Law Commons^™

A New 'Sliding Scale Of Difference' Approach To Abuse Of Discretion: Appellate Review Of District Court Departures Under The Federal Sentencing Guidelines, Cynthia Lee

GW Law Faculty Publications & Other Works

Prior to the Federal Sentencing Guidelines, criminal sentences were rarely appealed. For the first two years after implementation of the Guidelines, most appellate courts applied a tripartite standard of review when reviewing Guideline departures. Under this framework, courts reviewed the existence of an aggravating or mitigating factor de novo, the district court's actual findings for 'clear error,' and the reasonableness of the extent of the departure for 'clear error.' In Koon v. United States, the U.S. Supreme Court purportedly rejected this tripartite standard of review, and instead proclaimed a unitary 'abuse of discretion' standard.

On the tenth anniversary of the …

Domestic Violence, Character, And Social Change In The Welfare Reform Debate, Joan S. Meier

GW Law Faculty Publications & Other Works

This article addresses the recently discovered connection between domestic violence and welfare “dependency.” Empirical research among welfare populations shows that over 50% of women receiving welfare are or have recently been battered, and that partner abuse is a major reason for the continuing poverty of many women.

The question the author asks and begins to answer is why this connection has not previously been identified or publicized by either the battered women’s movement or the anti-poverty movement, and what the challenge may be to both movements as they attempt to address it in the context of welfare reform. The author …

Reconciling Chevron And Stare Decisis, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

Conflicts between Chevron and stare decisis can arise in several contexts. Pierce first identifies the values that are furthered by Chevron and stare decisis and then analyzes the judicial decisions that resolve conflicts between the two doctrines. The Supreme Court has announced and applied a series of mechanical rules to resolve such conflicts, e.g., Supreme Court precedents always trump Chevron deference, while even longstanding agency and circuit court precedents apparently count for nothing when the Court attempts to determine the meaning of statutory language. Circuit courts have announced and applied a dramatically different set of rules for resolving conflicts between …

Reconstructing Langdell, W. Burlette Carter

GW Law Faculty Publications & Other Works

This article traces the development of the modern American law school curriculum including the case method, as designed by Christopher Columbus Langdell and the Socratic method as implemented by James Barr Ames; discusses early tensions between law schools and the American Bar Association and the ultimate triumph of law schools as the primary method of law study and frames the Langdell legacy for a modern time.

Negotiation Ethics: How To Be Deceptive Without Being Dishonest/How To Be Assertive Without Being Offensive, Charles B. Craver

GW Law Faculty Publications & Other Works

This article explores various ethical issues pertaining to negotiation interactions. Model Rule 4.1 proscribes material misrepresentations, but permits puffing and embellishment during bargaining encounters. This is based upon the fact that statements pertaining to one's settlement intentions and subjective values are considered to involve non-material information. It is thus imperative for negotiators to distinguish carefully between such accepted deceptive practices and clearly improper misrepresentations involving material information. The article also discusses the use of assertive tactics that might offend some persons. It points out how negotiators can be assertive without resorting to truly offensive behavior that would be unlikely to …

Postures Of Judging: An Exploration Of Judicial Decisionmaking, Daniel J. Solove

GW Law Faculty Publications & Other Works

This article pits Ronald Dworkin against Fyodor Dostoyevsky. The article critiques Ronald Dworkin's answer to the question of fit: how judges reconcile general legal rules with particular situations. Dworkin's heavy focus on legal principles under-emphasizes the importance of facts in judicial decisionmaking. Exploring how judges approach the question of fit from a more literary perspective, the article examines the posture of a judge - a judge's physical and temporal position in relation to the cases she adjudicates, a position which affects the level of generality with which a judge perceives the facts of a case and directly influences a judge's …

Mandatory Worker Participation Is Required In A Declining Union Environment To Provide Employees With Meaningful Industrial Democracy, Charles B. Craver

GW Law Faculty Publications & Other Works

For many years, American workers directly or indirectly benefited from union representation. The 30-35 percent of employees actually represented by labor organizations in the late 1950s and early 1960s had their wages and benefits negotiated by those unions. Nonunion workers obtained similar benefits from employers seeking to remain nonunion. Over the past 50 years, private sector union membership has declined significantly to under 8 percent today. The individual employee has no bargaining power and must accept whatever he or she is offered. Workers have no say in firm decisions that directly affect their employment security and working conditions. The U.S. …

Introduction To The Essays Of Warren Buffett: Lessons For Corporate America, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

This Professor Cunningham's Introduction to his edited collection of Warren Buffett's noted letters to shareholders of Berkshire Hathaway Inc. The collection was prepared for a symposium held at Cardozo Law School in New York City in 1997 and originally published in the Cardozo Law Review. The Introduction serves as an encapsulation of the main themes of the resulting collection and locates them in contemporary discourse on matters of corporate governance; corporate finance and investing; mergers and acquisitions; and accounting and taxation. Professor Cunningham subsequently published the edited collection as a book under the title The Essays of Warren Buffett: Lessons …

Race And Self-Defense: Toward A Normative Conception Of Reasonableness, Cynthia Lee

GW Law Faculty Publications & Other Works

This paper examines the influence of racial stereotypes on juror determinations of reasonableness in self defense cases involving African American, Asian American, and Latino victims as part of a larger effort to minimize racial bias in criminal justice decision-making. Part I discusses traditional self defense doctrine, including the debate over whether an objective or subjective standard of reasonableness should be employed. Recognizing that objective standards such as the reasonableness requirement are not always neutral, Part I nevertheless concludes that an objective standard of reasonableness is preferable to a subjective standard which permits the racially biased sentiments of the defendant to …

Infecting Attorney-Client Confidentiality: The Ethics Of Hiv Disclosure, Laurie S. Kohn

GW Law Faculty Publications & Other Works

This Note explores the “Draconian dilemma” an attorney faces when she is confronted by a client who discloses his HIV status and his on-going intimate sexual relations during contacts in furtherance of the legal representation. The Note examines the attorney's potential exposure to civil liability that might result from either disclosure or retention of confidence. It also outline sseveral avenues of legal claims that both third parties and clients might pursue in response to the attorney's actions. Although few plaintiffs have tested the viability of these causes of action, the Article considers whether third parties who are at risk would …

Power And Politics In The Chinese Court System: The Enforcement Of Civil Judgments, Donald C. Clarke

GW Law Faculty Publications & Other Works

No abstract provided.

Representing The Unrepresented In Class Action Settlements, Alan B. Morrison

GW Law Faculty Publications & Other Works

Class actions are important and useful both to deter wrongful conduct and to provide compensation for injured plaintiffs. In complex cases, however, the existing class action structure falters. In this article, Messrs. Wolfman and Morrison argue that in "settlement class actions" the current class action rules do not adequately protect class members whose interests do not coincide with those of the class representatives and the class attorneys. Through a survey of recent, prominent settlement class actions, the authors show that the current system does not fairly treat subgroups in a class with respect to matters as diverse as future injury, …

Can This Culture Be Saved? Another Affirmative Action Baby Reflects On Religious Freedom (Review Of The Culture Of Disbelief, How American Law And Politics Trivialize Religious Devotion, By Stephen L. Carter), W. Burlette Carter

GW Law Faculty Publications & Other Works

In a critical review of Professor Stephen Carter’s The Culture of Disbelief, this article contends Stephen Carter’s thesis that religion is disrespected in the U.S. lacks support and is inherently defective as a starting point from which to fashion a workable theory of freedom to engage in public religion. It argues that Stephen Carter himself fails to adequately consider minority group religious freedom rights and, thus, trivializes the very religious concerns that he set out to highlight. The article is split into four parts. In Part I, the article gives a basic outline of the trivialization theory. Part II …

Hermeneutics And Contract Default Rules: An Essay On Lieber And Corbin, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

The most provocative debate in contemporary contract law scholarship concerns default rule analysis or the manner in which courts fill gaps in incomplete contracts. The nineteenth-century scholar Francis Lieber elaborated a comprehensive solution to the default rules puzzle by first distinguishing the judicial acts of contract interpretation and construction, and then by developing principles of construction with which to choose default rules. Arthur Corbin knew about Lieber's enterprise, but, in his treatise on contracts, dismissed Lieber's distinction and never explored the rest of Lieber's hermeneutics. Had Corbin addressed Lieber, much of the professorial energy expended in the prevailing default rules …

Cardozo And Posner: A Study In Contracts, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

This article critically evaluates the major judicial opinions on the law of contracts written by Judges Benjamin N. Cardozo and Richard A. Posner. Respectively, these judges are the first and third most influential judges on the subject measured by the frequency with which contemporary contracts casebooks reproduce their opinions. Exploring dozens of classic opinions of these judicial titans, the piece contrasts the philosophies and methods the two judges employ in wrestling with many fundamental challenges in contract law, from formation to performance to damages. The inquiry suggests that, using Isaiah Berlin's nomenclature, Judge Cardozo is the fox of American contract …

Consumer Bankruptcy Fraud And The Reliance On Advice Of Counsel Argument, Gregory E. Maggs

GW Law Faculty Publications & Other Works

Despite considerable litigation on the subject, there is little agreement as to whether courts must accept a "reliance argument" in bankruptcy fraud cases. This Article seeks to clarify the existing law and recommend changes to the governing statutes. The first three Parts of the Article serve a descriptive function. Part I provides an overview of consumer bankruptcy fraud and describes how debtors perpetrate fraud and how attorneys may be assisting them. It also explains how the Bankruptcy Code and the Federal Criminal Code currently seek to deter fraud and to punish debtors who commit it.

Prosecutorial Discretion, Substantial Assistance, And The Federal Sentencing Guidelines, Cynthia Lee

GW Law Faculty Publications & Other Works

In this Article, Professor Lee examines the government motion requirement for substantial assistance departures in light of Congress's goals for implementing the federal sentencing guidelines. In Part One, Lee discusses the government motion requirement against the backdrop of the goals Congress had in mind when it enacted the federal sentencing guidelines. She points out that while Congress enacted the sentencing guidelines to promote uniformity and proportionality (an "equality value") and honesty and certainty (a "reliance value") in sentencing, the government motion requirement gives prosecutors the unilateral authority to block downward departures for substantial assistance. This increase in prosecutorial sentencing discretion …

Gender Equality: States As Laboratories, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

Two decades ago, the calls of women’s groups for gender equality captured the attention of the legislatures, the courts, and the academy. “Liberal” feminist theorists called for the passage of the federal Equal Rights Amendment (“ERA”) and advocated the Supreme Court’s application of heightened scrutiny to gender classifications. Meanwhile, “radical” feminist theorists claimed that the liberal approach would achieve mere formal equality or equality of treatment between men and women but would not establish women’s actual equality in society. These radical theorists called for more extensive, affirmative government measures to achieve substantive equality for women.

The states’ failure to ratify …

Rats, Pigs, And Statues On Trial: The Creation Of Cultural Narratives In The Prosecution Of Animals And Inanimate Objects, Paul Schiff Berman

GW Law Faculty Publications & Other Works

Records indicate that trials of animals - usually for killing human beings - took place throughout Europe and elsewhere from the ninth through the nineteenth centuries. The historical evidence indicates that communities viewed these trials seriously. If we can understand what social benefits the trials brought to the people of these towns, we may begin to see that trials even in our own time fulfill cultural needs that extend far beyond dispute resolution and adjudication.

This Note explores how an understanding of the social function of trials may allow us to rethink their value in contemporary society. This Note describes …

Delaware Fiduciary Duty Law After Qvc And Technicolor: A Unified Standard (And The End Of Revlon Duties?)., Lawrence A. Cunningham, Charles M. Yablon

GW Law Faculty Publications & Other Works

This Article seeks to analyze and understand Paramount Communications, Inc. v. QVC Network, Inc. and Cede & Co. v. Technicolor, Inc. as part of a movement in Delaware fiduciary law toward a single, more unified standard, away from doctrinal fragmentation. In addition, the Article considers Delaware law leading up to QVC and Technicolor, tracing both the growing fragmentation of Delaware law in the 1980s and the growing judicial concern about fragmentation. This Article will argue that the concern over fragmentation and the desire for a unified standard were not the result of external pressures or policy concerns, but of internal …

From Random Walks To Chaotic Crashes: The Linear Genealogy Of The Efficient Capital Market Hypothesis, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

This Article argues that chaos theory, noise theory and behavioral finance mandate opening a new chapter in a voluminous corporate and securities law debate revolving around the efficient capital market hypothesis (ECMH), which for decades has been the context for debating corporate and securities law and policy. The debate has been defined by interpretations of the semi-strong form of the ECMH - the claim that security prices fully reflect all publicly available information. As such, the debate has assumed as true and built upon the weak form of the ECMH - the claim that security prices fully reflect all information …

Rats, Pigs, And Statues On Trial: The Creation Of Cultural Narratives In The Prosecution Of Animals And Inanimate Objects, Paul Schiff Berman

GW Law Faculty Publications & Other Works

Records indicate that trials of animals - usually for killing human beings - took place throughout Europe and elsewhere from the ninth through the nineteenth centuries. The historical evidence indicates that communities viewed these trials seriously. If we can understand what social benefits the trials brought to the people of these towns, we may begin to see that trials even in our own time fulfill cultural needs that extend far beyond dispute resolution and adjudication.

This Note explores how an understanding of the social function of trials may allow us to rethink their value in contemporary society. This Note describes …

Designing American Industrial Policy: General Versus Sectoral Approaches, Steve Charnovitz

GW Law Faculty Publications & Other Works

The United States has been searching for a sensible and effective industrial policy since the 1780s. This study, written at the outset of the Clinton Administration, puts forward a theory of the proper industrial policy for any national government to have, especially the US government. The flaw in most proposals for industrial policy is that they are put forward by and seek to gratify uncompetitive rent-seeking industries. Instead, national industrial policy designers should focus on correcting the market failures that impede pro-growth economic performance. General approaches, such as strengthening public infrastructure, are likely to be much more effective than sectoral …

Look Before You Lend: A Lender’S Guide To Financing Government Contracts Pursuant To The Assignment Of Claims Act, Steven L. Schooner, Heidi M. Schooner

GW Law Faculty Publications & Other Works

This Article briefly summarizes the origin of the Assignment of Claims Act, discusses the lender's ability to obtain a valid assignment of moneys due or to become due under a government contract (but not the numerous other assignment issues that a government contracts practitioner might confront), analyzes the priorities of competing claims against the government for payment of government receivables, and describes the procedure for asserting a claim against the government for payment.

Designing American Industrial Policy: General Versus Sectoral Approaches, Steve Charnovitz

GW Law Faculty Publications & Other Works

The United States has been searching for a sensible and effective industrial policy since the 1780s. This study, written at the outset of the Clinton Administration, puts forward a theory of the proper industrial policy for any national government to have, especially the US government. The flaw in most proposals for industrial policy is that they are put forward by and seek to gratify uncompetitive rent-seeking industries. Instead, national industrial policy designers should focus on correcting the market failures that impede pro-growth economic performance. General approaches, such as strengthening public infrastructure, are likely to be much more effective than sectoral …

The Sentencing Court's Discretion To Depart Downward In Recognition Of A Defendant's Substantial Assistance: A Proposal To Eliminate The Government Motion Requirement, Cynthia Lee

GW Law Faculty Publications & Other Works

In this article, Cynthia Lee examines the tension between judicial discretion and the sentencing guidelines established by the Sentencing Reform Act of 1984. Lee argues that a sentencing court should not require a government motion before departing downward in recognition of a defendant's substantial assistance in the investigation or prosecution of another person. In Part One, Lee provides the historical background leading to the creation of the sentencing guidelines, which were enacted to curb the sentencing disparity resulting from broad judicial discretion. In Part Two, she summarizes the district and appellate court interpretations of 18 U.S.C. Subsection 3553(e) and Subsection …

To The Promised Land: A Century Of Wandering And A Final Homeland For The Due Process And Taking Clauses, Michael L. Davis, Michael Davis

GW Law Faculty Publications & Other Works

The fifth amendment imposes two constraints on the federal government's authority to interfere with private property rights. First, it prohibits the deprivation of property without due process of law. Second, it bars the taking of private property for public use without just compensation. The fourteenth amendment explicitly imposes only the former constraint on the states. Since the late nineteenth century, however, the Supreme Court has interpreted the fourteenth amendment's due process clause to incorporate and make applicable to the states the fifth amendment's taking constraint. This article aims to briefly review the separate natures of deprivations and takings as reflected …

Judicial Activism And Restraint In The Supreme Court's Environmental Law Decisions, Robert L. Glicksman, Richard E. Levy

GW Law Faculty Publications & Other Works

The proper role of the courts in our system of government has long been the source of considerable controversy. The environmental law decisions of the United States Supreme Court illustrate the opportunities for, and implications of, the exercise of judicial activism and restraint in the regulatory context. Beginning in the late 1960s, Congress enacted a series of statutes intended, sometimes at the expense of economic efficiency, to prevent environmental degradation and to force improvements in pollution control technology. Perceiving administrative reluctance to implement these laws, the Supreme Court in the 1960s and early 1970s exercised its power broadly to ensure …

Freedom Of Speech In The Public Workplace: A Comment On The Public Concern Requirement, Cynthia Lee

GW Law Faculty Publications & Other Works

In the twenty years since the Pickering test, the U.S. Supreme Court has done little to clarify what types of public employee speech constitute speech "of public concern" for the purpose of receiving constitutional protection. In this Comment, Cynthia Lee offers a reformulation of the Pickering test by focusing on three factors courts should examine when determining whether an employee who engages in disruptive speech should receive constitutional protection. Part One of this Comment traces the historical background of public employee free speech rights. Part Two examines the employee's initial hurdle of showing that his or her speech was of …