents as components of a new body of personal jurisdiction law: …
Picking The Correct Argument, Stephen A. Saltzburg
Picking The Correct Argument, Stephen A. Saltzburg
GW Law Faculty Publications & Other Works
This article on trial tactics suggests that probably no rule of thumb is more important to a trial lawyer than this: You need only one good theory of admissibility or objection to win a point, and in many instances the key is to pick the winner and avoid the losers. The rule is easy to state and widely acknowledged. It is more difficult, however, to apply than to acknowledge. A related rule is that a lawyer who has a powerful, potentially winning argument, may ultimately lose if that argument is lost in a flurry of less persuasive arguments.
Rule 404(B) And Reversal On Appeal, Stephen A. Saltzburg
Rule 404(B) And Reversal On Appeal, Stephen A. Saltzburg
GW Law Faculty Publications & Other Works
This article discusses a strange case, United States v. Bell, 516 F.3d 432 (6th Cir. 2008), that illustrates the point that, if hard cases make bad law, strange cases sometimes produce surprising appellate decisions. The case began with a domestic violence call to the police, led to a consent search of a home and discovery of drugs and guns, and produced a conviction on drug and weapons charges. Despite the abuse of discretion standard of review and the usual deference appellate courts give to trial judge decisions with respect to the admissibility of uncharged crime evidence, the court of appeals …
The Importance Of An Independent Bar, Stephen A. Saltzburg
The Importance Of An Independent Bar, Stephen A. Saltzburg
GW Law Faculty Publications & Other Works
This paper, presented at International Bar Association's 10th Transnational Crime Conference in Washington, D.C., on June 9, 2007 begins from the premise that, as the world becomes more complex and therefore more dangerous, governments seek to limit individual rights in the name of crime control and/or national security. The paper cautions that we must always keep in mind that individual rights once lost are not easily regained. Accordingly, the unique and important role of an independent bar in protecting and defending liberty is more, not less, important than ever before. Thus, the efforts of the lawyers, military and civilian, to …
The Work-Family Conflict: An Essay On Employers, Men And Responsibility, Michael Selmi
The Work-Family Conflict: An Essay On Employers, Men And Responsibility, Michael Selmi
GW Law Faculty Publications & Other Works
This paper, prepared for a symposium held at the University of St. Thomas Law School, explores an issue that has been largely neglected in the work-family debate, namely why the burden should be on employers to change their practices rather than on men to change theirs. Many of the policy proposals designed to facilitate the balancing of work and family demands require employers to alter their practices by creating part-time work, providing paid leave, or devising ways to limit the penalties women face for taking extended leave. At the same time, the reluctance of men to change their behavior, which …
Interpreting The Americans With Disabilities Act: A Case Study In Pragmatic Judicial Reconstruction, Michael Selmi
Interpreting The Americans With Disabilities Act: A Case Study In Pragmatic Judicial Reconstruction, Michael Selmi
GW Law Faculty Publications & Other Works
This article challenges the prevailing academic consensus regarding the Supreme Court's interpretation of the Americans With Disabilities Act ("ADA"). In a series of cases over the last decade, the Supreme Court has sharply limited the scope of the statute by narrowly defining what constitutes a disability, and most commentators have attributed the cases to a judicial backlash or a lack of empathy for the disabled. This article offers a counter narrative. Although the Supreme Court's interpretations have plainly narrowed the scope of the statute, and without regard to congressional intent, I suggest that the decisions are largely consistent with congressional …
Why Contractor Fatalities Matter, Steven L. Schooner
Why Contractor Fatalities Matter, Steven L. Schooner
GW Law Faculty Publications & Other Works
At the end of July 2008, the media reported that 4,600 service members have died in Operations Iraqi Freedom and Enduring Freedom. But reporting only military fatalities understates the human cost of America's engagements in these regions by nearly a fourth. On the modern, outsourced battlefield, the U.S. government increasingly has delegated to the private sector the responsibility to stand in harm's way and, if required, die for America. As of 30 June 2008, more than 1,350 civilian contractor personnel had died in Iraq and Afghanistan, while another 29,000 contractors have been injured; more than 8,300 seriously. Nonetheless, contractor fatalities …
Intellectual Property For Market Experimentation, Michael B. Abramowicz, John F. Duffy
Intellectual Property For Market Experimentation, Michael B. Abramowicz, John F. Duffy
GW Law Faculty Publications & Other Works
Intellectual property protects investments in the production of information, but the literature on the topic has largely neglected one type of information that intellectual property might protect: information about the market success of goods and services. A first entrant into a market often cannot prevent other firms from free-riding on information about consumer demand and market feasibility. Despite the existence of some first-mover advantages, the incentives to be the first entrant into a market may sometimes be inefficiently low, thereby giving rise to a net first-mover disadvantage and discouraging innovation. Intellectual property may counteract this inefficiency by providing market exclusivity, …
Stemming The Tide Of Law Student Depression: What Law Schools Need To Learn From The Science Of Positive Psychology, Todd Peterson, Elizabeth Waters Peterson
Stemming The Tide Of Law Student Depression: What Law Schools Need To Learn From The Science Of Positive Psychology, Todd Peterson, Elizabeth Waters Peterson
GW Law Faculty Publications & Other Works
A growing body of literature shows that law students exhibit unique signs of psychological distress, including elevated levels of depression, stress, and anxiety. Law students also report significantly higher incidences of alcohol and drug abuse than their peers at other graduate schools. The article assesses the programs that 75 top law schools currently use to combat these alarming trends and finds that they are primarily reactive and that they do not sufficiently address the source or the scope of the problem. This article explores some of the ways in which positive psychology may be uniquely suited to address this student …
The Ilo Convention On Freedom Of Association And Its Future In The United States, Steve Charnovitz
The Ilo Convention On Freedom Of Association And Its Future In The United States, Steve Charnovitz
GW Law Faculty Publications & Other Works
This paper addresses the status of the international law convention on freedom of association in the United States. Although the United States supported the adoption of the Convention on Freedom of Association (#87) in the International Labour Organization in 1948, the U.S. government has not ratified that Convention. Instead, the Convention has sat on the shelf in the United States Senate since 1949, the longest unratified convention on the treaty calendar of the Senate Foreign Relations Committee. The paper analyzes the disadvantages for the United States in failing to become a party to this important treaty. The paper notes that …
Quanta V. Lg Electronics: Frustrating Patent Deals By Taking Contracting Options Off The Table?, F. Scott Kieff
Quanta V. Lg Electronics: Frustrating Patent Deals By Taking Contracting Options Off The Table?, F. Scott Kieff
GW Law Faculty Publications & Other Works
The Supreme Court's unanimous decision in Quanta v. LG Electronics may make it significantly more difficult to structure transactions involving patents. While this decision does make a group of players into winners in the immediate term for existing patent deals (this group includes any customer who, like Quanta, buys patented parts without buying a patent license), almost everyone is likely to come out a loser going forward.
The Court in Quanta decided that a patent license that LG Electronics sold only to Intel - and explicitly limited to exclude Intel's customers, like Quanta, and priced to reflect these modest ambitions …
On The Importance To Economic Success Of Property Rights In Finance And Innovation, F. Scott Kieff
On The Importance To Economic Success Of Property Rights In Finance And Innovation, F. Scott Kieff
GW Law Faculty Publications & Other Works
This Essay surveys recent developments across the fields of finance and innovation to highlight some common themes concerning the importance of property rights to economic success. Society regularly makes choices when shaping the precise contours of the legal institutions that govern the behavior of market actors, often in response to high profile issues like the collapse of Enron and the patenting of life-saving AIDS drugs. Recognizing that no set of legal institutions or related enforcement mechanisms will be perfect, this Essay explores some particularly helpful institutional features based on property rights that too often are overlooked by policy makers and …
Beyond Course Evaluations: Yaynay Sheets, Jessica L. Clark
Beyond Course Evaluations: Yaynay Sheets, Jessica L. Clark
GW Law Faculty Publications & Other Works
Collecting student evaluation data is a common practice among law professors, but the evaluation data can come too late if not collected until the end of a semester. Opportunities for student feedback happen in every class; at the end of each class period, students can evaluate what just happened in class, and professors can use this information to make immediate adjustments to their teaching. This article argues that law teachers should take advantage of these opportunities for collecting student feedback to improve both the students’ learning experience and the teacher’s teaching experience. The article gives an example of one way …
Biased Assimilation, Polarization, And Cultural Credibility: An Experimental Study Of Nanotechnology Risk Perceptions, Donald Braman, Dan M. Kahan, Paul Slovic, John Gastil, Geoffrey L. Cohen, Douglass A. Kysar
Biased Assimilation, Polarization, And Cultural Credibility: An Experimental Study Of Nanotechnology Risk Perceptions, Donald Braman, Dan M. Kahan, Paul Slovic, John Gastil, Geoffrey L. Cohen, Douglass A. Kysar
GW Law Faculty Publications & Other Works
We present the results from the second in a series of ongoing experimental studies of public perceptions of nanotechnology risks. Like the first study, the current one found that members of the public, most of whom know little or nothing about nanotechnology, polarize along cultural lines when exposed to information about it. Extending previous results, the current study also found that cultural polarization of this sort interacts with the perceived cultural identities of policy advocates. Polarization along expected lines grew even more extreme when subjects of diverse cultural outlooks observed an advocate whose values they share advancing an argument they …
The Federal Marriage Amendment And The False Promise Of Originalism, Thomas Colby
The Federal Marriage Amendment And The False Promise Of Originalism, Thomas Colby
GW Law Faculty Publications & Other Works
This Article approaches the originalism debate from a new angle - through the lens of the recently defeated Federal Marriage Amendment. There was profound and very public disagreement about the meaning of the FMA - in particular about the effect that it would have had on civil unions. The inescapable conclusion is that there was no original public meaning of the FMA with respect to the civil unions question. This suggests that often the problem with originalism is not just that the original public meaning of centuries-old provisions of the Constitution is hard to find (especially by judges untrained in …
Cultural Cognition And Synthetic Biology Risk Perceptions: A Preliminary Analysis, Donald Braman, Gregory N. Mandel, Dan M. Kahan
Cultural Cognition And Synthetic Biology Risk Perceptions: A Preliminary Analysis, Donald Braman, Gregory N. Mandel, Dan M. Kahan
GW Law Faculty Publications & Other Works
We describe the results of a study to determine the synthetic-biology risk perceptions of a large and diverse sample of Americans (N = 1,500). The survey found that hierarchical, conservative, and highly religious individuals - one who normally are skeptical of claims of environmental risks (including those relating to global warming) - are the most concerned about synthetic biology risks. We offer an interpretation that identifies how selective risk-skepticism and risk-sensitivity can convey a cultural commitment to traditional forms of authority.
Data Mining And The Security-Liberty Debate, Daniel J. Solove
Data Mining And The Security-Liberty Debate, Daniel J. Solove
GW Law Faculty Publications & Other Works
In this essay, written for a symposium on surveillance for the University of Chicago Law Review, I examine some common difficulties in the way that liberty is balanced against security in the context of data mining. Countless discussions about the trade-offs between security and liberty begin by taking a security proposal and then weighing it against what it would cost our civil liberties. Often, the liberty interests are cast as individual rights and balanced against the security interests, which are cast in terms of the safety of society as a whole. Courts and commentators defer to the government's assertions about …