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Was The Disparate Impact Theory A Mistake?, Michael Selmi Jan 2006

Was The Disparate Impact Theory A Mistake?, Michael Selmi

GW Law Faculty Publications & Other Works

The disparate impact theory has long been viewed as one of the most important and controversial developments in antidiscrimination law. In this article, Professor Selmi assesses the theory's legacy and challenges much of the conventional wisdom. Professor Selmi initially charts the development of the theory, including a close look at Griggs v. Duke Power Co. and Washington v. Davis, to demonstrate that the theory arose to deal with specific instances of past discrimination rather than as a broad theory of equality. In the next section, Professor Selmi reviews the success of the theory in the courts through an empirical ...


Trial Tactics: Reverse Rule 404(B) Evidence: Parts I And Ii, Stephen A. Saltzburg Jan 2006

Trial Tactics: Reverse Rule 404(B) Evidence: Parts I And Ii, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

Defendants have the same right to offer Rule 404(b) evidence as prosecutors, and they are not required to give pretrial notice under the Federal Rules of Evidence. When defendants offer this evidence, they attempt to prove that someone else is guilty of the crime attributed to them. This often is referred to as reverse Rule 404(b) evidence. Some defense evidence will be admitted - indeed the Confrontation Clause or Compulsory Process Clause may require admission in some cases - but not all defense evidence will be admitted. The issue is where to draw the line between admissible and inadmissible evidence ...


Vicious Dog Laws Unconstitutional In Ohio, Joan Schaffner, Barbara J. Gislason Jan 2006

Vicious Dog Laws Unconstitutional In Ohio, Joan Schaffner, Barbara J. Gislason

GW Law Faculty Publications & Other Works

On March 3, 2006, an Ohio appeals court issued a landmark decision in City of Toledo v. Tellings, 2006 WL 513946 (Ohio App. 6 Dist), which may affect pit bulls and pit bull "look-a-likes" and their owners nationwide. Tellings was the owner of three pit bulls. The warden killed one of his pit bulls and criminally charged Tellings with two violations of the local Toledo ordinance limiting ownership to one vicious dog per household and two violations of the state statute requiring liability insurance with ownership of a vicious dog. The vicious dog laws on Ohio include pit bulls in ...


The Case Against Income Averaging, Neil H. Buchanan Jan 2006

The Case Against Income Averaging, Neil H. Buchanan

GW Law Faculty Publications & Other Works

Should tax liability be based on annual income or on the average of a taxpayer's income earned over the space of several years (or even a lifetime)? This article assesses proposals to replace the current method of computing taxes with a system that would allow taxpayers to smooth out their income tax liabilities by offsetting high-income years with low-income years. While the usual discussion of this issue revolves around supposed horizontal inequities, I show that it is not clear that the current system generates horizontal inequities at all; and even if it does, I suggest as a normative issue ...


The Independent Director In Chinese Corporate Governance, Donald C. Clarke Jan 2006

The Independent Director In Chinese Corporate Governance, Donald C. Clarke

GW Law Faculty Publications & Other Works

Corporate governance (gongsi zhili) is a concept whose time has come in China, and the institution of the independent director is a major part of this concept. Policymakers in several countries such as the United Kingdom and Japan have turned to independent directors as an important element of legal and policy reform in the field of corporate governance. In August 2001, the China Securities Regulatory Commission (CSRC) issued its Guidance Opinion on the Establishment of an Independent Director System in Listed Companies. Covering all companies listed on Chinese stock exchanges (but not Chinese companies listed overseas), it constitutes the most ...


Emerging Policy And Practice Issues (2005), Steven L. Schooner, Christopher R. Yukins Jan 2006

Emerging Policy And Practice Issues (2005), Steven L. Schooner, Christopher R. Yukins

GW Law Faculty Publications & Other Works

This paper, presented at the West Government Contracts Year in Review Conference (covering 2005), attempts to identify the key trends and issues for 2006 in U.S. federal procurement. In an effort to make sense of the current reforms, the paper focuses upon what seems to be the common imperative underlying the various initiatives: the need to bring order to a procurement function as it devolves away from the Government user - what some might call the "devolution" or "outsourcing" of the contracting function. The paper also addresses emerging issues including, among others, the death of competitive sourcing; the acquisition workforce ...


Overcoming The Fear Of Guns, The Fear Of Gun Control, And The Fear Of Cultural Politics: Constructing A Better Gun Debate, Donald Braman, Dan M. Kahan Jan 2006

Overcoming The Fear Of Guns, The Fear Of Gun Control, And The Fear Of Cultural Politics: Constructing A Better Gun Debate, Donald Braman, Dan M. Kahan

GW Law Faculty Publications & Other Works

The question of how strictly to regulate firearms has convulsed the national polity for the better part of four decades, and in this article Donald Braman and Dan M. Kahan conclude that the best way to engender productive debate is to investigate deeper than the statistics and address the competing American social attitudes on guns themselves: guns symbolizing honor, human mastery over nature, and individual self-sufficiency on the one hand, and guns creating the perpetuation of illicit social hierarchies, the elevation of force over reason, and the expression of collective indifference to the well-being of strangers on the other. Braman ...


Getting Back To Basics: Some Thoughts On Dignity, Materialism, And A Culture Of Racial Equality, Christopher A. Bracey Jan 2006

Getting Back To Basics: Some Thoughts On Dignity, Materialism, And A Culture Of Racial Equality, Christopher A. Bracey

GW Law Faculty Publications & Other Works

Dignity is the most compelling value in racial reform. Racial inequality is expressed as an ongoing attempt to deny minorities dignity. Dignity requires that to truly have freedom and equality, each of us has equal ability to exercise our fundamental freedoms. In order to ensure that this is possible, persons must possess the material wherewithal to exercise that freedom. The government, in order to combat racial inequality, must ensure that persons have the capability to live a “safe, well-nourished, productive, educated, social, and politically and culturally participatory life of normal length.” This approach requires structural changes in the obligations of ...


Foster Children Awaiting Adoption Under The Adoption And Safe Families Act Of 1997, Catherine J. Ross Jan 2006

Foster Children Awaiting Adoption Under The Adoption And Safe Families Act Of 1997, Catherine J. Ross

GW Law Faculty Publications & Other Works

This article discusses the Adoption and Safe Families Act of 1997 and how it relates to the rules created by constitutional law and federal legislation about shifting children between foster care and adoption. The article focuses on the 15/22 months rule, which provides that a state should pursue adoption for a child who has remained in foster care for fifteen of the preceding 22 months and encourages states to take action to implement the 15/22 months rule to comply with the Constitution and federal law, noting that many children in foster care will need pre-adoptive and adoptive homes.


Constitutional Obstacles To Regulating Violence In The Media, Catherine J. Ross Jan 2006

Constitutional Obstacles To Regulating Violence In The Media, Catherine J. Ross

GW Law Faculty Publications & Other Works

This chapter examines whether speech containing violent imagery that is made available to children can be subjected to government regulation that will survive constitutional scrutiny. The first section of this chapter reviews the general limits that the First Amendment places on the government’s power to regulate speech. The second section arguees that violent speech may not be regulated based on its content because “violence” is not one of the limited legal categories constituting “unprotected” speech, such as obscenity.

The third section examines the government’s burden to demonstrate that violent speech harms children before it can regulate such speech ...


Federalism, Instrumentalism, And The Legacy Of The Rehnquist Court, Peter J. Smith Jan 2006

Federalism, Instrumentalism, And The Legacy Of The Rehnquist Court, Peter J. Smith

GW Law Faculty Publications & Other Works

This paper starts from the proposition that although the Rehnquist Court imposed limits on federal power in the name of states' rights far more aggressively than did its post-1937 predecessors, it just as often chose not to impose limits in cases that otherwise fairly can be thought to have presented a question of federalism. The article then makes three claims. First, the article argues that any ultimately satisfying account of the Rehnquist Court's federalism doctrine must acknowledge that the decisions have often appeared to be driven as much by the Justices' policy preferences about the underlying substantive matters at ...


Predictive Decisionmaking, Michael B. Abramowicz Jan 2006

Predictive Decisionmaking, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

In this Article, Professor Abramowicz identifies a regulatory strategy that he calls "predictive decisionmaking" and provides a framework for assessing it. In a predictive decisionmaking regime, public or private decisionmakers make predictions, often of future legal decisions, rather than engage in normative analysis. Several scholars, particularly in recent years, have offered proposals that fit within the predictive decisionmaking paradigm, but have not noted the connection among these proposals. The Article highlights five different mechanisms on which predictive decisionmaking regimes may rely, including predictive standards, enterprise liability, accuracy incentives, partial insurance requirements, and information markets. After identifying several advantages that predictive ...


The Marshall Court And The Originalist's Dilemma, Peter J. Smith Jan 2006

The Marshall Court And The Originalist's Dilemma, Peter J. Smith

GW Law Faculty Publications & Other Works

In response to Anti-Federalist complaints that the Constitution was dangerous because it was ambiguous, James Madison and Alexander Hamilton argued that judges would construe the Constitution in the same manner that they construed statutes, and in the process would fix the meaning of ambiguous constitutional provisions. In other words, the original understanding was that constitutional ambiguities would be resolved, among other means, through adjudication. During his lengthy tenure, Chief Justice John Marshall had ample occasion to fix constitutional meaning, and he presided over a Court that resolved many constitutional ambiguities according to a nationalistic view of the relationship between the ...


An Introduction To The United States Legal System: Cases And Comments, Alberto M. Benítez Jan 2006

An Introduction To The United States Legal System: Cases And Comments, Alberto M. Benítez

GW Law Faculty Publications & Other Works

This casebook introduces non-U.S trained lawyers, law students, and college undergraduates to the intricacies and nuances of our legal system. The world is becoming a smaller place and as a consequence of this globalization, the need for lawyers who are international in perspective and competence is increasing. Whatever one's opinion about globalization, there is no doubt that the U.S. legal system is at the forefront of these changes. This book attempts to compress three years of U.S. legal education into one casebook.

The following materials in this chapter, and throughout this book, will help non-United States ...


The Cul De Sac Of Race Preference Discourse, Christopher A. Bracey Jan 2006

The Cul De Sac Of Race Preference Discourse, Christopher A. Bracey

GW Law Faculty Publications & Other Works

Affirmative action policy remains a contentious issue in public debate despite public endorsement by America’s leading institutions and validation by the United States Supreme Court. But the decades old disagreement is mired in an unproductive rhetorical stalemate marked by entrenched ideology rather than healthy dialogue. Instead of evolving, racial dialogue about the relevance of race in university admissions and hiring decisions is trapped in a cycle of resentment.

In this article, I argue that the stagnation of race preference discourse arises because the basic rhetorical themes advanced by opponents have evolved little over 150 years since the racial reform ...


Reserving, Edward T. Swaine Jan 2006

Reserving, Edward T. Swaine

GW Law Faculty Publications & Other Works

The law of treaty reservations - which enables states to ask that their multilateral obligations be tailored to their individual preferences - has been controversial for over fifty years, and is at present subject to pitched battles within (and between) the International Law Commission and numerous other international institutions. There is broad agreement that existing scheme under the Vienna Convention on the Law of Treaties involves a sharp tradeoff between honoring the unalloyed consent of non-reserving states (that is, those agreeing to the treaty as originally negotiated, which may object to proposed reservations) and respecting the conditioned consent of reserving states; moreover ...


Hail, No: Changing The Chief Justice, Edward T. Swaine Jan 2006

Hail, No: Changing The Chief Justice, Edward T. Swaine

GW Law Faculty Publications & Other Works

How do we get a new chief justice? Traditionally, the President decides between nominating a newcomer and promoting a sitting associate justice, and places either nominee before the Senate for its advice and consent. But this is not constitutionally required, or at least not evidently so, and there is no better time to confront this fact. This short essay explains that Congress could develop a different mechanism for promoting justices without subjecting them to a second appointment - providing, for example, that the position would rotate among sitting justices based on seniority, or that the justices would elect a chief from ...


Privacy Issues Affecting Employers, Employees, And Labor Organizations, Charles B. Craver Jan 2006

Privacy Issues Affecting Employers, Employees, And Labor Organizations, Charles B. Craver

GW Law Faculty Publications & Other Works

Privacy issues arise regularly in employment environments. Employers frequently assert privacy rights when denying non-employee union organizers access to employment premises and limiting the distribution of union literature or the solicitation of authorization cards by current employees. On the other hand, when employers desire to monitor employee computer usage on firm computers to be sure they are not accessing inappropriate sites or engaging in other inappropriate electronic behavior, they give short shrift to employee privacy claims. When employer premises are open to the general public, non-employee access to external areas such as parking lots might provide an appropriate accommodation between ...


The Mysterious Ways Of Mutual Funds: Market Timing, Lawrence A. Cunningham, Tamar Frankel Jan 2006

The Mysterious Ways Of Mutual Funds: Market Timing, Lawrence A. Cunningham, Tamar Frankel

GW Law Faculty Publications & Other Works

The term market timing was little known outside the arcane world of mutual funds until state attorneys general from across the country popularized it. The term's innocuous-sounding ring assumed a more pernicious note when the mysterious ways of mutual funds became more transparent. In its pernicious sense, market timing denominates mutual fund insiders using the inscrutable structures of mutual funds to provide benefits selectively to favored participants at the expense of less favored participants. Mutual fund shares are not like common stocks; investments made using these vehicles are unlike those made through traditional securities markets. While the peculiar features ...


Dialectical Regulation, Territoriality, And Pluralism, Paul Schiff Berman Jan 2006

Dialectical Regulation, Territoriality, And Pluralism, Paul Schiff Berman

GW Law Faculty Publications & Other Works

Scholarly and policy debates about territoriality and nation-state sovereignty are turning to the ways in which such concepts might be changing in an increasingly interconnected world of interlocking governance structures and systems of communication. Robert Ahdieh's provocative and generative essay, Dialectical Regulation, 38 Conn. L. Rev. 863 (2005-2006), attempts a model for understanding this new plural order. He argues that intersystemic regulation is now a significant legal reality, and analyzes the types of interactions we would expect to see among these multiple regulatory authorities. Ahdieh aims to define dialectical regulation, in which regulators exist in some kind of formal ...


Choosing A Text For The Family Law Curriculum Of The Twenty-First Century, Catherine J. Ross Jan 2006

Choosing A Text For The Family Law Curriculum Of The Twenty-First Century, Catherine J. Ross

GW Law Faculty Publications & Other Works

This article describes the Family Law Education Reform (FLER) Project Report and provides recommendations as to how a family law professor should select a course textbook. I note that the FLER Report focuses on the importance of new lawyers being sensitive to gender, race, and class and discuss how a textbook focusing on policy, practice problems, and collaborative skills will satisfy the FLER project’s recommendations.


Punishment And Accountability: Understanding And Reforming Criminal Sanctions In America, Donald Braman Jan 2006

Punishment And Accountability: Understanding And Reforming Criminal Sanctions In America, Donald Braman

GW Law Faculty Publications & Other Works

The vast majority of Americans favor sanctions that require offenders to engage in responsible behavior - to work, pay restitution, or support dependents; to participate in a mandatory job training, literacy, or drug treatment program; or to meet some other prosocial obligation. While this intuitive preference crosses political and ideological divides, nothing in our classical theories of punishment properly accounts for or develops this intuition. In this Article, Donald Braman explores the popular preference for and the benefits that attach to these accountability-reinforcing sanctions. Reviewing existing and original ethnographic, interview, and survey data, he describes why these sanctions have such broad ...


A Case Study In Comparative Procurement Law: Assessing Uncitral's Lessons For U.S. Procurement, Christopher R. Yukins Jan 2006

A Case Study In Comparative Procurement Law: Assessing Uncitral's Lessons For U.S. Procurement, Christopher R. Yukins

GW Law Faculty Publications & Other Works

The United Nations Commission on International Trade Law (UNCITRAL) has commissioned a working group, with delegations from many industrialized and developing nations, to reform and update the UNCITRAL Model Law on Procurement of Goods, Construction and Services. The working group is currently reviewing reforms on a number of fronts. This essay focuses on three areas of reform in particular - electronic communications, electronic reverse auctions, and unrealistically low bidding - to gauge whether lessons from the UNCITRAL debate may be useful for reform in the U.S. procurement system. As the essay reflects, the international debate surrounding UNCITRAL reform does in fact ...


Occ V. Spitzer: An Erroneous Application Of Chevron That Should Be Reversed, Arthur E. Wilmarth Jr. Jan 2006

Occ V. Spitzer: An Erroneous Application Of Chevron That Should Be Reversed, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

This essay criticizes OCC v. Spitzer (S.D.N.Y. 2005), a recent federal court decision dealing with the application of state laws to national banks. The court upheld a regulation issued by the Office of the Comptroller of the Currency ("OCC"), the federal agency that supervises national banks. The OCC's regulation preempts the authority of state officials to file suit in state or federal courts to enforce state laws against national banks. The OCC's regulation asserts that any decision about whether to enforce state laws against national banks is a matter "within the OCC's exclusive purview ...


Setting The Record Straight: Three Concepts Of The Independent Director, Donald C. Clarke Jan 2006

Setting The Record Straight: Three Concepts Of The Independent Director, Donald C. Clarke

GW Law Faculty Publications & Other Works

Despite the surprisingly shaky support in empirical research for the value of independent directors, their desirability seems to be taken for granted in policy-making circles. Yet important elements of the concept of and rationale for independent directors remain curiously obscure and unexamined. As a result, the empirical findings we do have may be misapplied, and judicial gap-filling may be harder than imagined when legislative intent cannot be divined or is contradictory.

This article attempts to unpack the concept broadly understood by the term independent director and to distinguish among its various concrete manifestations. In particular, I discuss the critical differences ...


Linking Domestic Violence, Child Abuse, And Animal Cruelty, Joan Schaffner Jan 2006

Linking Domestic Violence, Child Abuse, And Animal Cruelty, Joan Schaffner

GW Law Faculty Publications & Other Works

For years social science has demonstrated a link between animal abuse and human violence but the legal system has been slow to recognize this link. This article discusses the link among domestic violence, child abuse and animal abuse in the home and how one jurisdiction, the District of Columbia, is addressing this complex and integrated cycle of abuse as family abuse. The legal proposals include mandatory cross-reporting of abuse between child services and animal protection services, recognizing pet abuse with the intent of injuring a human family member as grounds for an intra-family abuse protective order, providing companion animal protection ...


A Grand Slam Of Professional Irresponsibility And Judicial Disregard, Stephen A. Saltzburg Jan 2006

A Grand Slam Of Professional Irresponsibility And Judicial Disregard, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

Many examples of bad lawyering and indifferent judicial responses to bad lawyering concern those who seek to raise the standards of professional conduct and assure adequate legal representation for all clients. This article discusses one case (a death penalty prosecution of William Charles Payton for rape, murder and attempted murder in 1981) to illustrate just how poor the performance of lawyers can be and how largely indifferent judges often are to such performances. With the defendant's life on the line, it appears that none of the legally trained professionals at trial did what professional standards required of them. The ...


Guilt Assuming Hypotheticals: Basic Character Evidence Rules, Stephen A. Saltzburg Jan 2006

Guilt Assuming Hypotheticals: Basic Character Evidence Rules, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

The accused in a criminal case has the right to offer evidence of a pertinent character trait in order to cast doubt on whether he or she would commit the crime charged by the government. This right gives the accused an opportunity to offer predisposition evidence that is otherwise generally inadmissible. Calling a character witness is not without risk, however. The principal risk is that the witness may be cross-examined about specific acts that are inconsistent with the character to which the witness attests. This article discusses Michelson v. United States, and United States v. Pirani, the latter which reminds ...


The Fourth Amendment: Internal Revenue Code Or A Body Of Principles?, Stephen A. Saltzburg Jan 2006

The Fourth Amendment: Internal Revenue Code Or A Body Of Principles?, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

The Supreme Court has made the body of Fourth Amendment law too complicated, inconsistent, and confusing. Prior to Mapp v. Ohio, in 1961, the Court focused its attention on federal law enforcement and devoted less of its docket to criminal procedure cases. After Mapp, the Court was called upon to review state cases and forced to deal with the myriad of state law enforcement issues that inevitably arise. Since Mapp, the Court has made the meaning of the relatively few words that constitute the Fourth Amendment extremely complicated, so that the total body of Fourth Amendment law has begun to ...


The Campaign To Restrict The Right To Respond To Terrorist Attacks In Self-Defense Under Article 51 Of The U.N. Charter And What The United States Can Do About It, Gregory E. Maggs Jan 2006

The Campaign To Restrict The Right To Respond To Terrorist Attacks In Self-Defense Under Article 51 Of The U.N. Charter And What The United States Can Do About It, Gregory E. Maggs

GW Law Faculty Publications & Other Works

Article 51 of the United Nations Charter preserves the right of nations to use military force in self-defense. This broad language would appear to allow nations to use military force in self-defense in response to "armed attacks" by terrorists. But a significant problem has developed over the past twenty years. In a series of resolutions and judicial decisions, organs of the United Nations have attempted to read into Article 51 four very significant and dangerous limitations on the use of military force in self-defense. These limitations find no support in the language of Article 51, they do not accord with ...