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China's Legal System And The Wto: Prospects For Compliance, Donald C. Clarke Jan 2003

China's Legal System And The Wto: Prospects For Compliance, Donald C. Clarke

GW Law Faculty Publications & Other Works

The impact of WTO membership both on China and its trading partners, both for good and for ill, has been greatly overstated. WTO treaty obligations and Dispute Settlement Body rulings will not become part of Chinese domestic unless specifically incorporated by Chinese legislation. Moreover, the WTO does not require a perfect legal system of its members; instead, it requires a degree of transparency and fairness in certain limited areas. Although some of China's WTO commitments will be difficult for it to fulfill, even non-fulfillment will not result in the predicted flood of WTO dispute settlement proceedings, since such proceedings ...


Corporate Governance In China: An Overview, Donald C. Clarke Jan 2003

Corporate Governance In China: An Overview, Donald C. Clarke

GW Law Faculty Publications & Other Works

Corporate governance (gongsi zhili) is a concept whose time seems definitely to have come in China. Chinese definitions of corporate governance in the abstract tend to cover the system regulating relationships among all parties with interests in a business organization, usually spelling out shareholders as a particularly important group (e.g., Liu, 1999; Yin, 1999). But Chinese corporate governance discourse in practice focuses almost exclusively on agency problems and within only two types of firms: state-owned enterprises (SOEs), particularly after their transformation into one of the corporate forms provided for under the Company Law,1 and listed companies, which must ...


Economic Development And The Rights Hypothesis: The China Problem, Donald C. Clarke Jan 2003

Economic Development And The Rights Hypothesis: The China Problem, Donald C. Clarke

GW Law Faculty Publications & Other Works

An important school of thought in institutional economics (the "Rights Hypothesis") holds that economic growth requires a legal order offering stable and predictable rights of property and contract because the absence of such rights discourages investment and specialization. Without the security of expectations offered by such a legal order, according to the Rights Hypothesis, the risks of a great number of otherwise beneficial transactions far outweigh their expected return, and as a result such transactions simply do not occur. Society is mired in an economy of short-term deals between actors bound by non-legal ties such as family solidarity which by ...


Puzzling Observations In Chinese Law: When Is A Riddle Just A Mistake?, Donald C. Clarke Jan 2003

Puzzling Observations In Chinese Law: When Is A Riddle Just A Mistake?, Donald C. Clarke

GW Law Faculty Publications & Other Works

Understanding the Chinese legal system is not simple because it is (probably) very different from a Western one. The understanding of the Chinese legal system that results from any study will depend crucially on the selection of a paradigm with which to define what counts as an observation and against which to measure and assess the observations, either descriptively or normatively. This is not to say that the selection of a paradigm will make the difference between understanding and not understanding. It will, however, make a difference between understanding in one way and understanding in another way. Whether one of ...


Including Law In The Mix: The Role Of Law, Lawyers, And Legal Training In Child Advocacy, Catherine J. Ross Jan 2003

Including Law In The Mix: The Role Of Law, Lawyers, And Legal Training In Child Advocacy, Catherine J. Ross

GW Law Faculty Publications & Other Works

This chapter describes the recent trends in family law scholarship, training, and practice. The first section of this chapter provides an overview of the scope of modern family law and the range of skills brought by lawyers. The second section considers the legal profession’s interest in using its collective talents to improve children’s lives in context of the broader intellectual trends in thinking about family issues. In the third section, I describe the current goals of legal education, explain why law schools should offer interdisciplinary training to students who plan to work in family law, and discuss some ...


States As Nations: Dignity In Cross-Doctrinal Perspective, Peter J. Smith Jan 2003

States As Nations: Dignity In Cross-Doctrinal Perspective, Peter J. Smith

GW Law Faculty Publications & Other Works

In a series of recent decisions, the Supreme Court has asserted that the states' sovereign immunity from suit serves principally to protect the "dignity" of the states. This seemingly oxymoronic notion has perplexed and amused commentators, who have tended to dismiss it largely as rhetorical flourish without substantive content. Although the concept of state dignity is at best an unusual anchor for a doctrine that already has been roundly criticized as unfaithful to constitutional history, text, and structure, the notion of state dignity is not foreign to the law. This article argues that in relying on state dignity, the Court ...


Barriers To Reliable Credibility Assessments: Domestic Violence Victim-Witnesses, Laurie S. Kohn Jan 2003

Barriers To Reliable Credibility Assessments: Domestic Violence Victim-Witnesses, Laurie S. Kohn

GW Law Faculty Publications & Other Works

This Article examines the challenges for victims of domestic violence appearing in court when the victim presents differently than the paradigmatic domestic violence victim. In particular, this Article analyzes the strategic dilemma of presenting a victim who refuses to admit (or cannot access or does not experience) fear of the batterer, and the victim who feels anger towards her assailant.

This Article addresses possible policy and tactical responses to this challenge. Suggesting legislative changes that eliminate requirements that victims prove subjective fear of a battering partner, the Article further analyzes the use of expert witnesses to assist jurors and judges ...


Caught In The Crossfire: A Defense Of The Cultural Theory Of Gun-Risk Perceptions, Donald Braman, Dan M. Kahan Jan 2003

Caught In The Crossfire: A Defense Of The Cultural Theory Of Gun-Risk Perceptions, Donald Braman, Dan M. Kahan

GW Law Faculty Publications & Other Works

In this article, Dan Kahan and Donald Braman expand upon the cultural theory of gun-risk perception and respond to the commentaries on their previous article, More Statistics, Less Persuasion: A Cultural Theory of Gun-Risk Perceptions, 151 U. Pa. L. Rev. 1291 (2003). Their critics argue that the authors are too quick to dismiss the power of empirical information to influence individuals’ positions on gun control. But in analyzing the variety of their critics’ arguments, Kahan and Braman note the strange pattern of opinions that has emerged on the relative importance of culture and data in the gun debate. What could ...


The Breakdown Of The United States Government Purchase Card Program And Proposals For Reform, Jessica Tillipman Jan 2003

The Breakdown Of The United States Government Purchase Card Program And Proposals For Reform, Jessica Tillipman

GW Law Faculty Publications & Other Works

The Government Purchase Card Program introduced purchase cards to streamline the acquisition of items and services under $2,500. Purchase cards have proved to be extremely efficient, with some estimates putting the savings for the Government at $75 per transaction. Unfortunately, the Government has failed to maintain effective controls over cardholders and this has led to systemic abuse, preventing the Government from realizing the full potential of the purchase card program.

There are three main problems with the current scheme. First, cardholders are ignoring internal controls, resulting in purchases that supervisors cannot verify as consistent with procurement regulations. Second, the ...


Commercial Purchasing: The Chasm Between The United States Government's Evolving Policy And Practice, Steven L. Schooner Jan 2003

Commercial Purchasing: The Chasm Between The United States Government's Evolving Policy And Practice, Steven L. Schooner

GW Law Faculty Publications & Other Works

During the 1990's, the United States government accelerated its efforts to adopt more commercial practices and buy more commercial items. In doing so, the government sought to: (1) mimic the most successful buying practices of businesses and consumers and (2) rely more heavily upon existing goods and services already produced in the marketplace (rather than demanding creation of government-unique versions). This paper introduces the government's efforts to make its purchasing regime more commercial through the introduction of new policies, vocabulary, purchasing authorities, and practices. The paper unveils a host of impediments that restrain the government from evolving into ...


Murder And The Reasonable Man: Passion And Fear In The Criminal Courtroom, Cynthia Lee Jan 2003

Murder And The Reasonable Man: Passion And Fear In The Criminal Courtroom, Cynthia Lee

GW Law Faculty Publications & Other Works

This book examines the influence of masculinity, heterosexuality, and race norms on the reasonableness requirement in two criminal law defenses: the doctrine of provocation and the defense of self-defense. I argue that certain defendants are better able than others to bolster their claims of reasonableness by relying on dominant social norms and illustrate this point by examining three types of cases: (1) female infidelity killings, (2) gay panic killings, and (3) racialized self-defense cases (both private claims of self-defense and police use of deadly force against persons of color). Even though these three types of cases may seem completely unconnected ...


The Parent-Child Privilege In Context, Catherine J. Ross Jan 2003

The Parent-Child Privilege In Context, Catherine J. Ross

GW Law Faculty Publications & Other Works

The article argues that children cannot fully exercise their constitutional rights under the Fifth and Sixth Amendments without being able to confide freely in their parents and advocates for the creation of a parent-child privilege.


Implementing Constitutional Rights For Juveniles: The Parent-Child Privilege In Context, Catherine J. Ross Jan 2003

Implementing Constitutional Rights For Juveniles: The Parent-Child Privilege In Context, Catherine J. Ross

GW Law Faculty Publications & Other Works

This article advocates for the creation of a parent-child privilege by focusing on the parental contribution to raising their children. The article argues that children cannot fully exercise their constitutional rights without being able to confide freely in their parents and consult them before waiving rights and while working with their attorneys. I begin by describing the current state of privilege law and suggest that there is already a “de facto” tendency to observe a parent-child privilege. I show that courts have failed to distinguish among three distinctive kinds of confidences: (1) testimony concerning confidences from a minor child to ...


More Statistics, Less Persuasion: A Cultural Theory Of Gun-Risk Perceptions, Donald Braman, Dan M. Kahan Jan 2003

More Statistics, Less Persuasion: A Cultural Theory Of Gun-Risk Perceptions, Donald Braman, Dan M. Kahan

GW Law Faculty Publications & Other Works

What motivates individuals to support or oppose the legal regulation of guns? What sorts of evidence or arguments are likely to promote a resolution of the gun control debate? Using the survey methods associated with the cultural theory of risk, we demonstrate that individuals' positions on gun control derive from their cultural world views: individuals of an egalitarian or solidaristic orientation tend to support gun control, those of a hierarchical or individualist orientation to oppose it. Indeed, cultural orientations so defined are stronger predictors of individuals' positions than is any other fact about them, including whether they are male or ...


Three Generations Of Participation Rights Before The European Commission, Francesca Bignami Jan 2003

Three Generations Of Participation Rights Before The European Commission, Francesca Bignami

GW Law Faculty Publications & Other Works

This article offers a conceptual framework for analyzing the development of participation rights before the executive branch of the European Community - the European Commission. Process rights before the Commission can be divided into three categories, each of which is associated with a distinct phase in Community history and a particular set of institutional actors. The first set of rights, the right to be heard when the Commission inflicts sanctions or other forms of hardship in individual proceedings, emerged in the 1970s in competition law. This phase was driven by the Court f Justice, influenced by the English administrative law doctrine ...


Elusive Foundation: John Marshall, James Wilson, And The Problem Of Reconciling Popular Sovereignty And Natural Law Jurisprudence In The New Federal Republic, Arthur E. Wilmarth Jr. Jan 2003

Elusive Foundation: John Marshall, James Wilson, And The Problem Of Reconciling Popular Sovereignty And Natural Law Jurisprudence In The New Federal Republic, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

Chief Justice John Marshall's opinion in Marbury v. Madison is generally regarded as the cornerstone of American judicial review. Marshall's opinion in Marbury skillfully invoked the distinctive American concept of popular sovereignty and linked that concept to the written Constitution. Marshall argued that judicial review provided the best means for enforcing the people's will, as declared in the written Constitution, without resort to the drastic remedy of revolution. Marshall warned that, without judicial review, the legislative branch would enjoy a practical and real omnipotence and would reduce to nothing what we have deemed the greatest improvement on ...


The Judicial Disabling Of The Employment Discrimination Provisions Of The Americans With Disabilities Act, Charles B. Craver Jan 2003

The Judicial Disabling Of The Employment Discrimination Provisions Of The Americans With Disabilities Act, Charles B. Craver

GW Law Faculty Publications & Other Works

This article explores a series of Supreme Court decisions making it more difficult for disabled individuals to assert rights under the employment discrimination provisions of the Americans with Disabilities Act. The Court first held that ADA claimants must have their disabilities considered in their corrected or medicated condition. So long as they are able to use prostheses, hearing aids, medication, or other means to control their conditions, they are not to be considered disabled. The Court further held that persons will only be considered disabled if they have conditions that severely limit them with respect to a major life activity ...


The Negotiation Process, Charles B. Craver Jan 2003

The Negotiation Process, Charles B. Craver

GW Law Faculty Publications & Other Works

This article explores the six formal stages of the negotiation process to demonstrate to readers how structured bargaining encounters are. During the Preparation Stage, negotiators have to acquire critical information and determine: (1) their bottom lines; (2) their goals; and (3) their opening offers. During the Preliminary Stage, they should work to establish rapport with opponents and to create positive negotiating environments that will be more conducive to cooperative bargaining. During the Information Stage, negotiators must ask open-ended questions designed to discover what items are available for division - value creation. During the Distributive Stage, the participants vie for the items ...


The Waning Importance Of Revisions To U.C.C. Article 2, Gregory E. Maggs Jan 2003

The Waning Importance Of Revisions To U.C.C. Article 2, Gregory E. Maggs

GW Law Faculty Publications & Other Works

Article 2 of the Uniform Commercial Code governs contracts for the sale of goods. This article seeks to show that, however urgent the need to modernize Article 2 was in 1990, this need ironically has waned with the passage of time. Article 2 requires less change now than it did a decade ago to meet the requirements of modern commerce. The article supports this claim by looking at three very significant developments that have occurred since 1990: the growth of electronic commerce, the decision not to address software licenses in article 2, and the accumulation of a decade of precedents ...


Can Pragmatism Be Radical? Richard Posner And Legal Pragmatism, Daniel J. Solove, Michael Sullivan Jan 2003

Can Pragmatism Be Radical? Richard Posner And Legal Pragmatism, Daniel J. Solove, Michael Sullivan

GW Law Faculty Publications & Other Works

Richard Posner's Law, Pragmatism, and Democracy (2003) is the most comprehensive account to date of his pragmatic vision of the law and democracy. For the most part, Posner's theory of pragmatism has been attacked externally, mainly by theorists unsympathetic to pragmatism. In contrast, in this Review, we contest Posner's account of pragmatism from within the pragmatic tradition. We contend that Posner's views are problematic not because they are pragmatic, but because they are often not pragmatic enough.

We put Posner's account of pragmatism to the pragmatic test by examining its implications. Posner views ideals as ...


Unsigning, Edward T. Swaine Jan 2003

Unsigning, Edward T. Swaine

GW Law Faculty Publications & Other Works

Widespread objections to the apparently unprecedented decision by the United States to "unsign" the treaty establishing the International Criminal Court reflect concerns particular to that treaty and to U.S. involvement in international affairs. But the controversy also illuminates a genuine problem in the formation of multilateral treaties. The interim obligation for signatories, often understood as a means for maintaining a vestigial role for signature, should also be considered as an incomplete answer to ex post and ex ante commitment problems observable in the treaty context and elsewhere - incomplete, in part, because signatories can effectively withdraw from their obligations without ...


Against Principled Antitrust, Edward T. Swaine Jan 2003

Against Principled Antitrust, Edward T. Swaine

GW Law Faculty Publications & Other Works

Competition policy is on the WTO agenda for the Doha Round, but it is unlikely that it will result in any substantive international standards; the goal, instead, seems to be to agree on core principles to guide the development of national law, including transparency, non-discrimination, and procedural fairness, perhaps extending to special and differential treatment for developing countries. While there is much to commend these principles, this paper takes a deliberately contrarian view, arguing that core principles are not at all where WTO competition policy should begin. It further disputes the appropriateness of applying an emerging meta-principle of the WTO ...


Zelman's Future: Vouchers, Sectarian Providers, And The Next Round Of Constitutional Battles, Ira C. Lupu, Robert W. Tuttle Jan 2003

Zelman's Future: Vouchers, Sectarian Providers, And The Next Round Of Constitutional Battles, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

This piece focuses on the Supreme Court's recent decision in Zelman v. Simmons-Harris, the Cleveland school voucher case, and the constitutional questions that have already begun to appear in its aftermath. After describing the constitutional crossroads at which the Zelman Court found itself, we offer a close reading of the Zelman opinions, paying special attention to the normative vision of church-state relations that each presupposes, the values that the Court failed to explore, and practical questions about the range of school settings to which Zelman might ultimately be applied. The piece then explores the legal and constitutional future of ...


Does Financial Liberalization Increase The Likelihood Of A Systemic Banking Crisis? Evidence From The Past Three Decades And The Great Depression, Arthur E. Wilmarth Jr. Jan 2003

Does Financial Liberalization Increase The Likelihood Of A Systemic Banking Crisis? Evidence From The Past Three Decades And The Great Depression, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

Over the past three decades, leading industrial nations and many developing countries have deregulated their financial markets. Financial liberalization has produced major benefits, including more efficient intermediation of financial resources, more rapid economic development and faster growth in trade. At the same time, however, many banking crises have occurred in countries that previously adopted programs of financial deregulation. This essay provides a brief overview of banking crises in international markets since 1973, together with more detailed discussions of Japan's financial crisis that began in 1990, the U.S. banking crises of 1929-33 and 1980-92, and the challenges confronting major ...


The Price Of Discrimination: The Nature Of Class Action Employment Litigation And Its Effects, Michael Selmi Jan 2003

The Price Of Discrimination: The Nature Of Class Action Employment Litigation And Its Effects, Michael Selmi

GW Law Faculty Publications & Other Works

This article analyzes the recent wave of large class action employment discrimination suits to determine their effects on the firms that are sued and the members of the plaintiff class. The first part of the paper includes an event study that measures the effect the lawsuits and their settlements have on stock prices of the companies that are sued, and the second part of the paper involves three case studies (Texaco, Home Depot and Denny's) to explore how the lawsuits actually change corporate practices. The study finds that the lawsuits do not generally affect stock prices, and rarely provide ...


Identity Theft, Privacy, And The Architecture Of Vulnerability, Daniel J. Solove Jan 2003

Identity Theft, Privacy, And The Architecture Of Vulnerability, Daniel J. Solove

GW Law Faculty Publications & Other Works

This Article contrasts two models for understanding and protecting against privacy violations. Traditionally, privacy violations have been understood as invasive actions by particular wrongdoers who cause direct injury to victims. Victims experience embarrassment, mental distress, or harm to their reputations. Privacy is not infringed until these mental injuries materialize. Thus, the law responds when a person's deepest secrets are exposed, reputation is tarnished, or home is invaded. Under the traditional view, privacy is an individual right, remedied at the initiative of the individual.

In this Article, Professor Solove contends the traditional model does not adequately account for many of ...


The Origins And Growth Of Information Privacy Law, Daniel J. Solove Jan 2003

The Origins And Growth Of Information Privacy Law, Daniel J. Solove

GW Law Faculty Publications & Other Works

In recent years, information privacy has emerged as one of the central issues of our times. Today, we have hundreds of laws pertaining to privacy - the common law torts, criminal law, evidentiary privileges, constitutional law, at least twenty federal statutes, and numerous statutes in each of the fifty states. To understand the law of information privacy more completely, it is necessary to look to its origins and growth. This article provides a brief overview of the history of the development of information privacy law. In particular, it explores the way that the law has emerged in response to changes in ...


The Virtues Of Knowing Less: Justifying Privacy Protections Against Disclosure, Daniel J. Solove Jan 2003

The Virtues Of Knowing Less: Justifying Privacy Protections Against Disclosure, Daniel J. Solove

GW Law Faculty Publications & Other Works

This Article develops justifications for protections against the disclosure of private information. An extensive body of scholarship has attacked such protections as anathema to the Information Age, where the free flow of information is championed as a fundamental value. This Article responds to two general critiques of disclosure protections: (1) that they inhibit freedom of speech, and (2) that they restrict information useful for judging others.

Regarding the free speech critique, the Article argues that not all speech is of equal value; speech of private concern is less valuable than speech of public concern. The difficulty, however, is distinguishing between ...


Beyond The Multiple Punishment Problem: Punitive Damages As Punishment For Individual, Private Wrongs, Thomas Colby Jan 2003

Beyond The Multiple Punishment Problem: Punitive Damages As Punishment For Individual, Private Wrongs, Thomas Colby

GW Law Faculty Publications & Other Works

The practice of using punitive damages to punish a tort defendant, in a single case brought by a single one of many victims, for the full scope of societal harm caused by its entire course of wrongful conduct has become increasingly common in modern tort cases. This practice presents the troubling possibility that more than one victim will recover punitive damages awards that were each designed to punish the defendant fully for the same course of wrongful conduct, resulting in unjustly severe cumulative punishment. Many courts and commentators have responded to this "multiple punishment" problem with complex and far-reaching proposals ...


The Impact Of Economic Globalization On Compliance, Dinah L. Shelton Jan 2003

The Impact Of Economic Globalization On Compliance, Dinah L. Shelton

GW Law Faculty Publications & Other Works

The introductory chapter of this book begins by defining globalization and the novel notion of the “common concern of humanity” and describes the ethical, cultural, and economic considerations underlying protection of the biosphere. The chapter describes the evolution of the common concern of humanity in depth and describes the increased presence of international organizations. Next, the chapter introduces the Marrakesh Charter and its corresponding economic principles. The chapter concludes that there exists the need to create an international liability system for both states and individuals for environmental degradation caused by international trade.