Law Commons^™

The Expulsion Of Aliens And Other Topics: The Sixty-Fourth Session Of The International Law Commission, Sean D. Murphy

GW Law Faculty Publications & Other Works

This essay analyzes the work of the International Law Commission during its sixty-fourth session in Geneva from May 7 to June 1, and from July 2 to August 3, 2012. The session marked the first year of a new quinquennium (2012-2016), with the Commission having completed its work during the prior quinquennium on four major topics: transboundary aquifers; reservations to treaties; responsibility of international organizations; and effects of armed conflict on treaties. The central topic under discussion during the sixty-fourth session concerned the expulsion of aliens, which led to the adoption on first reading of thirty-two articles, together with commentaries, …

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 'Federal Law Of Marriage': Deference, Deviation, And Doma, W. Burlette Carter

GW Law Faculty Publications & Other Works

The article discusses the history of federal inroads into marriage by examining federal interventions during the nineteenth and early twentieth century, argues that, in some cases but not all, marriages' federal benefits are indeed intended to support natural procreation, argues that DOMA's underlying statutes are key to ascertaining the purposes of federal marriage benefits and burdens, distinguishes sexual orientation discrimination from race discrimination and offers a proposal for dealing with equal protection challenges to denials of marriage rights to same sex couples. The proposal, which depends upon dual standards of review, recognizes the historical denial of family rights to same …

The Relevance Of Subsequent Agreement And Subsequent Practice For The Interpretation Of Treaties, Sean D. Murphy

GW Law Faculty Publications & Other Works

In May 2012, the International Law Commission (ILC) appointed a special rapporteur, Georg Nolte, to complete a project on “subsequent agreements and subsequent practice in relation to the interpretation of treaties.” Previously referred to by the name “treaties over time,” the project is expected to result by 2016 in a series of “observations” or “conclusions” about how the meaning of a treaty might be determined based, at least in part, on the conduct of the States Parties after the treaty is concluded.

The project raises a large number of interesting issues, some of which concern terminology and line drawing, others …

Book Review Of The Max Planck Encyclopedia Of Public International Law (Rüdiger Wolfrum, Ed., Oxford University Press, 2012), Sean D. Murphy

GW Law Faculty Publications & Other Works

In 2004, the Max Planck Institute launched yet another generation of its widely-used encyclopedia on public international law, this time entitled the Max Planck Encyclopedia of Public International Law (MPEPIL), under the direction of Rüdiger Wolfrum. As befits a new century, the MPEPIL was first unveiled in an online version in 2008, followed in 2012 by a print version in ten volumes plus an index volume. Even a cursory comparison with the previous version reveals that this compendium is a whole new ball game. In terms of content, only 12 of the prior edition’s articles were taken verbatim into the …

The Congressional War On Contractors, Jessica Tillipman

GW Law Faculty Publications & Other Works

The U.S. Suspension & Debarment regime is designed to ensure that the federal government does business only with “responsible” partners. One of the most fundamentally (and frequently) misunderstood aspects of the FAR 9.4 suspension & debarment system is that these tools are only to be used for the purpose of protecting the Government, not to punish contractors for their past misconduct. Unfortunately, recent congressional initiatives demonstrate many legislators’ desire to transform debarment into a tool of punishment by banishing contractors from the procurement system “with little consideration of whether such action is needed or fair."

Instead of focusing on the …

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: …

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 …

Grades Matter; Legal Writing Grades Matter Most, Jessica L. Clark

GW Law Faculty Publications & Other Works

In this study of 380 students in a law school’s 2011 graduating class, the data demonstrates a strong correlation between high performance in legal writing courses and high performance in non-legal writing courses. There is also a strong correlation at the opposite end: low performers in legal writing courses are low performers in non-legal writing courses. This article provides the hard data to support the significance of writing skills by demonstrating the correlation between performance in legal writing courses and performance in other law school courses by comparing grades and Grade Point Averages (GPAs). Of course grades and GPA data …

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.

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 …

Affirmative Action, Robert J. Cottrol, Megan Davis

GW Law Faculty Publications & Other Works

Affirmative action refers to a range of governmental policies designed to foster greater opportunities for racial and ethnic groups that have a traditionally been victims of discrimination. These policies are also frequently extended to women and to individuals who have suffered from socio-economic disadvantage. Affirmative action has generally been less controversial when based on class or gender instead of race. Affirmative action policies have taken the form of quotes for members of previously disadvantaged groups, preferential weighting of applicants for employment and university admissions and governmental pressure to increase recruitment of members of groups that have long suffered from discrimination. …

Bargaining In The Shadow Of The Debt Ceiling: When Negotiating Over Spending And Tax Laws, Congress And The President Should Consider The Debt Ceiling A Dead Letter, Neil H. Buchanan, Michael C. Dorf

GW Law Faculty Publications & Other Works

If the debt ceiling is inconsistent with existing spending and taxing laws, what must the President do? In earlier work, we argued that when Congress creates a “trilemma” — making it impossible for the President to spend as much as Congress has ordered, to tax only as much as Congress has ordered, and to borrow no more than Congress has permitted — the Constitution requires the President to choose the least unconstitutional path. In particular, he must honor Congress’s decisions and priorities regarding spending and taxing, and he must issue enough debt to do so. Here, we extend the analysis …