Law Commons^™

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 has …

Watching The Sunset: Anticipating Gao's Study Of Concurrent Bid Protest Jurisdiction In The Cofc And The District Courts, Steven L. Schooner

GW Law Faculty Publications & Other Works

The 1970 D.C. Circuit ruling in Scanwell Labs. v. Shaffer, 424 F.2d 859, turned the issue of federal court jurisdiction over bid protest litigation into a legal experiment. Thirty years later, the putative sunset of statutory District Court jurisdiction, and a Congressional mandate that GAO undertake a comprehensive study of the need for concurrent jurisdiction, offered an opportunity to judge the success of this experiment. This brief paper reviews the history leading up to the GAO study; discusses how the protest regime helps ensure procurement integrity; critiques the scope and methodology of study; and, ultimately, argues that elimination of District …

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 …

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 the Court's …

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 decisions. …

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.

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 then …

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 that …

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 …

Davis V. Monroe County Board Of Education: The Unresolved Questions,, Joan E. Schaffner

GW Law Faculty Publications & Other Works

This article focuses on the recent trend of permitting liability of schools when students are sexually harassed, which the Supreme Court has only recognized for twenty years. I examine the majority and dissenting opinions of the Court’s most recent decision about this topic, Davis v. Monroe County Board of Education and analyze three questions brought to light by Davis and Gebser v. Lago Vista Independent School District. These questions are: (1) what qualifies as “actionable” sexual harassment, (2) who must receive notice, and (3) what satisfies the “deliberate indifference” standard from Davis. The answers to these questions are just …

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 avoiding patents and …

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 …

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' exaggerated responses …

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 article raises …

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 from …

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 asserted the …

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’s substantive …

Toward A Prudential And Credibility-Centered Parol Evidence Rule, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

The most influential judicial voices on the parol evidence rule are Roger Traynor and Richard Posner. Traynor pieced together aspects of positions championed by the antipodal titans of contracts, Arthur Corbin and Samuel Williston. Posner cuts through tangled doctrinal webs to show how the unifying talisman of the doctrine is credibility. Everything in parol evidence rule doctrine, in this formulation, can be understood in terms of two categories of evidence: subjective and objective. While the Traynor composite blended aspects of the titans of contracts into an incoherent stew, the Posner composite unites the central theme of the titans' positions, holding …

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 …

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 …

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 on statutory …

Policing Women: Moral Arguments And The Dilemmas Of Criminalization., Naomi R. Cahn

GW Law Faculty Publications & Other Works

This essay concerns the peculiar dilemmas of criminalization for women. I explain the ways in which women are policed, ranging from the monitoring of motherhood to the criminalization of prostitution. This policing may be through the criminal law, civil law, or more subtly, through cultural attitudes that devalue women's work yet simultaneously encourage women to do that work. Hence, I argue that in order to sensitize, reform, and change the criminal justice system, it is critical to consider women's needs.

This essay also pays special attention to the impact of the criminal justice system on children. Specifically, I examine the …

The Power Of Caretaking, Naomi R. Cahn

GW Law Faculty Publications & Other Works

In this Article, I explore how the roles of women at home are related to their roles at work. By explaining the dynamics of household changes, this Article provides an additional understanding of the need for women's home and workplace equality. I argue that the power that women have gained from their role as a caretaker within the home is a double-edged sword: acting as the primary caretaker, while extremely rewarding, is simultaneously a “confining” position. Until both men and women see themselves as nurturers and workers, neither the workplace nor the family will undergo fundamental change.

This Article examines …

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 …

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 children by …

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 from …

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 …

Commitment And Compliance: The Role Of Non-Binding Norms In The International Legal System (Introduction), Dinah L. Shelton

GW Law Faculty Publications & Other Works

The introductory chapter of this book describes a study undertaken to determine the extent to which states comply with non-binding legal principles as compared to rules of law and focused on environmental soft law. The leaders of the study provided four factors they predicted would have an effect on compliance with soft law: institutional setting, regional diversity, the type of obligation, and generality and specificity. The chapter next describes the international legal system and its recent expansion, then describes a variety of methods for resolving international issues. Next, the chapter notes a few possible reasons why states prefer to undertake …

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" …

Collecting Child Support: A History Of Federal And State Initiatives, Naomi R. Cahn, Jane C. Murphy

GW Law Faculty Publications & Other Works

In this article we sketch an overview of the increasing federal involvement in the child-support area. Because the federal role has grown so dramatically over the past 25 years, family law practitioners need to understand the different federal programs and requirements that affect state management of child-support programs. While for many low-income parents state agencies handle child-support establishment and collection, the federalization of child support has practical implications when it comes to both establishing and enforcing child support. For example, as the time limits of the Personal Responsibility and Work Opportunity Reconciliation Act begin to have their effects, child support …