Law Commons^™

Randomized Legal Experimentation, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

Social scientists have performed and analyzed a number of randomized studies of policies, but the legal literature has not addressed whether and how the legal system should incorporate experimental methods. This Article identifies several benefits of randomized legal experimentation and argues that these benefits supports self-executing experiments, whose results would lead to policy changes agreed upon in advance. Randomized experiments can generate information, and self-execution can help ensure that this information affects the policy process. Such experiments may be easier to enact than other legal reforms, because each side of a policy debate may believe that an experiment is likely …

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, …

Complex Litigation Lecture: The Adversary System And Modern Class Action Practice, Roger H. Trangsrud

GW Law Faculty Publications & Other Works

In modern class action practice, the class action device can enormously expand the availability of justice but can also cause substantial injustice to defendants and absent class members when improperly used. The latter is often the case because Rule 23 of the Federal Rules of Civil Procedure has come to be interpreted by the federal courts in ways that mask the proper criteria that should be used in deciding whether to certify a class action. Thus, Rule 23 needs a complete overhaul. First, Rule 23 should be amended to allow appeals as of right, not discretion, from orders granting or …

Foreign Corrupt Practices Act Fundamentals, Jessica Tillipman

GW Law Faculty Publications & Other Works

Foreign Corrupt Practices Act (FCPA) enforcement activity is currently at its highest level since enactment of the statute in 1977. There were more enforcement actions brought in 2007 than in the years from 2004 to 2006 combined. The message is clear - the U.S. Government is committed to FCPA compliance and there is no evidence enforcement activity will slow any time soon. This article provides a general overview of the FCPA, including a primer on the legislation’s core components: the antibribery prohibitions and the books and records provisions. The article also provides practical guidance with respect to the more challenging …

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

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 …

Ball On A Needle: Hein V. Freedom From Religion Foundation And The Future Of Establishment Clause Adjudication, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

In Hein v. Freedom from Religion Foundation, decided in June of 2006, the Supreme Court ruled that federal taxpayers lacked standing to bring an Establishment Clause challenge to a series of conferences designed to promote the Faith-Based and Community Initiative. The explicit grounds for Justice Alito's opinion, speaking for a plurality, is a distinction between legislative decisions to tax and spend for religion - still challengeable by taxpayers - and discretionary executive branch action, which taxpayers may not challenge.

This paper takes a close look at Hein, examines its conceptual underpinnings, and analyzes the questions likely to follow in its …

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 …

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 …

The Role Of Non-Legal Institutions In Chinese Corporate Governance, Donald C. Clarke

GW Law Faculty Publications & Other Works

No abstract provided.

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 …

The Ecology Of Corporate Governance In China, Donald C. Clarke

GW Law Faculty Publications & Other Works

The substantive norms of Chinese corporate governance have been studied extensively inside and outside China. Yet much less attention has been paid to the Chinese institutional environment that determines whether and how far those norms will be made meaningful. While complaints about general lack of enforcement are common, less common are analyzes that concretely tie institutional capacity to specific enforcement problems. This article aims to fill that gap. It surveys a number of state and non-state channels for the enforcement of corporate governance rules and standards in China, from markets to regulatory bodies, looking at the specific capacities of each. …

Patent Law In A Nutshell, Martin J. Adelman, Randall R. Rader, Gordon P. Klancnik

GW Law Faculty Publications & Other Works

This book provides a concise description of the fundamentals of U.S. patent law. The book is organized in sixteen chapters, covering topics such as the foundations of patent law, patent acquisition, anticipation, patent eligibility, patent claims, construction, and remedies. The book discusses the key statutes, rules, and cases that have shaped present-day patent law doctrine.

Book Review Of Gatekeepers: The Professions And Corporate Governance By John C. Coffee, Jr., Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

This is a short review of Gatekeepers by John C. Coffee, Jr.

Harmless Constitutional Error And The Institutional Significance Of The Jury, Roger A. Fairfax Jr.

GW Law Faculty Publications & Other Works

Appellate harmless error review, an early twentieth-century innovation prompted by concerns of efficiency and finality, had been confined to non-constitutional trial errors until forty years ago, when the Supreme Court extended the harmless error rule to trial errors of constitutional proportion. Even as criminal procedural protections were expanded in the latter half of the twentieth century, the harmless error rule operated to dilute the effect of many of these constitutional guarantees - the right to jury trial being no exception. However, while a tradeoff between important process values and the Constitution's protection of individual rights is inherent in the harmless …

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.

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 …

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 …

Too Dependent On Contractors? Minimum Standards For Responsible Governance, Steven L. Schooner, Daniel S. Greenspahn

GW Law Faculty Publications & Other Works

While acknowledging that there are many benefits, challenges, and risks involved in outsourcing, this article asserts that failed implementation, rather than outsourcing policy, explains the government's current (mis)management of its contractors. This article explores the minimum standards for responsible governance following more than 15 years of ill-conceived and inadequate investment in the federal government's acquisition workforce, followed by a governmentwide failure to respond to a dramatic increase in procurement activity. These trends have led to a buying and contract management regime animated by triage, with insufficient resources available for contract administration, management, and oversight. The old adage "an ounce of …

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 Sec's Global Accounting Vision: A Realistic Appraisal Of A Quixotic Quest, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

In the most revolutionary securities law development since the New Deal, the SEC is poised to jettison rules requiring companies to apply recognized US accounting standards by inviting use of a new set of international ones created by a private London-based organization. This radical shift follows decades of gradual movement towards international standards that has gained momentum since 2005 when all listed companies in the European Union were required to use them. For the US, the SEC could give companies the option to use either or establish a medium-term plan to move US companies to international standards within a decade. …

Criminal Law And The Pursuit Of Equality, Donald Braman

GW Law Faculty Publications & Other Works

This Article argues that, to make their vision of justice a reality, egalitarians need to change both their focus and their tactics with respect to criminal law. The tragedy of contemporary criminal justice is not that individual rights are too narrowly construed, but that those living in disadvantaged communities are injured both by crime and counter-productive law enforcement. The remedies that egalitarians have historically looked to - remedies articulated within the framework of individual rights - are poorly suited to address the systematic reproduction of inequality that results.

First, egalitarians will need to shift their focus from the racially motivated …

The Self-Defensive Cognition Of Self-Defense, Donald Braman, Dan M. Kahan

GW Law Faculty Publications & Other Works

Why do certain self-defense cases - ones, e.g., involving battered women who kill their sleeping abusers, or beleaguered commuters who shoot panhandling minority teens - provoke intense political conflict? The conventional and seemingly obvious answer is that people judge such cases in a politically partisan fashion. This paper, however, suggests a subtler and more complex explanation. Social psychologists have shown that individuals resolve factual ambiguities in a manner supportive of their defining values, both to minimize dissonance and to protect their connection to others who share their commitments. This form of self-defensive cognition, it is submitted, shapes individuals' perceptions of …

Putting Missouri V. Holland On The Map, Edward T. Swaine

GW Law Faculty Publications & Other Works

This paper, published as part of symposium on Missouri v. Holland, explores how the circumstances of that case relate to modern criticisms of Congress' Necessary and Proper power and the doctrine of non-self-executing treaties. Focusing on some of the original concerns - for example, the need for further domestic implementation by Canada (and not, to the same degree, by the United States), the need for spending legislation, and the provision of criminal penalties - unsettles not only the understanding of the Supreme Court's decision, but also more recent critiques of the doctrines with which it has long been associated.

Federalism And International Law Through The Lens Of Legal Pluralism, Paul Schiff Berman

GW Law Faculty Publications & Other Works

Sovereignty has long been the dominant lens through which we view both federalism and international law. From the perspective of sovereignty, both federalism and international law are primarily about drawing clear boundaries and demarcations between separate, autonomous power centers. Recently, however, a group of scholars have embraced a more pluralist approach to both American federalism and international law. They have touted the important virtues of jurisdictional redundancy and inter-systemic governance models in which multiple legal and regulatory authorities weigh in regarding the same acts and actors. And they argue that such jurisdictional redundancies are not just a necessary accommodation to …

Climate Change "Crisis" - Struggling For Worldwide Collective Action, Lisa M. Schenck

GW Law Faculty Publications & Other Works

Global climate change due to increased levels of atmospheric greenhouse gases caused by human activity has the potential to threaten life on earth. International cooperation is required to effectively address this threat; however the climate crisis represents a classic collective action problem in response to overexploitation of a global commons. This article explains the global climate change issue, traces efforts to confront it, and argues that inherent difficulties plague collective responses to global commons problems. It pinpoints individual reasons for collective action failures, examines background economic and scientific problems, and analyzes how group factors such as strategy and coalition building …

Standard-Setting By The United Nations Commission On Human Rights: An Overview From Its Inception In 1947 Until The Creation Of The Human Rights Council In 2006, Dinah L. Shelton

GW Law Faculty Publications & Other Works

This article discusses the standard-setting role of the Commission and Sub-Commission of the United Nations. The article describes the creation of the Commission, the Universal Declaration of Human Rights, the Commission’s art in creating human rights treaties, and the use of non-binding instruments and other methods of standard-setting. The article concludes that the Commission accomplished a moderate amount and argues that the UN must retain an independent body to ensure protection of human rights.

Why Do Women Lawyers Earn Less Than Men? Parenthood And Gender In A Survey Of Law School Graduates, Neil H. Buchanan

GW Law Faculty Publications & Other Works

Using a dataset of survey responses from University of Michigan Law School graduates from the classes of 1970 through 1996, I find that fathers tend to receive higher salaries than non-fathers (a "daddy bonus"). In addition, mothers earn less than non-mothers (a "mommy penalty"). There is also some statistical support for the inference that there is a penalty associated purely with gender (women earning less than men, independent of parenthood), another result that is unique to the literature. Analyzing full- or part-time status as well as work hours also suggests a key difference between women and men. Those who take …

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 …

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 …