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Articles 1 - 30 of 108
Full-Text Articles in Law
Finding The Oscar, W. Burlette Carter
Finding The Oscar, W. Burlette Carter
GW Law Faculty Publications & Other Works
In 1940, Hattie McDaniel became the first African-American to be awarded an Oscar. The controversial role that garnered the honor was that of a slave "Mammy" in the 1939 film adaptation of Margaret Mitchell's Pulitzer Prize Winning novel, "Gone with the Wind." In 1951, McDaniel willed her Oscar to Howard University, but today no one knows where it is. Theories include that Howard students took it during the 1960s Civil Rights protests. that a Howard professor took it, or that it was simply put away for safekeeping but no one knows where. Howard's archives could find no records of having …
The Tragedy Of The Risk-Perception Commons: Culture Conflict, Rationality Conflict, And Climate Change, Donald Braman, Dan H. Kahan, Maggie Wittlin, Paul Slovic, Lisa Larrimore Ouellette, Gregory N. Mandel
The Tragedy Of The Risk-Perception Commons: Culture Conflict, Rationality Conflict, And Climate Change, Donald Braman, Dan H. Kahan, Maggie Wittlin, Paul Slovic, Lisa Larrimore Ouellette, Gregory N. Mandel
GW Law Faculty Publications & Other Works
The conventional explanation for controversy over climate change emphasizes impediments to public understanding: Limited popular knowledge of science, the inability of ordinary citizens to assess technical information, and the resulting widespread use of unreliable cognitive heuristics to assess risk. A large survey of U.S. adults (N = 1540) found little support for this account. On the whole, the most scientifically literate and numerate subjects were slightly less likely, not more, to see climate change as a serious threat than the least scientifically literate and numerate ones. More importantly, greater scientific literacy and numeracy were associated with greater cultural polarization: Respondents …
The 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 …
Throwing Precaution To The Wind: Nepa And The Deepwater Horizon Blowoutthrowing Precaution To The Wind: Nepa And The Deepwater Horizon Blowout, Robert L. Glicksman, Sandra Zellmer, Joel Mintz
Throwing Precaution To The Wind: Nepa And The Deepwater Horizon Blowoutthrowing Precaution To The Wind: Nepa And The Deepwater Horizon Blowout, Robert L. Glicksman, Sandra Zellmer, Joel Mintz
GW Law Faculty Publications & Other Works
On April 20, 2010, BP’s Deepwater Horizon oil platform blew up. Eleven workers were killed in the explosion. When the platform sank to the bottom of the Gulf of Mexico two days later, oil erupted out of the riser - a 5,000-foot pipe connecting the platform to the well on the ocean floor. After a number of failed attempts to stop the leak, BP eventually capped the well in July, three months after the explosion. Nearly 5,000,000 barrels of oil were released into the Gulf, making the Deepwater Horizon the largest offshore oil spill in world history. In this paper, …
Child Citizenship And Agency As Shaped By Legal Obligations, Suzanne H. Jackson
Child Citizenship And Agency As Shaped By Legal Obligations, Suzanne H. Jackson
GW Law Faculty Publications & Other Works
This article maintains that the legal recognition of obligations for children facilitates their recognition as citizens and agents when such obligations are understood from contextual and relational perspectives. Drawing primarily upon sources from Canada and the United States, the article advances this claim through a study of three separate settings. Part I examines the “child as student” and studies children’s obligations within schools. Part II considers the “street child” and the obligations and challenges children encounter when they live away from their families and communities. Part III contemplates the “child as bargainer” and focuses on obligations children assume when accessing, …
The Rise And Fall Of Comparative Constitutional Law In The Postwar Era, David Fontana
The Rise And Fall Of Comparative Constitutional Law In The Postwar Era, David Fontana
GW Law Faculty Publications & Other Works
In the first few decades after World War II, comparative constitutional law rose to a prominent position in American law schools, only to disappear in many ways in the years after the Warren Court in part because of the Court’s decisions. During the years after World War II, Justices of the Supreme Court (from William Douglas to Felix Frankfurter to Earl Warren) and deans of major American law schools (like Harvard Law School Dean and later Nixon Solicitor General Erwin Griswold) traveled the country and the world encouraging everyone to examine the constitutional law of other countries. Law reviews featured …
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 …
Solar Energy Development On The Federal Public Lands: Environmental Trade-Offs On The Road To A Lower-Carbon Future, Robert L. Glicksman
Solar Energy Development On The Federal Public Lands: Environmental Trade-Offs On The Road To A Lower-Carbon Future, Robert L. Glicksman
GW Law Faculty Publications & Other Works
The federal government has endorsed more extensive use of the federal public lands for the production of solar power, both to reduce the greenhouse gas emissions that contribute to climate change and to bolster the security of domestic energy supplies. Spurred by grant money made available under the American Recovery and Reinvestment Act of 2009, the Bureau of Land Management (BLM) in 2010 approved nine utility-scale solar projects on public lands in California and Nevada. These projects were designed to avoid adversely affecting the habitats of endangered and threatened species that frequent the desert southwest and cultural resources important to …
Pollution Limits And Polluters’ Efforts To Comply: The Role Of Government Monitoring And Enforcement, Robert L. Glicksman, Dietrich Earnhart
Pollution Limits And Polluters’ Efforts To Comply: The Role Of Government Monitoring And Enforcement, Robert L. Glicksman, Dietrich Earnhart
GW Law Faculty Publications & Other Works
This is the first chapter of a book published in 2011 by Stanford University Press that examines empirically compliance with regulatory obligations under the Clean Water Act (CWA). In particular, it examines four dimensions of federal water-pollution control policy in the United States: pollution limits imposed on industrial facilities’ pollution discharges; facilities’ efforts to comply with pollution limits, identified as “environmental behavior”; facilities’ success at controlling their discharges to comply with pollution limits, identified as “environmental performance”; and regulators’ efforts to induce compliance with pollution limits in the form of inspections and enforcement actions, identified as “government interventions.” The authors …
Plus Factors And Agreement In Antitrust Law, William E. Kovacic
Plus Factors And Agreement In Antitrust Law, William E. Kovacic
GW Law Faculty Publications & Other Works
Despite the crucial role of concerted action to collusion among rival firms, few elements are more perplexing than the design of evidentiary standards to determine whether parallel conduct stems from collective or from unilateral decision making. Courts allow a collusive agreement to be established by circumstantial evidence, but the evidence must show additional evidence — “plus factors” — beyond parallel movement in price. Chief plus factors identified by courts have included actions contrary to each defendant’s self-interest unless pursued as part of a collective plan, phenomena that can be explained rationally only as a result of concerted action, evidence that …
The International Competition Network: Its Past, Current, And Future Role, William E. Kovacic, Hugh Hollman
The International Competition Network: Its Past, Current, And Future Role, William E. Kovacic, Hugh Hollman
GW Law Faculty Publications & Other Works
In its first decade, the International Competition Network has prospered, contributed to the development of widely accepted international policy norms, and come to exemplify the form of voluntary multinational collaboration that commentators have identified as a promising way to facilitate international ordering amid the global decentralization and diversification of economic regulations. This article takes stock of ICN’s achievements, considers why it has succeeded in many of its aims, and asks a number of questions regarding what comes next. It seeks to inform the ICN’s future by offering a way to think of its institutional characteristics to assess its relative advantages. …
Book Review Of Marc Weller, Contested Statehood: Kosovo’S Struggle For Independence, Oxford University Press, 2009 (321 Pp.), Sean D. Murphy
Book Review Of Marc Weller, Contested Statehood: Kosovo’S Struggle For Independence, Oxford University Press, 2009 (321 Pp.), Sean D. Murphy
GW Law Faculty Publications & Other Works
How an area measuring no more than about 11,000 square kilometers could become arguably “ground zero” for the formation of post-Cold War international law is a bit of a mystery, but the province (and now country) of Kosovo, in the late twentieth/early twenty-first centuries, somehow managed to pull off that feat. In Contested Statehood: Kosovo’s Struggle for Independence Marc Weller provides the best history to date of the Kosovo crisis from the end of the Cold War up to the point that Kosovo’s independence was declared in February 2008. In its July 2009 advisory opinion on that legality of that …
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 Uneasy Case For The Inside Director, Lisa M. Fairfax
The Uneasy Case For The Inside Director, Lisa M. Fairfax
GW Law Faculty Publications & Other Works
In the wake of recent scandals and the economic meltdown, there is nearly universal support for the notion that corporations must have independent directors. Conventional wisdom insists that independent directors can more effectively monitor the corporation and prevent or otherwise better detect wrongdoing. As the movement to increase director independence has gained traction, inside directors have become an endangered species, relegated to holding a minimal number of seats on the corporate board. This Article questions the popular trend away from inside directors by critiquing the rationales in favor of director independence, and assessing the potential advantages of inside directors. This …
The Model Business Corporation Act At Sixty: Shareholders And Their Influence, Lisa M. Fairfax
The Model Business Corporation Act At Sixty: Shareholders And Their Influence, Lisa M. Fairfax
GW Law Faculty Publications & Other Works
In the sixty years since the Committee on Corporate Laws (Committee) promulgated the Model Business Corporation Act (MBCA), there have been significant changes in corporate law and corporate governance. One such change has been an increase in shareholder activism aimed at enhancing shareholders’ voting power and influence over corporate affairs. Such increased shareholder activism (along with its potential for increase in shareholder power) has sparked considerable debate. Advocates of increasing shareholder power insist that augmenting shareholders’ voting rights and influence over corporate affairs is vital not only for ensuring board and managerial accountability, but also for curbing fraud and other …
Government Governance And The Need To Reconcile Government Regulation With Board Fiduciary Duties, Lisa M. Fairfax
Government Governance And The Need To Reconcile Government Regulation With Board Fiduciary Duties, Lisa M. Fairfax
GW Law Faculty Publications & Other Works
Corporate governance scandals inevitably raise concerns about the extent to which corporate directors failed in their responsibility to monitor the corporation and its managers, especially in terms of the latter's’ misdeeds. Corporate governance reforms strive to shore up directors' roles by seeking to ensure that boards have sufficient incentives to engage in effective oversight and to hold the boards more accountable. The current financial crisis has ushered in an era of significant government reform of the financial system and involvement in corporate governance matters. Such involvement has increased board of directors' responsibilities but has not reconciled those responsibilities with board …
Package Bombs, Footlockers, And Laptops: What The Disappearing Container Doctrine Can Tell Us About The Fourth Amendment, Cynthia Lee
GW Law Faculty Publications & Other Works
In the 1970s, the Court announced in a series of cases that police officers with probable cause to believe contraband or evidence of a crime is within a container must obtain a warrant from a neutral, detached judicial officer before searching that container. In requiring a search warrant, the Container Doctrine put portable containers on an almost equal footing with houses, which enjoy unquestioned Fourth Amendment protection.
This Article demonstrates that the Container Doctrine is fast becoming a historical relic as the Court expands the ways in which law enforcement officers can search containers without first obtaining a warrant issued …
Calling Law A 'Profession' Only Confuses Thinking About The Challenges Lawyers Face, Thomas D. Morgan
Calling Law A 'Profession' Only Confuses Thinking About The Challenges Lawyers Face, Thomas D. Morgan
GW Law Faculty Publications & Other Works
It is appropriate to want lawyers to be mature, moral people and to help legal education reinforce those qualities. It is also appropriate to be sure students understand lawyers’ fiduciary responsibilities and the ways lawyers fall short of meeting them. It only confuses work on those issues, however, to call them part of teaching "professionalism." Law is not a "profession" as that term has traditionally been used. Calling law a profession does not help understanding the challenges lawyers face.
The Changing Face Of Legal Education: Its Impact On What It Means To Be A Lawyer, Thomas D. Morgan
The Changing Face Of Legal Education: Its Impact On What It Means To Be A Lawyer, Thomas D. Morgan
GW Law Faculty Publications & Other Works
In recent years, it has become less clear what it means to be a lawyer. Current efforts by the ABA to change accreditation standards for U.S. law schools make it important to think about the ways in which lawyers have common qualities. This paper considers both the changes in law practice and what they are likely to mean for U.S. law schools as they try to equip lawyers for the new reality.
What Should We Do About Administrative Law Judge Disability Decisionmaking?, Richard J. Pierce Jr
What Should We Do About Administrative Law Judge Disability Decisionmaking?, Richard J. Pierce Jr
GW Law Faculty Publications & Other Works
The Social Security Advisory Board, the Congressional Budget Office, and independent researchers at MIT and the University of Maryland have concluded that the Social Security disability programs have become excessively generous and fiscally unsustainable. The percentage of the population that has been determined to be disabled has doubled, the cost of the programs has increased over four-fold, and the programs are predicted to have exhausted their funding sources by 2018. All of the studies attribute the looming crisis in this area in large measure to Social Security Administration (SSA) Administrative Law Judges (ALJs).
In this article, Professor Pierce argues that …
An Empirical Study Of Judicial Review Of Agency Interpretations Of Agency Rules, Richard J. Pierce Jr, Joshua A. Weiss
An Empirical Study Of Judicial Review Of Agency Interpretations Of Agency Rules, Richard J. Pierce Jr, Joshua A. Weiss
GW Law Faculty Publications & Other Works
In this essay, Pierce and Weiss report the results of a study of judicial review of agency interpretations of agency rules. Prior studies found that, while courts at all levels uphold about 70% of agency actions, the Supreme Court upholds 91% of agency interpretations of agency rules. Pierce and Weiss find that lower courts do not confer this type of super deference on agency interpretations of agency rules. District courts and circuit courts uphold 76% of such agency actions. That is within the range of the findings of prior studies of judicial review of other types of agency actions and …
Missing The Mark In The Chesapeake Bay: A Report Card For The Phase I Watershed Implementation Plans, Robert L. Glicksman
Missing The Mark In The Chesapeake Bay: A Report Card For The Phase I Watershed Implementation Plans, Robert L. Glicksman
GW Law Faculty Publications & Other Works
Momentum for Chesapeake Bay restoration has advanced significantly in the past two years, shaped by the combination of President Obama’s Chesapeake Bay Protection and Restoration Executive Order and the EPA’s Bay-wide Total Maximum Daily Load (TMDL) process. These federal initiatives, taken in partnership with the Bay states, required the Bay states and the District of Columbia to submit Watershed Implementation Plans (WIPs) to demonstrate how they will meet the pollution targets in the applicable TMDLs. In August, the Center for Progressive Reform sent the Chesapeake Bay watershed jurisdictions (Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia, and the District of …
How (Not) To Censor: Procedural First Amendment Values And Internet Censorship Worldwide, Dawn C. Nunziato
How (Not) To Censor: Procedural First Amendment Values And Internet Censorship Worldwide, Dawn C. Nunziato
GW Law Faculty Publications & Other Works
A growing number of countries censor speech on the Internet-- dictatorships and democracies alike. Free speech advocates deplore this state of affairs and argue for achievement of a worldwide consensus in which all countries accord their citizens nearly unrestricted Internet access. This Utopia of uncensored Internet access is, however, radically different from the current state of affairs and--given the trend toward more, not less, control over Internet access--is not likely to be achieved in the near future. Calls for the rest of the world to adopt the United States’ First Amendment’s version of broad free speech protections are not likely …
A Primer On Demand Response And A Critique Of Ferc Order 745, Richard J. Pierce Jr
A Primer On Demand Response And A Critique Of Ferc Order 745, Richard J. Pierce Jr
GW Law Faculty Publications & Other Works
This essay is a contribution to the Second Annual Demand Response Conference sponsored by George Washington University and the law firm of Husch Blackwell. Demand response is a term that is used in debates about potential ways of reforming regulation of electricity to provide consumers with the proper incentives to conserve electricity. In this essay, Professor Pierce attempts to describe the basic economic and legal principles that are implicated in the debate in terms that make the debate more accessible to participants, policy makers, and the general public.
What Should We Do About Social Security Disability Appeals?, Richard J. Pierce Jr
What Should We Do About Social Security Disability Appeals?, Richard J. Pierce Jr
GW Law Faculty Publications & Other Works
Applicants for Social Security Disability benefits whose applications have twice been rejected can appeal that decision to one of the agency’s administrative law judges (ALJs). The appeals process is heavily weighted in the applicant’s favor: the agency is not represented in the appeal hearing, all government employees participating in the hearing have a duty to assist the applicant, the ALJ himself does not have medical expertise, and as a practical matter ALJ decisions are final. As a result, appellants have an extremely high success rate before ALJs, even though agency analyses indicate that a large number of these successful appellants …
Theorizing Systemic Disparate Treatment Law, Michael Selmi
Theorizing Systemic Disparate Treatment Law, Michael Selmi
GW Law Faculty Publications & Other Works
The pattern or practice cause of action is the most potent, but least understood, of the causes of action recognized by Title VII. The massive sex discrimination case filed against Wal-Mart has renewed scrutiny on the nature of the pattern or practice claim, and this essay seeks to explain under what circumstances statistics can prove intentional discrimination. This essay first explores the history of the pattern or practice claim, noting that the primary case law is now three decades old and was developed around issues of overt race discrimination. Claims of gender discrimination are more complicated because the regression analyses …
The Supreme Court’S Surprising And Strategic Response To The Civil Rights Act Of 1991, Michael Selmi
The Supreme Court’S Surprising And Strategic Response To The Civil Rights Act Of 1991, Michael Selmi
GW Law Faculty Publications & Other Works
This essay, which was prepared for a symposium issue in recognition of the twentieth anniversary of the Civil Rights Act of 1991, explores the Supreme Court’s response to the Congressional repudiation of its cases reflected in the 1991 Act. Relying on a positive political theory framework, I demonstrate that the Court appears to have responded in a strategically sophisticated manner designed to insulate their decisions from Congressional reversal. The 1991 Act reversed or modified eight Supreme Court decisions, and reflected concern regarding the conservative turn the Court had taken in discrimination cases. After the passage of the Act, plaintiffs have …
Problems In Human Rights And Transboundary Pollution, Dinah L. Shelton, Donald K. Anton
Problems In Human Rights And Transboundary Pollution, Dinah L. Shelton, Donald K. Anton
GW Law Faculty Publications & Other Works
This "case study" was intended to be included in Anton & Shelton, Environmental Problems and Human Rights (Cambridge, 2011), but space limitations forced its omission from the printed text. Using the Application Instituting Proceedings in the International Court of Justice case involving Arial Herbicide Spraying (Ecuador v. Columbia) [2008] ICJ 4-28 General List No. 138 (March 31, 2008)(footnote omitted), this case study raises questions associated with human rights and international environmental law.
The Impact Of Labor Unions On Worker Rights And On Other Social Movements, Charles B. Craver
The Impact Of Labor Unions On Worker Rights And On Other Social Movements, Charles B. Craver
GW Law Faculty Publications & Other Works
Labor unions have been in existence for over two hundred years, initially as craft organizations, and more recently as industrial and service organizations. During their existence they have significantly enhanced the wages and fringe benefits of represented workers through the collective bargaining process, and indirectly affected the wages and benefits enjoyed by nonunion employees whose employers provided them with such benefits to preclude their unionization. Unions have also provided members with job security through just cause disciplinary limitations and grievance-arbitration procedures. Over the past sixty years, many social movements have employed union tactics to advance other critical issues such as …