Law Commons^™

The Polymorphic Principle And The Judicial Role In Statutory Interpretation, Jonathan R. Siegel

GW Law Faculty Publications & Other Works

The Supreme Court's statutory interpretation cases present an ongoing clash between mechanical, textualist, rule-based interpretive methods that seek to limit the role of judicial choice and more flexible methods that call upon courts to exercise intelligent judgment. In the recent case of Clark v. Martinez, 125 S. Ct. 716 (2005), the mechanical view of judging prevailed. The Court applied a purported canon of statutory construction that requires that a single phrase in a single statutory provision must always have a single meaning. The Court said that any other interpretive approach would be novel and dangerous. The Court is wrong on …

A Model Regime Of Privacy Protection (Version 2.0), Daniel J. Solove, Chris Jay Hoofnagle

GW Law Faculty Publications & Other Works

This version incorporates and responds to the many comments that we received to Version 1.1, which we released on March 10, 2005.

Privacy protection in the United States has often been criticized, but critics have too infrequently suggested specific proposals for reform. Recently, there has been significant legislative interest at both the federal and state levels in addressing the privacy of personal information. This was sparked when ChoicePoint, one of the largest data brokers in the United States with records on almost every adult American citizen, sold data on about 145,000 people to fraudulent businesses set up by identity thieves. …

Melville's Billy Budd And Security In Times Of Crisis, Daniel J. Solove

GW Law Faculty Publications & Other Works

During times of crisis, our leaders have made profound sacrifices in the name of security, ones that we later realized need not have been made. Examples include the Palmer Raids, the McCarthy Era anti-Communist movement, and the Japanese-American Internment. After September 11th, this tragic history repeated itself. The Bush Administration has curtailed civil liberties in many ways, including detaining people indefinitely without hearings or counsel. These events give Herman Melville's "Billy Budd" renewed relevance to our times. "Billy Budd" is a moving depiction of a profound sacrifice made in the name of security. This essay diverges from conventional readings that …

The Faith-Based Initiative And The Constitution, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

This paper, originally presented as the Annual Lecture at DePaul University's Church/State Center, addresses the many constitutional issues raised by President George W. Bush's Faith-Based and Community Initiative. Part I of the paper provides the political and legal background of the Initiative, up to and including the recent flurry of Executive Branch activity to implement it. Part II of the paper constructs the constitutional prism through which we believe the Initiative, like all constitutional questions relating to religion, should be viewed. In particular, we analyze the law of the Religion Clauses in terms of the constitutional distinctiveness or non-distinctiveness of …

Did Universal Banks Play A Significant Role In The U.S. Economy's Boom-And-Bust Cycle Of 1921-33? A Preliminary Assessment, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

Commercial banks were leading participants in the U.S. securities markets during the great bull markets of the 1920's and the 1990's. Those stock market booms and the crashes that followed were extraordinary events. Is it merely a coincidence that the two most dramatic stock market booms and crashes in U.S. history occurred during periods when commercial banks played major roles in our securities markets? Or did the exercise of universal banking powers contribute to the financial and economic conditions that produced both episodes? This essay is the first installment of a larger project that seeks to answer these questions.

This …

Katrina's Continuing Impact On Procurement - Emergency Procurement Powers In H.R. 3766, Christopher R. Yukins, Joshua I. Schwartz

GW Law Faculty Publications & Other Works

As Hurricane Katrina relief efforts grow into the billions of dollars, the U.S. Congress is considering additional legislation to liberalize procurement, including H.R. 3766, co-sponsored by Representatives Kenny Marchant and Tom Davis. In these comments on the proposed legislation, Professors Christopher Yukins and Joshua Schwartz asked whether the proposed changes, which would eviscerate competition for most procurement related to disaster relief, are truly necessary. Professor Yukins suggests that, though it might in some circumstances be necessary to dismantle the federal regulatory regime to accommodate a wave of new firms in the federal market, there is too little evidence yet to …

Towards A Cosmopolitan Vision Of Conflict Of Laws: Redefining Governmental Interests In A Global Era, Paul Schiff Berman

GW Law Faculty Publications & Other Works

It has now been ten years since the idea of global online communication first entered the popular consciousness. And while the internet has undoubtedly opened up new worlds of interaction and cooperation across borders, this increased transnational activity has also at times inspired parochialism, at least among the legislatures and courts of nation-states around the globe. Such assertions of national authority have helped to reawaken scholarly interest in the classic triumvirate of topics historically grouped together under the rubric of conflicts of laws: jurisdiction, choice of law, and recognition of judgments.

In a previous article, I argued that territorially-based conceptions …

The 'Wildavsky Heuristic': The Cultural Orientation Of Mass Political Opinion, Donald Braman, John Gastil, Dan M. Kahan, Paul Slovic

GW Law Faculty Publications & Other Works

In a provocative 1987 article, Aaron Wildavsky asserted that culture operates as the fundamental orienting force in the generation of mass public opinion. The meanings and interpersonal associations that inhere in discrete ways of life, he argued, shape the heuristic processes by which politically unsophisticated individuals, in particular, choose what policies and candidates to support. We systematize Wildavsky's theory and integrate it with existing accounts of mass opinion formation. We also present the results of an original national survey (N = 1843), which found that the cultural orientations featured in Wildavsky's writings accounted for policy-related attitudes on gun control, environment, …

The Problem Of Patent Underdevelopment, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

Commentators have long recognized that much of the work of commercializing an invention occurs after a patent is received. They have not recognized, however, that by the time market conditions make commercialization potentially attractive, the remaining patent term might be sufficiently short that a patentee will not develop an invention or will not spend as much on development as if more patent term remained. The concern about patent underdevelopment provides a counterweight to patent prospect theory, which urges that patents be issued relatively early. By insisting on a substantial degree of achievement before patenting, the patent system reduces the risk …

The Death Of The Public Forum In Cyberspace, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

The Internet has been conceptualized as a forum for free expression with near limitless potential for individuals to express themselves and to access the expression of others. But that potential is in danger of being seriously hampered as a result of the privatization of Internet forums for expression. During the Clinton Administration, the government undertook measures to turn over many aspects of the Internet to private entities. The end result of this increased private control is that, in contrast to real space, speech in cyberspace occurs almost exclusively within privately-owned places. The public/private balance that characterizes real space and renders …

Private Standards In Public Law: Copyright, Lawmaking And The Case Of Accounting, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

Government increasingly leverages its regulatory function by embodying in law standards that are promulgated and copyrighted by non-governmental organizations. Departures from such standards expose citizens to criminal, civil and administrative sanctions, yet private actors generate, control and limit access to them. Despite governmental ambitions, no one is responsible for evaluating the legitimacy of this approach and no framework exists to facilitate analysis. This Article contributes an analytical framework and, for the federal government, nominates the Director of the Federal Register to implement it.

Analysis is animated using among the oldest and broadest examples of this pervasive but stealthy phenomenon: embodiment …

Accountability Of State And Non-State Actors For Human Rights Abuses In The 'War On Terror', Laura T. Dickinson

GW Law Faculty Publications & Other Works

The decisions regarding detainees in the so-called "war on terror" - Hamdi, Padilla, and Rasul - leave a number of questions unresolved. This essay focuses on one question in particular: What happens when terrorists are detained not by U.S. authorities, but by private contractors hired by U.S. authorities? Domestically and internationally, we are seeing an increasing turn to private contractors performing what we might think of as core governmental functions. Accordingly, it is vital to consider to what extent private actors involved in the treatment of detainees in the war on terror can be held accountable for their actions. Although …

Encyclopedia Of Genocide And Crimes Against Humanity, Dinah L. Shelton

GW Law Faculty Publications & Other Works

This three-volume encyclopedia contains information and photographs about historical and recent instances of genocide and crimes against humanity. The introduction provides a brief history of recognition and definitions of genocide and related war crimes. The volumes focus on the political leaders in charge of the genocides and war crimes in addition to other facts about the crimes themselves.

Sarbanes-Oxley, Corporate Federalism, And The Declining Significance Of Federal Reforms On State Director Independence Standards, Lisa M. Fairfax

GW Law Faculty Publications & Other Works

Commentators have argued that the Sarbanes-Oxley Act of 2002 ("Sarbanes-Oxley" or the "Act") raises federalism concerns because it regulates the internal affairs of a corporation, including the composition of, and qualifications for, corporate boards, in a manner traditionally reserved to states. This Article responds to those claims, arguing that the Act reflects a relatively minimal intrusion into state law, particularly with regard to issues of director independence. This Article further argues that the Act's failure to disturb state law on these issues may impede its ability to tighten director independence standards and by extension may undermine its ability to improve …

Sex Discrimination In The Nineties, Seventies Style: Case Studies In The Preservation Of Male Workplace Norms, Michael Selmi

GW Law Faculty Publications & Other Works

The prevailing sentiment today is that overt intentional sex discrimination in the workplace has receded substantially and has been replaced by more complicated practices of subtle or structural discrimination often tied to women's family commitments. This article challenges that consensus by exploring the rise of class action sex discrimination cases that have uncovered what ought to be defined as overt intentional discrimination with a design to preserve existing male norms in the workplace. The article analyzes cases that have arisen in the securities and grocery industries, as well as a spate of class action sexual harassment cases, all of which …

The Next Generation Of Transnational/Domestic Constitutional Law Scholarship: A Reply To Professor Tushnet, David Fontana

GW Law Faculty Publications & Other Works

In this reply to an article by Professor Mark Tushnet, David Fontana argues that we should move beyond debates about whether transnational law should ever be used in American law, and instead focus on the practical details of how such incorporation will occur. Fontana argues that Professor Tushnet's compelling article overstates the importance of the most recent developments in the use of transnational law as persuasive authority, but that even with the history of moderate usage of transnational law, there are still some unique concerns with using transnational law as persuasive authority. Fontana also argues that Professor Tushnet's discussion of …

International Standards And The Wto, Steve Charnovitz

GW Law Faculty Publications & Other Works

This study provides an overview of how the World Trade Organization rules relate to international standards, that is, standards propounded by some international entity. The topic of standards is a cross-cutting issue in the WTO because rules regarding international standards appear in several of the covered WTO agreements. The paper contains several parts. Part I of the paper explores the meaning of the term international standard and adopts a broad definition for analytical purposes. Part II introduces a typology for international standards. Part III discusses why international standards are important to economic development. Part IV examines some of the key …

Law And Accounting: Cases And Materials, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

Accounting textbooks for law or business schools invariably provide secondary narrative presentations of materials in the authors' own words. A better approach to learning this subject is to present thematically arranged original accounting pronouncements. The design this innovative book, helps readers appreciate how accounting is a tool that provides conceptual organization to economic exchange. The tool facilitates analyzing legal, business and public policy aspects of the transactions that accounting addresses. The original accounting standards, as well as SEC enforcement actions, presented in this book illuminate why transactions are pursued and related decisions made, economic aspects of transactions, and the conceptual …

Fourth Amendment Codification And Professor Kerr's Misguided Call For Judicial Deference, Daniel J. Solove

GW Law Faculty Publications & Other Works

This essay critiques Professor Orin Kerr's provocative article, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801 (2004). Increasingly, Fourth Amendment protection is receding from a litany of law enforcement activities, and it is being replaced by federal statutes. Kerr notes these developments and argues that courts should place a thumb on the scale in favor of judicial caution when technology is in flux, and should consider allowing legislatures to provide the primary rules governing law enforcement investigations involving new technologies. Kerr's key contentions are that (1) legislatures create rules …

Uncitral Considers Electronic Reverse Auctions, As Comparative Public Procurement Comes Of Age In The U.S., Christopher R. Yukins, Don Wallace Jr.

GW Law Faculty Publications & Other Works

This article reports on the United Nations Commission on International Trade Law (UNCITRAL) review of electronic reverse auctions in procurement systems around the world. The article describes the U.S. experience, including the stalled regulatory initiative regarding reverse auctions. Drawing on the literature and on UNCITRAL studies from procurement systems in Asia, Europe and Latin America, the article cites lessons from other nations' use of reverse auctions. In particular, the article discusses the European Union's new rule on reverse auctions, which is probably the best example, worldwide, of a careful attempt to regulate reverse auctions. The article discusses traditional questions in …

Legal Scholarship Symposium: The Scholarship Of Lawrence M. Friedman, Robert J. Cottrol

GW Law Faculty Publications & Other Works

Lawrence M. Friedman has achieved a singular preeminence as a legal historian for articulating a new vision of legal history as a discipline in his 1973 work entitled A History of American Law. This book treats American law as a mirror of society. At the time, Friedman's vision was still something quite new in American legal historiography. James Willard Hurst's notions of legal history as a sociolegal inquiry would heavily influence Friedman, helping to move the field into new and often surprising precincts. Friedman's approach to legal history is one that introduced us to previously unexamined actors and institutions. Whether …

Government For Hire: Privatizing Foreign Affairs And The Problem Of Accountability Under International Law, Laura T. Dickinson

GW Law Faculty Publications & Other Works

Although the privatization of governmental functions has long since become a fixture of the American political landscape and has engendered a rich scholarly debate among domestic administrative law scholars, far less attention has been paid to the simultaneous privatization of what might be called the foreign affairs functions of government. Yet privatization is as significant in the international realm as it is domestically. The United States and other countries now regularly rely on private parties to provide all forms of foreign aid, to perform once sacrosanct diplomatic tasks such as peace negotiations, and even to undertake a wide variety of …

Reforming The Administrative Procedure Act: Democracy Index Rulemaking, David Fontana

GW Law Faculty Publications & Other Works

This Essay argues that the current regime of administrative law should be changed by creating legal incentives for agencies to involve the public in the rulemaking process via "democracy index rulemaking." Democracy index rulemaking would create a clear incentive for agencies to involve the public by requiring that the more participation that occurred during the rulemaking process, the more deference that such an agency rule would receive in court. An agency could receive this deference by using normal notice and comment procedures and receiving a large number of relevant and non-repetitive comments on a proposed rule, with the precise amount …

The Current Generation Of Constitutional Law, David Fontana

GW Law Faculty Publications & Other Works

In this piece reviewing Mark Tushnet's "The New Constitutional Order," David Fontana argues that Tushnet's admirably comprehensive book faces some of the same problems that many other pieces of popular constitutionalism scholarship do: He discusses the Constitution outside of the courts without examining the actual behavior of the Constitution outside of the courts. As it turns out, Tushnet is mostly right that there has not been a major constitutional revolution in the past generation. Still, by understudying the behavior of institutions besides courts, the book does not focus enough on the extent to which the entire political dynamic has moved …

'Murder And The Reasonable Man' Revisited: A Response To Victoria Nourse, Cynthia Lee

GW Law Faculty Publications & Other Works

As King Solomon understood, custody disputes ordinarily allow no easy answers. Increasingly, legal actors have begun to rely on the child's custodial preference as a proxy for her best interests. In an effort to ascertain this preference without subjecting the child to the trauma of courtroom testimony, many states authorize courts to interview children in camera. Good intentions notwithstanding, these custody interviews pose considerable risk to children, to their parents, and to the State's best-interests quest.

These risks increase dramatically when in-camera interviews serve as tools for searching out preferences that have not been publicly volunteered; when children's preferences are …

The New York Bar And Reform Of The Elected Judiciary After The Civil War, Renée Lettow Lerner

GW Law Faculty Publications & Other Works

This paper deals with the history of America's other peculiar institution: the elected judiciary. Elected judges are found virtually nowhere else in the world, but in America they are a fact of life in the considerable majority of states. The history of the elected judiciary is surprisingly little explored. This paper examines the post-Civil War trend away from Jacksonian populism and toward a more aristocratic view of the judiciary as a body set apart from the people. After the Civil War, many states, including New York, lengthened terms of office for their elected judges; some states even switched back to …

Liberty Takings: A Framework For Compensating Pretrial Detainees, Jeffrey Manns

GW Law Faculty Publications & Other Works

This Article shows how the application of a takings paradigm to pretrial detention can mitigate the distorted incentives which shape bail hearings and plea bargaining. The case for compensating pretrial detainees poses challenges because the existence of probable cause of having committed a criminal offense combined with the presence of other risk factors formally legitimizes bail hearing decisions. However, this Article analogizes the taking of people to the taking of property to argue that pretrial detention constitutes a liberty taking which inflicts punishment on unconvicted defendants and creates incentives for false pleas and other perversions of justice. While society faces …

Educating Lawyers For The Future Legal Profession, Thomas D. Morgan

GW Law Faculty Publications & Other Works

What today's law students do as lawyers will be profoundly affected by changes their clients experience. Clients are likely to face more global competition than earlier generations could imagine, and they are likely to value lawyers who understand the non-legal aspects of their problems. Tomorrow's lawyers are likely to have to be more specialized than their predecessors, and many will deliver services that are less personal, more commodity-like, and less financially rewarding. Legal education, in turn, faces challenges producing lawyers capable of functioning in that world. Future lawyers will have to be simultaneously more specialized and more capable of responding …

Realizing The Promise Of Restructuring The Electricity Market, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

In this contribution to a symposium on restructuring the U.S. electricity market, I summarize the peaks and valleys that have characterized the restructuring process over the past two decades. I begin by describing the reasons why I joined with a group of other academics twenty years ago in an effort to restructure the U.S electricity market. The market was characterized by large, well-documented structural and operational maladies; it had performed poorly for over a decade; its basic characteristics were consistent with increased reliance on market forces as an effective governance mechanism; and, our recent success in restructuring analogous markets provided …

Mergers In The Electric Power Industry, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

In this draft chapter, Professor Pierce provides an overview of the ongoing process through which the Federal Energy Regulatory Commission (FERC) has been attempting to restructure the U.S. electricity industry to create effectively competitive wholesale electricity markets for almost two decades and of the merger policies FERC has adopted and applied during that period. Pierce gives FERC high marks for adopting as its own the DOJ/FTC merger guidelines and then attempting to apply those guidelines to the unique characteristics of the evolving competitive electricity markets FERC has been attempting to create. He identifies three difficult systemic questions FERC has encountered …