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Full-Text Articles in Law

Family Leave And The Gender Wage Gap, Michael Selmi Jan 2000

Family Leave And The Gender Wage Gap, Michael Selmi

GW Law Faculty Publications & Other Works

In this article, I argue that the key to achieving greater gender equality in the workplace is finding a way to change the behavior of men with respect to the care of children. Until now, most suggestions have focused on changing the behavior of women or employers, but women continue to face significant disadvantages in the workplace despite substantial changes in their labor force behavior. In the first part of the article, I analyze the latest data and conclude that the gender pay gap reflects both women's actual labor market behavior, which still differs from men's, and employers ...


An Observation And A Strange But True 'Tale': What Might The Historical Trials Of Animals Tell Us About The Transformative Potential Of Law In American Culture?, Paul Schiff Berman Jan 2000

An Observation And A Strange But True 'Tale': What Might The Historical Trials Of Animals Tell Us About The Transformative Potential Of Law In American Culture?, Paul Schiff Berman

GW Law Faculty Publications & Other Works

Few would dispute that law and legal procedures lie at the core of American self-identity and are woven deeply into the fabric of our culture. Indeed, our nation's faith in law has frequently been the subject of criticism. Most recently, self-proclaimed "communitarian" commentators have warned that our insistence on legal solutions is encouraging us to become a society of litigants whose attachment to "rights talk" and legal battles is thwarting our ability to reach consensus on social issues or instill shared values in our communities. While there are many possible responses to such a critique, this Essay offers one ...


Subsidiarity And Self-Interest: Federalism At The European Court Of Justice, Edward T. Swaine Jan 2000

Subsidiarity And Self-Interest: Federalism At The European Court Of Justice, Edward T. Swaine

GW Law Faculty Publications & Other Works

Subsidiarity is the principle which the European Community has begun applying to consider whether federal legislation is necessary, or whether action by the Member States will suffice. This article considers whether subsidiarity should constrain the Court of Justice's jurisprudence as well. It begins by analyzing the federalism problems posed by the Court's case law concerning remedies for the violation of Community law, in particular the doctrine holding Member States liable in damages for failing properly to implement Community directives. After concluding that the Court is required to review this jurisprudence for consistency with the subsidiarity principle, and that ...


Negotiating Federalism: State Bargaining And The Dormant Treaty Power, Edward T. Swaine Jan 2000

Negotiating Federalism: State Bargaining And The Dormant Treaty Power, Edward T. Swaine

GW Law Faculty Publications & Other Works

The orthodox view that states have no role in U.S. foreign relations is not only inconsistent with their place in the modern global economy, but the constitutional basis for a "dormant" bar on state participation - that is, absent a controlling federal statute or treaty - is obscure. Revisionist scholarship, and recent Supreme Court case law, suggest that Congress alone should decide when the states must stay out of foreign relations.

In this article, I argue that both the orthodox and revisionist views neglect an alternative basis for a judicial role - the Treaty Clause, enforced through the dormant treaty power. The ...


Review Of The Expanding Role Of State And Local Governments In U.S. Foreign Affairs, Edward T. Swaine Jan 2000

Review Of The Expanding Role Of State And Local Governments In U.S. Foreign Affairs, Edward T. Swaine

GW Law Faculty Publications & Other Works

This Article reviews The Expanding Role of State and Local Governments in U.S. Foreign Affairs by Earl H. Fry, a book accounting how states and localities are devoting increasing resources to developing their own foreign policy. Fry description is useful and timely, but his allusions to the constitutional basis for a federal monopoly on foreign policy are too summary. As a policy matter, his suggestion for a consensus-driven solution to reconcile competing state and national interests depends on the ability of stakeholders to reach agreements in an increasingly politicized environment, and downplays the importance of foreign actors in these ...


Student Athlete Welfare In A Restructured Ncaa, W. Burlette Carter Jan 2000

Student Athlete Welfare In A Restructured Ncaa, W. Burlette Carter

GW Law Faculty Publications & Other Works

The article provides a "first look" at the restructuring that the National Collegiate Athletic Association (“NCAA”) underwent in 1997, and considers restructuring's impact on the NCAA and student-athletes. It begins with a discussion on the restructuring’s effect on the welfare of student-athletes. The first section provides a brief overview of the NCAA from its origins up to the restructuring. The next section puts the restructuring in its historical and political context and discusses internal debates over minority and gender issues. Finally, section three looks to the future of amateur athletics and student-athlete welfare in a restructured NCAA. The ...


En Banc Revisited, Michael B. Abramowicz Jan 2000

En Banc Revisited, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

Legal commentators have proposed a variety of solutions to the perceived problems of the U.S. courts of appeals, from splitting large circuits to assuring partisan balance in panel decisions. They have always assumed, however, that judges a particular appellate court should have sole responsibility for creating the law of that circuit, except when caseload pressures make it necessary to borrow visiting judges. In this Essay, Professor Abramowicz proposes using visiting judges in a more important role: en banc decision-making. Under this proposal, en banc decisions for one circuit would be made entirely by courts of appeals judges randomly selected ...


Unexploded Ordnance (Uxo): An Explosive Issue?, Lisa M. Schenck Jan 2000

Unexploded Ordnance (Uxo): An Explosive Issue?, Lisa M. Schenck

GW Law Faculty Publications & Other Works

The recent increase in transition of military ranges to nonmilitary uses has increased public and environmental regulatory agency concern regarding ranges. Much of this concern stems from the identification of Unexploded Ordnance and its constituents as possible contributing sources of contamination of groundwater and soils. Making the situation potentially more explosive are EPA Region 1 actions at one of those installations, Massachusetts Military Reservation, where groundwater contamination has halted live-firing on ranges. This article highlights recent developments in the areas of munitions and ranges that influence the ability of installations to use their ranges.


Anything Goes: Examining The State's Interest In Protecting Children From Controversial Speech, Catherine J. Ross Jan 2000

Anything Goes: Examining The State's Interest In Protecting Children From Controversial Speech, Catherine J. Ross

GW Law Faculty Publications & Other Works

Despite doctrinal requirements that the state establish a compelling interest to justify content-based regulations on speech, Professor Ross argues that courts have routinely taken the government's interest at face value when it argues that it inhibits speech to protect children. The Article examines the Supreme Court's test which requires the state to establish a compelling interest by articulating the precise harm it wishes to address, demonstrating a nexus between that identified harm and the regulated speech, and showing that restriction of the speech will alleviate the harm. The author seeks to reframe the discussion surrounding controversial speech and ...


Federalism And Mass Tort Litigation, Roger H. Trangsrud Jan 2000

Federalism And Mass Tort Litigation, Roger H. Trangsrud

GW Law Faculty Publications & Other Works

There is no justification for displacing state tort law by adopting a new federal law of torts in order to facilitate mass tort class actions in federal court. Tort law law has traditionally and properly been the province of state law. The principal problem of mass tort litigation for the federal government is the congestion in the federal district courts caused by the avalanche of state tort claims that have found their way there. This has occurred for reasons not attributable to the federal government. Specifically, state legislatures and state supreme court justices have expanded available claims and remedies under ...


True Reparations, W. Burlette Carter Jan 2000

True Reparations, W. Burlette Carter

GW Law Faculty Publications & Other Works

Part of a George Washington University symposium on race and law, this article is a response to Professor Anthony Cook’s symposium contribution on reparations. According to this writer, Professor Cook argues that only public atonement supported by economic restitution will provide reconciliation between whites and blacks. The article interprets the three steps Professor Cook puts forth to heal the wounds between blacks and whites as confession, restoration and reconciliation. While the article does not dismiss the idea of reparations, and even offers legal support for it from the fields of Torts and Trusts and Estates, it argues that reparations-seeking ...


The Impact Of Student Gpas And A Pass/Fail Option On Clinical Negotiation Course Performance, Charles B. Craver Jan 2000

The Impact Of Student Gpas And A Pass/Fail Option On Clinical Negotiation Course Performance, Charles B. Craver

GW Law Faculty Publications & Other Works

This article explores the possible correlation between student GPAs when they graduate and the impact of a pass/fail option on Negotiation course results. The course requires students to engage in a series of negotiation exercises, with the comparative results having a direct impact on final course grades. I wanted to determine whether better students, reflected in GPAs, would achieve better negotiating results based upon the thought that better students are more intelligent, more articulate, and moreindustrious. I examined data from fifteen classes and found no statistically significant correlation between student GPAs and negotiation results. I believe that these findings ...


Facilitating Scientific Research: Intellectual Property Rights And The Norms Of Science - A Response To Rai And Eisenberg, F. Scott Kieff Jan 2000

Facilitating Scientific Research: Intellectual Property Rights And The Norms Of Science - A Response To Rai And Eisenberg, F. Scott Kieff

GW Law Faculty Publications & Other Works

Arti Rai's article in the Fall 1999 issue of the Northwestern University Law Review explores the proper use of both legal rules and prescriptive norms to shape behavior in the basic biological research community. Rai's article builds upon the extensive work in this area by Rebecca Eisenberg, which first attained prominence through Eisenberg's article in the December 1987 issue of the Yale Law Journal. Eisenberg concludes that the use of patents in the area of basic biological research may frustrate central norms of the community. Rai prescribes concerted public and private action as the best tools for ...


Federal Environmental Law In The 'New Federalism' Era, Robert L. Glicksman, Stephen Mcallister Jan 2000

Federal Environmental Law In The 'New Federalism' Era, Robert L. Glicksman, Stephen Mcallister

GW Law Faculty Publications & Other Works

As we wrote last year, the U.S. Supreme Court has shown considerable interest during the past decade in reconsidering many constitutional doctrines regarding federalism and congressional power. In a series of important decisions, always decided with the same five justices in the majority, the Court has begun to redefine the federal-state relationship and the scope of federal authority. The past term generally continued that trend, with one important commerce power decision, one significant Eleventh Amendment/Fourteenth Amendment decision, and a number of decisions that involve or affect federalism and the scope of federal power, although the Court sometimes relied ...


Karl Llewellyn's Fading Imprint On The Jurisprudence Of The Uniform Commercial Code, Gregory E. Maggs Jan 2000

Karl Llewellyn's Fading Imprint On The Jurisprudence Of The Uniform Commercial Code, Gregory E. Maggs

GW Law Faculty Publications & Other Works

When Karl Llewellyn directed the creation of the Uniform Commercial Code (U.C.C.), he naturally wanted to implement his jurisprudential ideas. He succeeded in giving the U.C.C. at least five important features inspired by Legal Realism. In particular, as a result of his influence, the U.C.C.: (1) favored open-ended standards over firm rules; (2) avoided formalities; (3) required and facilitated the "purposive interpretation" of its provisions; (4) did not attempt to provide an exclusive statement of the law, but instead directed courts to supplement its rules with general legal and equitable principles; and (5) provided ...


German Social Market In The World Of Global Finance: Pension Investment Management And The Limits Of Consensual Decision Making, Daniel I. Gordon, Daniel Mansfield, Adam Tickell Jan 2000

German Social Market In The World Of Global Finance: Pension Investment Management And The Limits Of Consensual Decision Making, Daniel I. Gordon, Daniel Mansfield, Adam Tickell

GW Law Faculty Publications & Other Works

In a previous paper we emphasised the changing national and international accounting standards used to measure net pension liability. Beginning with the implications of this analysis for the financing of German employer-sponsored pensions, in this paper we focus upon the internal management of corporate pension assets and liabilities. Two issues drive the analysis. One has to do with the emerging coalescence of interests joining corporate management and shareholders in relation to the management of pension assets and liabilities. The second issue has to do with the allocation of risk and uncertainty between social partners when negotiating the financing and final ...


Cyberspace And The State Action Debate: The Cultural Value Of Applying Constitutional Norms To 'Private' Regulation, Paul Schiff Berman Jan 2000

Cyberspace And The State Action Debate: The Cultural Value Of Applying Constitutional Norms To 'Private' Regulation, Paul Schiff Berman

GW Law Faculty Publications & Other Works

Regulation in cyberspace does not consist only of laws issued and enforced by sovereigns. Instead, private parties and standard-setting bodies, employing the technology of online interaction, will increasingly be able to regulate activity, which might potentially upset many of the provisional balances we as a society have struck in areas such as free speech, privacy, and intellectual property. The question then becomes: how do we evaluate this "private" regulation? Are constitutional norms applicable? Answering such questions requires a reinvestigation of legal doctrine and theory concerning the distinction between "state action" (which is generally subject to constitutional constraints) and "private ordering ...


Cautious Skepticism About The Benefit Of Adding More Formalities To The Manual For Courts-Martial Rule-Making Process: A Response To Captain Kevin J. Barry, Gregory E. Maggs Jan 2000

Cautious Skepticism About The Benefit Of Adding More Formalities To The Manual For Courts-Martial Rule-Making Process: A Response To Captain Kevin J. Barry, Gregory E. Maggs

GW Law Faculty Publications & Other Works

In Modernizing the Manual for Courts-Martial Rule-Making Process: A Work in Progress, 165 Mil. L. Rev. 237 (2000), Captain Kevin J. Barry, U.S. Coast Guard (Retired), advances seven specific proposals for improving the methods by which the procedural and evidentiary rules for courts-martial are made. This article addresses Captain Barry-s proposals. On the whole, none of the proposals is radical or dangerous. Indeed, each is closely analogous to procedures in the federal civilian criminal justice system. In addition, no insurmountable legal obstacles would prevent their adoption. Yet, closer inspection suggests that, in light of all the progress that already ...


En Banc Revisited, Michael B. Abramowicz Jan 2000

En Banc Revisited, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

Legal commentators have proposed a variety of solutions to the perceived problems of the U.S. courts of appeals, from splitting large circuits to assuring partisan balance in panel decisions. They have always assumed, however, that judges a particular appellate court should have sole responsibility for creating the law of that circuit, except when caseload pressures make it necessary to borrow visiting judges. In this Essay, Professor Abramowicz proposes using visiting judges in a more important role: en banc decision-making. Under this proposal, en banc decisions for one circuit would be made entirely by courts of appeals judges randomly selected ...


Accounting Standards And German Supplementary Pensions: The Emerging Framework Underpinning Global Finance, Daniel I. Gordon Jan 2000

Accounting Standards And German Supplementary Pensions: The Emerging Framework Underpinning Global Finance, Daniel I. Gordon

GW Law Faculty Publications & Other Works

In this paper we focus on the current status of German employer-sponsored supplementary pensions in the context of moves towards the harmonization of international accounting standards. We emphasize the changing standards used to measure pension liability, and the consequences of these changes for (firstly) corporate management discretion and (secondly) German under-funded systems of defined benefit pensions. In combination, we show that claimed historical differences between the Anglo-American market for corporate control and the German system of entrenched management within interlocking boards of supervision are now less compelling than assumed. Adoption of international and US financial accounting standards by leading German ...


Exit, Voice, And Values On The Net, Dawn C. Nunziato Jan 2000

Exit, Voice, And Values On The Net, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

Professor Lawrence Lessig makes the (rather dire) prediction in Code and Other Laws of Cyberspace that the Internet will be transformed from an unregulated medium into a highly regulated one. Lessig posits that the Net will largely be regulated not by the government but by commercial entities - in particular, by the software (or code) written by entities such as AOL and IBM. While the government's regulatory power is limited by the Constitution, regulation by commercial entities is not. For example, Internet service providers can censor "indecent" speech on the Net largely free of constitutional constraints. The "Net libertarians" applaud ...


The Inherent Limits Of Judicial Control Of Agency Discretion: The D.C. Circuit And The Nondelegation Doctrine, Richard J. Pierce Jr Jan 2000

The Inherent Limits Of Judicial Control Of Agency Discretion: The D.C. Circuit And The Nondelegation Doctrine, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

The article discusses American Trucking Associations v EPA, in which a two-judge majority of a DC Circuit panel held that the section of the Clean Air Act that authorizes EPA to set primary air quality standards applicable to criteria pollutants is unconstitutional as interpreted by EPA. The court held the EPA interpretation unconstitutional because it provides no criteria for determining how much pollution is too much. The court remanded to allow EPA the opportunity to adopt a saving interpretation of the statute by adopting a binding determinate decision making standard that EPA and a court can apply to determine how ...


Representing The Poor And Homeless: Innovations In Advocacy Tackling Homelessness Through Economic Self-Sufficiency, Susan R. Jones Jan 2000

Representing The Poor And Homeless: Innovations In Advocacy Tackling Homelessness Through Economic Self-Sufficiency, Susan R. Jones

GW Law Faculty Publications & Other Works

The homeless community is diverse, and the causes of homelessness are complex. As part of a Symposium entitled, "Representing the Poor and Homeless: Innovations in Advocacy Tackling Homelessness through Economic Self-sufficiency," the author discusses the challenges faced by those who attempt to address the needs of homeless people. This essay focuses on policies and innovations in income creation for homeless people. The author advocates for integrated approaches to homelessness prevention and policies that combine housing, income, and social services. In this regard, the author explores economic self-sufficiency through such innovations as microenterprise development, a rapidly growing and innovative strategy in ...


Commentary: The Hague Draft Convention On Jurisdiction: An Introduction To The Intellectual Property Issues, Martin J. Adelman Jan 2000

Commentary: The Hague Draft Convention On Jurisdiction: An Introduction To The Intellectual Property Issues, Martin J. Adelman

GW Law Faculty Publications & Other Works

This brief chapter discusses the Hague Convention in general terms and compares it to the Brussels Convention. The chapter notes that Article 3 provides information about where a person can be sued and Article 12 discusses instances of “local action,” where an issue can only be deal with in a particular place. The current draft of the Hague Convention does not indicate whether patent infringement cases will be tried under regular rules or only by the local courts. Finally, the Convention does not mention conflicts of law and is different than the Brussels Convention in that “it does not permit ...


A Grace Period And European Patent Law: It's Time For Change, Martin J. Adelman Jan 2000

A Grace Period And European Patent Law: It's Time For Change, Martin J. Adelman

GW Law Faculty Publications & Other Works

This article begins by discussing the first-to-file and first-to-invent approaches to inventions. Next, the article describes how each of the two systems defines “prior art” and argues that employing the first-to-invent approach has two problems: a lack of incentive to file early and difficulty in advising an inventor about what qualifies as prior art. In the United States, something counts as prior art “[i]f the publication date is more than one year before the actual filing date.” The article concludes that Europe would benefit from adding a grace period because it would make the system fairer and create more ...


Reparations For Victims Of International Crimes, Dinah L. Shelton Jan 2000

Reparations For Victims Of International Crimes, Dinah L. Shelton

GW Law Faculty Publications & Other Works

This chapter discusses available remedies in the International Criminal Court for victims of crimes. The chapter begins by quoting Article 75.1 of the Rome Statute and discussing various international treaties that guarantee a remedy. Next, the chapter discusses the reasons for providing remedies, and notes that money provides an equal value to the victim, while restitution or rectification replaces exactly what the victim lost. The chapter notes that compensation is the most frequently provided remedy. Although I argue that accuracy of compensation calculations is imperative, the better solution is to use rectification or restitution instead of compensation. The chapter ...


The Use Of The Doctrine Of Equivalents To Fix Mistakes A Mistake?, Martin J. Adelman Jan 2000

The Use Of The Doctrine Of Equivalents To Fix Mistakes A Mistake?, Martin J. Adelman

GW Law Faculty Publications & Other Works

Through empirical research, this article examines whether the patent system of the United States should limit the doctrine of non-textual infringement to obvious after-arising equivalents. Using five decisions from multiple jurisdictions, including the United States, Japan and Great Britain, the article explains the various patent systems and limitations those patent systems face in deciding whether an infringement is an obvious equivalent. The article then discusses the interpretations of patent claims and the policy implications of those interpretations. The article presents the policy argument for patentees to cover the costs associated with patent prosecution because the alternative would be burdensome costs ...


Let's Clear The Air: Enforcing Civil Penalties Against Federal Violators Of The Clean Air Act, Lisa M. Schenck Jan 2000

Let's Clear The Air: Enforcing Civil Penalties Against Federal Violators Of The Clean Air Act, Lisa M. Schenck

GW Law Faculty Publications & Other Works

The Clean Air Act (CAA) includes enforcement provisions by which violators of the Act can be held civilly liable for penalties. When federal agencies violate the CAA, however, the Constitution and the sovereign immunity doctrine serve as obstacles to civil enforcement. Federal agencies contend that the Constitution's separation of powers doctrine, unitary executive theory, and "case or controversy" justiciability requirement bar the United States Environmental Protection Agency (EPA) from proceeding against them in civil enforcement actions. This Article addresses these arguments and examines the executive branch's approach to enforcing the Act against federal agencies. Federal agencies also have ...


Wetlands Protection: Regulators Need To Give Credit To Mitigation Banking, Lisa M. Schenck Jan 2000

Wetlands Protection: Regulators Need To Give Credit To Mitigation Banking, Lisa M. Schenck

GW Law Faculty Publications & Other Works

Since wetlands provide a myriad of ecology benefits, programs to protect them, as well as strategies to compensate affected parties for their loss, have evolved over the past two decades. Under Section 404 of the Clean Water Act, a market-based management strategy called wetland mitigation banking requires developers to compensate for wetland loss or degradation resulting from their projects prior to developing the area. The federal government has endorsed this mitigation banking as an appropriate method to restore, create, enhance, and even preserve wetlands and thus compensate for unavoidable wetland losses. Under the compensation program, instead of requiring land developers ...


Remedies In Animal-Related Litigation, Joan E. Schaffner Jan 2000

Remedies In Animal-Related Litigation, Joan E. Schaffner

GW Law Faculty Publications & Other Works

This chapter discusses the challenges of determining appropriate remedies in cases involving animals with a focus on companion animals. Damages fall into one of two categories: substitutionary relief, which is based on the value of loss of the animal, and specific relief, which “seeks to either avoid harm, undo the harm, or repair the harm in kind.” In private law cases the primary relief sought is substitutionary damages. The changing role of companion animals in people’s lives is leading to an expanding range of available damages, such as companionship value, emotional distress and punitive damages. Of course, the jurisdiction ...