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Articles 1 - 30 of 73
Full-Text Articles in Law
With Great Power Comes Great Responsibility: Proposed Principles Of Digital Due Process For Ict Companies, Dawn C. Nunziato
With Great Power Comes Great Responsibility: Proposed Principles Of Digital Due Process For Ict Companies, Dawn C. Nunziato
GW Law Faculty Publications & Other Works
Information and Communications Technology (ICT) companies like Google/YouTube, Facebook, Yahoo, and Twitter are in control of an enormous amount of expression on the Internet. More so than any individual country, these companies are responsible for making decisions with regard to a vast amount of Internet expression. They host billions of pages of Internet content, while responding on a daily basis to countless requests from countries and individuals around the world to take down content that is deemed objectionable or illegal. These powerful ICT companies have become the de facto sovereigns of cyberspace, with the power to balance freedom of expression …
International Judicial Bodies For Resolving Disputes Between States, Sean D. Murphy
International Judicial Bodies For Resolving Disputes Between States, Sean D. Murphy
GW Law Faculty Publications & Other Works
This chapter of the forthcoming Oxford Handbook on International Adjudication assesses those international judicial bodies that are established principally to resolve disputes between States, notably the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS) and the World Trade Organization (WTO) Appellate Body. Unlike courts oriented toward regional economic integration or regional human rights, such as the European Court of Justice or the Inter-American Court of Human Rights, these courts and tribunals primarily focus on resolving disputes between States. Contentious cases before these bodies, for the most part, do not involve institutional organs or …
Incentive Effects From Different Approaches To Holdup Mitigation Surrounding Patent Remedies And Standard-Setting Organizations, F. Scott Kieff, Anne Layne-Farrar
Incentive Effects From Different Approaches To Holdup Mitigation Surrounding Patent Remedies And Standard-Setting Organizations, F. Scott Kieff, Anne Layne-Farrar
GW Law Faculty Publications & Other Works
Debates about patent policy often focus on the potential for the threat of a court-imposed remedy for patent infringement to cause manufacturing entities and others to suffer patent holdup, especially when standardized industries are involved. This article uses lessons from the broader economics and political science literatures on holdup to explore various approaches to setting remedies for patent infringement—namely injunctions and money damages in the form of lost profits or reasonable royalties—with an eye towards the nature and extent of various forms of holdup they each might generate. In so doing, the article contrasts various narrower sub-categories of the broad …
How Legal Pluralism Is And Is Not Distinct From Liberalism: A Response To Dennis Patterson And Alexis Galán, Paul Schiff Berman
How Legal Pluralism Is And Is Not Distinct From Liberalism: A Response To Dennis Patterson And Alexis Galán, Paul Schiff Berman
GW Law Faculty Publications & Other Works
Alexis Galan and Dennis Patterson largely accept the descriptive account of plural authority described in my book, Global Legal Pluralism: A Jurisprudence of Law Beyond Borders. However, they are concerned that my normative argument for procedural mechanisms, institutional designs, and discursive practices for managing pluralism is simply liberalism in another guise and not pluralist enough. Given that pluralists are usually criticized from the opposite side for an approach that results in too much fragmentation and destabilization, I am in some sense happy to welcome this new critique. After all, a position cannot easily be simultaneously too radical and not …
Political Law, Spencer A. Overton
Political Law, Spencer A. Overton
GW Law Faculty Publications & Other Works
Traditional “election law” or “the law of democracy” concentrated largely on constitutional analysis by judicial actors. That narrow focus, however, distorted scholars’ understanding of the problems confronting democracy and possible solutions. This Foreword proposes that the field should be understood more properly as “political law,” which includes the study of the activities not only of judges but also of policymakers, regulators, and practitioners. The Foreword also examines the concept of “political law community”—a concentration of scholars, judges, policymakers, regulators, and practitioners interested in the subject that can give rise to innovation and creativity. Finally, the Foreword reviews the George Washington …
Natural Gas Fracking Addresses All Of Our Major Problems, Richard J. Pierce Jr
Natural Gas Fracking Addresses All Of Our Major Problems, Richard J. Pierce Jr
GW Law Faculty Publications & Other Works
Politicians and regulators all over the world are debating the merits and demerits of horizontal drilling and fracturing of shale formations to produce natural gas (fracking) and the many legal issues that are raised by fracking. Professor Pierce provides context for those debates by describing the economic, environmental, and geopolitical advantages of fracking.
In The Civic Republic: Crime, The Inner City, And The Democracy Of Arms - Being A Disquisition On The Revival Of The Militia At Large, Robert J. Cottrol, Raymond T. Diamond
In The Civic Republic: Crime, The Inner City, And The Democracy Of Arms - Being A Disquisition On The Revival Of The Militia At Large, Robert J. Cottrol, Raymond T. Diamond
GW Law Faculty Publications & Other Works
This Article examines the modern utility of the Second Amendment's guarantee of "the right to keep and bear arms" in light of the phenomenon of modern crime, particularly black-on-black violence in urban America. Although many advocates of gun control have argued that crime in modern cities is a reason for modifying or severely truncating the right to have arms, the Authors argue that the right to have arms and the Second Amendment's notion of a universal militia can be the basis of a new partnership between police and citizens in urban America. This new partnership can, if properly developed, be …
Hostess And The Search For Workplace Dignity, Michael Selmi
Hostess And The Search For Workplace Dignity, Michael Selmi
GW Law Faculty Publications & Other Works
This symposium essay uses the recent bankruptcy filing by Hostess, which was prompted by the refusal of workers to take additional pay cuts to keep the company afloat, to explore the issue of workplace dignity. The Hostess bakery workers, I suggest, took a stand that proclaimed that employers could not assume that workers would do anything to keep their jobs, that some jobs were not worth having or keeping, particularly when the company had repeatedly failed to provide required pension payments to its workers. I also discuss the various ways in which consumers can seek to influence employment policies, though …
Does International Law Obligate States To Open Their National Courts To Persons For The Invocation Of Treaty Norms That Protect Or Benefit Persons?, Sean D. Murphy
GW Law Faculty Publications & Other Works
In its decisions in the LaGrand and Avena cases, the International Court of Justice (I.C.J. or Court) determined that Article 36 of the Vienna Convention on Consular Relations (VCCR) creates "individual rights" (as opposed to just rights of states) and that the United States has an obligation to provide an individual with meaningful access to U.S. courts to vindicate those rights. Based on those determinations, it might be thought that international law generally obligates a state to open its courts for private persons to vindicate rights or benefits that a treaty accords to them, whether or not the treaty expressly …
The Family And The Market At Wal-Mart, Naomi Schoenbaum
The Family And The Market At Wal-Mart, Naomi Schoenbaum
GW Law Faculty Publications & Other Works
The Supreme Court’s decision in Wal-Mart Stores v. Dukes received much attention for what it means for collective litigation. Far less attention has been paid to what the case reveals about sex discrimination law. This symposium contribution uses an overlooked aspect of the Dukes case — the challenge to Wal-Mart’s relocation policy — as a lens to explore employment discrimination law’s failure to adequately take account of employees’ families in a way that further entrenches the family-market divide and seriously hinders the promise of sex discrimination law.
The challenge to the relocation policy exposes how employment discrimination law simultaneously pays …
The Past, Present And Future Of The Marital Presumption, Naomi R. Cahn, June Carbone
The Past, Present And Future Of The Marital Presumption, Naomi R. Cahn, June Carbone
GW Law Faculty Publications & Other Works
The marital presumption is deeply rooted in Anglo-American law: a husband and wife are assumed to be the father and mother of any child born during their marriage. With the advent of sophisticated genetic testing, no-fault divorce and changing family structures, however, American states are now questioning the continued validity of the presumption. Paternity can be determined with certainty and much of the stigma associated with the circumstances of a child’s birth has disappeared. In the face of these changes, the presumption has been exposed as a legal fiction without a simple meaning, even as it continues to confer parenthood: …
Turning A Blind Eye: Why Washington Keeps Giving In To Wall Street, Arthur E. Wilmarth Jr.
Turning A Blind Eye: Why Washington Keeps Giving In To Wall Street, Arthur E. Wilmarth Jr.
GW Law Faculty Publications & Other Works
As the Dodd–Frank Act approached its third anniversary in mid-2013, federal regulators failed to meet statutory deadlines for more than 60% of the required implementing rules. The financial industry has undermined Dodd–Frank by lobbying regulators to delay or weaken rules, by suing to overturn completed rules, and by pushing for legislation to freeze agency budgets and to repeal Dodd–Frank’s key mandates. The financial industry did not succeed in its efforts to prevent President Obama’s re-election in 2012. Even so, the Obama Administration has continued to court Wall Street’s leaders and has not placed a high priority on implementing Dodd–Frank.
At …
Who's The Father?, Naomi R. Cahn, June Carbone
Who's The Father?, Naomi R. Cahn, June Carbone
GW Law Faculty Publications & Other Works
As this brief online essay observes, the litigation that produced the Supreme Court' 2013 decision in Adoptive Couple v. Baby Girl demonstrates why we are no closer to a definitive resolution of what to do when parents do not share assumptions about how to raise their child. The case illustrates the national lack of agreement on what makes someone a parent. At the core of these differences is the question of how to align parental behavior with the promotion of the child’s interest in stable and secure relationships.
Judicial Innovations To Screen Eyewitness Identifications, Stephen A. Saltzburg
Judicial Innovations To Screen Eyewitness Identifications, Stephen A. Saltzburg
GW Law Faculty Publications & Other Works
This article explains how, in State v. Lawson, 291 P.3d 673 (Or. 2012), the Oregon Supreme Court reconsidered the role trial judges must play in screening eyewitness identification. The court recognized the shortcomings of eyewitness evidence, including a high number of wrongful convictions stemming from misidentification, but also recognized that eyewitness identification may be the only evidence connecting a guilty defendant to a crime. In weighing eyewitness identification admissibility questions, Oregon Evidence Code rules (similar to their Federal Rule of Evidence counterparts) 401, 602 and 701 all must be considered by the trial judge.
Voice Identification Experts, Stephen A. Saltzburg
Voice Identification Experts, Stephen A. Saltzburg
GW Law Faculty Publications & Other Works
This article examines United States v. Schiro, 679 F.3d 521 (7th Cir. 2012) and the issue of reliability of voice identification or "earwitness identification." Given that mistaken eyewitness identification is a major contributor to wrongful convictions, courts should instruct jurors of the frequency of voice identification mistakes. In addition, jurors should be educated as to factors that promote or detract from accuracy. Jurors should be instructed to examine identification testimony carefully.
Jus Ad Bellum, Values, And The Contemporary Structure Of International Law, Sean D. Murphy
Jus Ad Bellum, Values, And The Contemporary Structure Of International Law, Sean D. Murphy
GW Law Faculty Publications & Other Works
In “Religion, Violence, and Human Rights: Protection of Human Rights as Justification for the Use of Armed Force,” 41 Journal of Religious Ethics 1 (2013), James Johnson discusses an important dilemma for contemporary society: when should transnational military force be permitted to protect human rights? Professor Johnson uses the relatively recent doctrine of a “responsibility to protect” as the centerpiece of his paper, characterizing it as a reaction to legal concepts that emerged in the “Westphalian system.” Yet the doctrine, at least as it relates to the use of military force, is not a reaction to that system but, rather, …
Reconciling Personal Information In The United States And European Union, Daniel J. Solove, Paul M. Schwartz
Reconciling Personal Information In The United States And European Union, Daniel J. Solove, Paul M. Schwartz
GW Law Faculty Publications & Other Works
US and EU privacy law diverge greatly. At the foundational level, they diverge in their underlying philosophy: In the US, privacy law focuses on redressing consumer harm and balancing privacy with efficient commercial transactions. In the EU, privacy is hailed as a fundamental right that trumps other interests. Even at the threshold level - determining what information is covered by the regulation - the US and EU differ significantly. The existence of personal information - commonly referred to as “personally identifiable information” (PII) - is the trigger for when privacy laws apply. PII is defined quite differently in US and …
The Financing Of Small Businesses: A Functional Analysis Of Three Legal Models, John Andrew Spanogle Jr.
The Financing Of Small Businesses: A Functional Analysis Of Three Legal Models, John Andrew Spanogle Jr.
GW Law Faculty Publications & Other Works
This paper discusses the three legal regimes which furnish models of laws designed to promote the use of moveables and intangibles to finance small businesses. One is the nantissement de fonds de commerce, a device used in the French law which creates a mortgage on a business - or at least some parts of it. The second is the registered charge of the European Bank's Model Law on Secured Transactions, which is modeled in large part on the English financing device called a floating charge. The third is the North American security interest used in Article 9 of the Uniform …
The Long, Lingering Shadow: Slavery, Race, And Law In The American Hemisphere (Introduction), Robert J. Cottrol
The Long, Lingering Shadow: Slavery, Race, And Law In The American Hemisphere (Introduction), Robert J. Cottrol
GW Law Faculty Publications & Other Works
This essay is the introduction to the recently published book, The Long, Lingering Shadow: Slavery, Race , and Law in the American Hemisphere (University of Georgia Press, 2013). Students of American history know of the law’s critical role in developing a system of racial hierarchy in the United States. The Long, Lingering Shadow shows that this history is best appreciated in a comparative perspective. The volume looks at the parallel legal histories of race relations in the United States, Brazil, and Spanish America. It takes the reader on a journey that begins with the origins of New World slavery in …
What A Difference A Year Makes: The International Court Of Justice's 2012 Jurisprudence, Sean D. Murphy
What A Difference A Year Makes: The International Court Of Justice's 2012 Jurisprudence, Sean D. Murphy
GW Law Faculty Publications & Other Works
An analysis of any particular decision of the International Court of Justice sometimes misses broader, cross-cutting themes that animate the Court’s jurisprudence. This essay, prepared for an April 2013 symposium at the European University Institute, Robert Schuman Centre for Advanced Studies, in Florence, explores a few of the themes that emerged from the Court’s 2012 jurisprudence. First, notwithstanding the development of treaty regimes across a broad array of international law, there remains an enduring relevance of customary international law and general principles of law as sources of international law. Second, when identifying rules of customary international law, there is an …
Can All Women Be Pharmacists?: A Critique Of Hanna Rosin’S The End Of Men, Michael Selmi, Sonia Weil
Can All Women Be Pharmacists?: A Critique Of Hanna Rosin’S The End Of Men, Michael Selmi, Sonia Weil
GW Law Faculty Publications & Other Works
This essay, which appears in a Symposium Edition of the Boston University Law Review, critiques the optimistic view presented by Hannah Rosin in her recent book, The End of Men. In the essay, we critique Rosin’s argument for the rise – and triumph -- of women with a particular focus on educational and employment equality. Relying on current data, we demonstrate that despite women’s educational gains there remains significant segregation among college majors, with women continuing to dominate fields that often lead to low-paying professions (with the notable exception of pharmacists, which we discuss). We also analyze the continuing …
Reflections On The Icj Advisory Opinion On Kosovo: Interpreting Security Council Resolution 1244 (1999), Sean D. Murphy
Reflections On The Icj Advisory Opinion On Kosovo: Interpreting Security Council Resolution 1244 (1999), Sean D. Murphy
GW Law Faculty Publications & Other Works
In its 2010 advisory opinion on Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, the International Court of Justice was called upon to interpret the meaning and legal effects of Security Council Resolution 1244, which had authorized the deployment of international military forces and civilian administration into Kosovo in the aftermath of NATO’s 1999 bombing campaign against Serbia. The Court’s treatment of Resolution 1244 entailed a rich mosaic of issues, some of which were specific to the situation of Kosovo, but others that have ramifications for the interpretation and application of Security Council …
Who Should Determine Whether An Agency’S Explanation Of A Tax Rule Is Adequate?, Richard J. Pierce Jr
Who Should Determine Whether An Agency’S Explanation Of A Tax Rule Is Adequate?, Richard J. Pierce Jr
GW Law Faculty Publications & Other Works
This essay is Professor Pierce’s contribution to the annual Duke Law Journal symposium on administrative law. The topic of this year’s symposium is “Taking Administrative Law to Tax.” The other participants in the symposium make three main points: (1) IRS and Treasury have long engaged in practices that are inconsistent with the APA, specifically including issuance of legislative rules without complying with the notice and comment procedure described in APA section 553; (2) courts should require IRS and Treasury to comply with the APA; and, (3) several opinions issued by the Supreme Court in recent years suggest that courts are …
The Contract Management Body Of Knowledge: Understanding An Essential Tool For The Acquisition Profession, Neal J. Couture, Steven L. Schooner
The Contract Management Body Of Knowledge: Understanding An Essential Tool For The Acquisition Profession, Neal J. Couture, Steven L. Schooner
GW Law Faculty Publications & Other Works
The collective knowledge of any profession is commonly referred to as its body of knowledge. In the acquisition, procurement, or government contracting profession, the collective wisdom of the National Contract Management Association (NCMA) organizes, and periodically updates, a broadly accepted conceptual inventory of the profession’s acquired knowledge. This article describes the NCMA Guide to the Body of Knowledge, how it was developed and is maintained, and its importance and relevance to people concerned with the contract management profession.
Regulatory Design In Context, Robert L. Glicksman, David L. Markell
Regulatory Design In Context, Robert L. Glicksman, David L. Markell
GW Law Faculty Publications & Other Works
This paper offers what we hope is a constructive contribution to the debate about whether legal scholarship is (in)sufficiently tethered to the real world. To the extent there is a disconnect, we believe neither scholars nor the real world of governance are necessarily at fault. Instead, the disconnect stems from a failure to forge connections between theoretical constructs in the academic literature and their applicability to real world conditions. In part, this article is an effort to make such connections through close attention to context in regulatory design.
In an insightful recent article, Agencies as Litigation Gatekeepers, Professor David Freeman …
Citigroup: A Case Study In Managerial And Regulatory Failures, Arthur E. Wilmarth Jr.
Citigroup: A Case Study In Managerial And Regulatory Failures, Arthur E. Wilmarth Jr.
GW Law Faculty Publications & Other Works
Citigroup has served as the poster child for the elusive promises and manifold pitfalls of universal banking. When Citicorp merged with Travelers to form Citigroup in 1998, Citigroup’s leaders and supporters asserted that the new financial conglomerate would offer unparalleled convenience to its customers through “one-stop shopping” for banking, securities and insurance services. They also claimed that Citigroup would have a superior ability to withstand financial shocks due to its broadly diversified activities.
During its early years, Citigroup was embroiled in a series of high-profile scandals, including tainted transactions with Enron and WorldCom, biased research advice, corrupt allocations of shares …
Originalism And The Ratification Of The Fourteenth Amendment, Thomas Colby
Originalism And The Ratification Of The Fourteenth Amendment, Thomas Colby
GW Law Faculty Publications & Other Works
Originalists have traditionally based the normative case for originalism primarily on principles of popular sovereignty: the Constitution owes its legitimacy as higher law to the fact that it was ratified by the American people through a supermajoritarian process. As such, it must be interpreted according to the original meaning that it had at the time of ratification. To give it another meaning today is to allow judges to enforce a legal rule that was never actually embraced and enacted by the people. Whatever the merits of this argument in general, it faces particular hurdles when applied to the Fourteenth Amendment. …
Emotional Intelligence And Negotiation Performance, Charles B. Craver
Emotional Intelligence And Negotiation Performance, Charles B. Craver
GW Law Faculty Publications & Other Works
When individuals negotiate, they employ many personal and intellectual skills. Over the many years I have taught Negotiation courses, I have sought to determine the factors that influence bargaining outcomes. I have found no statistically significant differences based upon the gender or race of the participants, and no correlation with student GPAs. Since Daniel Goleman suggests that if something is not due to IQ it must be based upon EQ, or emotional intelligence, I decided to determine whether there is any correlation between my student perofmance on negotiation exercises and their individual emotional intelligence scores. I had the exceptional assistance …
Digital Planning: The Future Of Elder Law, Naomi R. Cahn
Digital Planning: The Future Of Elder Law, Naomi R. Cahn
GW Law Faculty Publications & Other Works
More than half of individuals over the age of 65 use the Internet or e-mail — and they are a fast-growing population on the Internet. Like most people, however, they have probably not considered how to dispose of their digital life if they become incapacitated or when they die, even though they are in the most likely age group to have drafted a will. Indeed, even if they do engage in planning, they cannot be confident that their wishes will be carried out: only a few states have laws covering probate and digital assets, there is no generally accepted method …
§ 5:33 Waiver Of Privilege — Voluntary Disclosure Or Failure To Claim, Laird Kirkpatrick, Christopher B. Mueller
§ 5:33 Waiver Of Privilege — Voluntary Disclosure Or Failure To Claim, Laird Kirkpatrick, Christopher B. Mueller
GW Law Faculty Publications & Other Works
Evidence subject to the attorney-client privilege is protected against compelled discovery or disclosure. However, the privilege can be waived if the client who holds the privilege (or the attorney acting on his behalf) fails to claim the privilege or voluntarily discloses the subject matter of the privileged communication. This Section discusses the law governing privilege waiver by voluntary disclosure or failure to claim the privilege.