Law Commons^™

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sentiment today is that overt intentional sex discrimination in the workplace has receded substantially and has been replaced by more complicated practices of subtle or structural discrimination often tied to women's family commitments.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 …

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.

Improving Regulation Through Incremental Adjustment, Robert L. Glicksman, Sidney A. Shapiro

GW Law Faculty Publications & Other Works

Claiming that existing regulation is excessive and irrational, regulatory critics have successfully convinced Congress and the White House to implement a plethora of procedural requirements to analyze a proposed regulation before it is promulgated. In our book, Risk Regulation at Risk: Restoring A Pragmatic Approach (2003), we argued that the previous initiatives address the possibility of regulatory failure on the wrong end of the regulatory policy implementation process. We suggested that one way of improving regulation would be to rely on incremental adjustments in regulation on the back end of the regulatory process. This article addresses in more detail the …

Lessons For Competition Policy From The Vitamins Cartel, William E. Kovacic

GW Law Faculty Publications & Other Works

Mergers have the potential for negative social welfare consequences from increased likelihood or effectiveness of future collusion. This raises the question of whether there are meaningful thresholds for the post-merger industry that should trigger significant scrutiny by the Department of Justice or Federal Trade Commission. This paper provides empirical analysis relevant to this question. The data does not come from an industry in which there were mergers, but instead from an industry in which explicit collusion was admittedly rampant in the 1990's, the Vitamins Industry. Different vitamin products are produced by different numbers of firms, and for different vitamin products, …

Ipse Dixit At The I.C.J., Sean D. Murphy

GW Law Faculty Publications & Other Works

No abstract provided.

Taking Multinational Corporate Codes Of Conduct To The Next Level, Sean D. Murphy

GW Law Faculty Publications & Other Works

Over the course of the past thirty years, numerous non-state actor codes of conduct have emerged that seek to promote socially-responsible conduct of multinational corporations (MNCs), especially in the developing world. The objective of such codes is to prevent harm or mistreatment of persons or things caused by MNC operations (e.g., the existence of unhealthy worker conditions in an MNC factory). Such harm or mistreatment need not be a core concern for the corporate actor. Indeed, the MNC - in theory driven to maximize its profits although in practice driven by various factors - may benefit far more by inflicting …

The Doctrine Of Preemptive Self-Defense, Sean D. Murphy

GW Law Faculty Publications & Other Works

To the extent that the intervention in Iraq in 2003 is regarded as an act of preemptive self-defense, the aftermath of that intervention may presage an era where states resist resorting to large-scale preemptive self-defense. The intervention in Iraq highlighted considerable policy difficulties with the resort to preemptive self-defense: an inability to attract allies; the dangers of faulty intelligence regarding a foreign state's weapons programs and relations with terrorist groups; the political, economic and human costs in pursuing wars of choice; and the resistance of a local populace or radicalized factions to what is viewed as an unwarranted foreign invasion …

A Theory Of Copyright's Derivative Right And Related Doctrines, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

Borrowing from the rent dissipation literature that has proven useful in patent analysis, in this Article I provide an economic foundation for copyright’s derivative right to prepare sequels and adaptations and suggest a straightforward doctrinal test for that right. I argue that the suppression of competition in creating adaptations of the same copyrighted expression, rather than being a loss, might instead be the derivative right’s chief economic virtue, giving an author control over adaptations and limiting the production of those that would be close substitutes for one another. In Part I, I explain and question the conventional justification of the …

The Bottom Line On Board Diversity: A Cost-Benefit Analysis Of The Business Rationales For Diversity On Corporate Boards, Lisa M. Fairfax

GW Law Faculty Publications & Other Works

The Bottom Line on Board Diversity: A Cost Benefit Analysis of the Business Rationales for Diversity on Corporate Boards critically examines the business rationales for diversity in order to determine whether they can or should be used to encourage greater diversity on the boards of major corporations. The Article acknowledges the validity of some of the business rationales for diversity within corporations more generally, but questions whether those rationales apply with as much force in the context of corporate boards and the obligations board members undertake. On this point, the Article concludes that such rationales promise more, and in some …

Spare The Rod, Spoil The Director? Revitalizing Directors' Fiduciary Duty Through Legal Liability, Lisa M. Fairfax

GW Law Faculty Publications & Other Works

It appears that our society has tacitly agreed to spare corporate directors any significant legal liability - which includes both financial and incarceration - for failing to perform their duties as board members. Thus, over the last twenty years, there has been a virtual elimination of legal liability - particularly in the form of financial penalties - for directors who breach their fiduciary duty of care. This is true despite the fact that we entrust directors with the awesome responsibility of monitoring all of America's corporations as well as the officers and agents within those corporations. More surprisingly, this tacit …

Some Reflections On The Diversity Of Corporate Boards: Women, People Of Color, And The Unique Issues Associated With Women Of Color, Lisa M. Fairfax

GW Law Faculty Publications & Other Works

As one might expect, there are many similarities between the circumstances of women directors and directors of color, which includes African Americans, Latinos, and Asian Americans. Indeed, both groups began appearing on corporate boards in significant numbers during the same period - right after the Civil Rights Movement pursuant to which the push for racial equality throughout society precipitated efforts to achieve greater representation of people of color as well as women on corporate boards. Moreover, while women and people of color have experienced some increase in board representation over the last few decades, both groups also have encountered significant …