Law Commons^™

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 …

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 …

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. …

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 analysis …

A Taxonomy Of Privacy, Daniel J. Solove

GW Law Faculty Publications & Other Works

Privacy is a concept in disarray. Nobody can articulate what it means. As one commentator has observed, privacy suffers from an embarrassment of meanings. Privacy is far too vague a concept to guide adjudication and lawmaking, as abstract incantations of the importance of privacy do not fare well when pitted against more concretely-stated countervailing interests.

In 1960, the famous torts scholar William Prosser attempted to make sense of the landscape of privacy law by identifying four different interests. But Prosser focused only on tort law, and the law of information privacy is significantly more vast and complex, extending to Fourth …

A Brief History Of Information Privacy Law, Daniel J. Solove

GW Law Faculty Publications & Other Works

This book chapter provides a brief history of information privacy law in the United States from colonial times to the present. It discusses the development of the common law torts, Fourth Amendment law, the constitutional right to information privacy, numerous federal statutes pertaining to privacy, electronic surveillance laws, and more. It explores how the law has emerged and changed in response to new technologies that have increased the collection, dissemination, and use of personal information.

A Tale Of Two Bloggers: Free Speech And Privacy In The Blogosphere, Daniel J. Solove

GW Law Faculty Publications & Other Works

This short essay was written for the symposium, Bloggership: How Blogs are Transforming Legal Scholarship, held at Harvard Law School on April 27-28, 2006. In this essay, Professor Solove examines Glenn Reynold's new book, An Army of Davids, which champions little guy bloggers (the Davids) who are taking on mainstream media entities (the Goliaths).

Who exactly is David? We have a rather romantic conception of bloggers; we envision Eugene Volokh, but most bloggers are probably more akin to Jessica Cutler, the U.S. Senate staffer who blogged about sex gossip. The average blogger is a teenager writing an online diary, not …

The Multistate Bar Exam As A Theory Of Law, Daniel J. Solove

GW Law Faculty Publications & Other Works

What if the Bar Exam were read as a work of jurisprudence? What is its theory of law? How does the Bar Exam compare to works of jurisprudence by H.L.A. Hart, Ronald Dworkin, Karl Llewellyn, and others? This short tongue-in-cheek book review of the Bar Exam seeks to answer these questions. Each year, thousands of lawyers-to-be ponder over it, learning its profound teachings on the meaning of the law. They study it for months, devoting more time to it than practically any other jurisprudential text. It therefore comes as a great surprise that such a widely read and studied work …

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 …

Lost In Translation? Corporate Legal Transplants In China, Donald C. Clarke

GW Law Faculty Publications & Other Works

This essay examines an old question - why it is often so difficult for transplanted legal norms and institutions to take - with the hope of shedding a bit of new light on it through a specific focus on institutions for corporate governance in China. Foreign norms and institutions are borrowed because they seem to the borrowers to serve some need. Very often they are borrowed in a time of rapid social change in which the home culture, so to speak, is lagging behind. But the problem of fit is real and severe.

First, although the borrowers may imagine their …

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 efforts …

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 …

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 …

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 …

Shareholders As Proxies: The Contours Of Shareholder Democracy, Dalia Tsuk Mitchell

GW Law Faculty Publications & Other Works

This article explores the long-standing suspicion of the individual shareholder and the corresponding ambivalence about shareholder democracy as it is seen in conversations about the shareholder's role in the modern public corporation throughout the twentieth century.

The article examines two competing conceptions of the shareholder's role in the corporation: one focuses on the role of shareholders as investors, the other emphasizes the role of shareholders as potential participants in corporate management. I argue that scholars and reformers who have conceived of shareholders as investors limited the locus of shareholder democracy to the market. The writings of Louis Brandeis, Henry Manne, …

Clogs In The Pipeline: The Mixed Data On Women Directors And Continued Barriers To Their Advancement, Lisa M. Fairfax

GW Law Faculty Publications & Other Works

The longstanding disparity between the percentage of women in the workforce and their membership on corporate boards indicates that women continue to face significant barriers to corporate board membership. Evidence drawn from an empirical study on women directors at Fortune 100 companies demonstrates that the mere passage of time does not eliminate these barriers. This empirical study confirms that women have made considerable progress since 1934, but the aggregate number of women directors is small when compared against their percentages in the workforce and school population.

The Sarbanes-Oxley Act of 2002 may have resulted in changes in board composition that …

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.

Rethinking Interest Representation In The European Union. Review Of Law, Legitimacy And European Governance: Functional Participation In Social Regulation, By Stijn Smismans, Francesca Bignami

GW Law Faculty Publications & Other Works

This article reviews the book, Law, Legitimacy, and European Governance: Functional Participation in Social Regulation, by Stijn Smismans. Law, Legitimacy, and European Governance is part of a movement to reinvent the Economic and Social Committee and the form of interest group politics that originated there—what Smismans calls “functional participation.” Smismans argues that functional participation can contribute to the legitimacy of the Economic and Social Committee and that the constitutional debates concerning the construction of a supranational European polity have largely neglected this European project. The book assesses the full range of European bodies that were originally created to represent economic …

Fear Of Democracy: A Cultural Evaluation Of Sunstein On Risk, Donald Braman, Dan M. Kahan, Paul Slovic, John Gastil

GW Law Faculty Publications & Other Works

What dynamics shape public risk perceptions? What significance should such perceptions have in the formation of risk regulation? In Laws of Fear: Beyond the Precautionary Principle (2005), Cass Sunstein catalogs a variety of cognitive and social mechanisms that he argues inflate public estimations of various societal risks. To counter the impact of irrational public fears, he advocates delegation of authority to politically insulated experts using economic cost-benefit analysis. Missing from Sunstein's impressive account, however, is any attention to the impact of cultural cognition, the tendency of individuals to form risk perceptions that reflect and reinforce their cultural worldviews. Relying on …

Is It Sometimes Good To Run Budget Deficits? If So, Should We Admit It (Out Loud)?, Neil H. Buchanan

GW Law Faculty Publications & Other Works

There are bad deficits and there are good deficits. What makes a fiscal deficit good or bad depends on both the context in which the deficit is run and the reason that the deficit is rising. The belief that it is unquestionably foolish to adopt policies that directly or indirectly increase the government's annual borrowing on the financial markets - which is what it means to run a budget deficit - is not the universal truth that the current conventional wisdom might imply. Budget deficits are potentially dangerous and must be monitored carefully, but they are not always, inevitably, completely, …

Poor Children: Child Witches And Child Soldiers In Sub-Saharan Africa, Naomi R. Cahn

GW Law Faculty Publications & Other Works

This paper, written for a symposium on The Mind of a Child, examines two different aspects of the accountability of children: those children who are thrown away by their families because they are sorcerers, and those children who become soldiers and, through their involvement in armed conflict, inflict violence and death on others, including children. Like all other children, both sets of children are especially vulnerable because of their developmental (im)maturity. Indeed, as policy-makers struggle to develop strategies for responding to the needs of these children, the new neuroscientific literature provides yet another basis for arguing that children must be …

Taiwan's Wto Membership And Its International Implications, Steve Charnovitz

GW Law Faculty Publications & Other Works

In contrast to other international organizations, the World Trade Organization does not require its members to be states. This constitutional feature has allowed Taiwan to join the WTO alongside China. As a result, the WTO is now the only major international organization in which Taiwan can participate as a full member. This article explores some implications of this unique situation for Taiwan, for the WTO, and for international law. The article contends that Taiwan's membership in the WTO is not itself a bilateral treaty with China and does not itself change the legal relationship between Taiwan and China. What Taiwan's …

Nongovernmental Organizations And International Law, Steve Charnovitz

GW Law Faculty Publications & Other Works

This article examines NGOs and their advocacy activities aimed at influencing international relations. The article addresses longstanding issues such as the legal status of NGOs, as well as new problems such as whether NGO lobbying in intergovernmental forums is democratically legitimate. In doing so, the article draws upon past scholarship to shed light on the guiding ideas in the contemporary debate regarding NGOs. Part I examines issues regarding the identity of NGOs and then catalogs the ways that state practice incorporates NGOs into authoritative decision making. Part II looks at the legal status of NGOs in international law. Part III …

A Constitutional Hierarchy Of Religions? Justice Scalia, The Ten Commandments, And The Future Of The Establishment Clause, Thomas Colby

GW Law Faculty Publications & Other Works

If there is one principle of Establishment Clause jurisprudence that has enjoyed the unanimous support of all of the Justices of the Supreme Court over the last half century, it is that all religions are afforded equal status under the Constitution. With his dissenting opinion in the 2005 Ten Commandments cases, however, Justice Scalia has upset that consensus. According to Justice Scalia's dissent, the Establishment Clause affords greater protection to the believers of some religions (Christianity, Judaism, Islam) than others (Hinduism, Buddhism, no religion, everything else). Turning traditional constitutional law on its head, Justice Scalia's approach treats the Establishment Clause …

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 Common Law As An Iterative Process: A Preliminary Inquiry, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

The common law often is casually referred to as an iterative process without much attention given to the detailed attributes such processes exhibit. This Article explores this characterization, uncovering how common law as an iterative process is one of endless repetition that is simultaneously stable and dynamic, self-similar but evolving, complex yet simple. These attributes constrain the systemic significance of judicial discretion and also confirm the wisdom of traditional approaches to studying and learning law. As an iterative system, common law exhibits what physicists call sensitive dependence on initial conditions. This generates a path dependency from which it may be …

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 of …

Public Law Values In A Privatized World, Laura T. Dickinson

GW Law Faculty Publications & Other Works

Although domestic administrative law scholars have long debated privatization within the US, this debate has not confronted the growing phenomenon of privatization in the international realm or its impact on the values embodied in public international law. Yet, with both nation-states and international organizations increasingly privatizing foreign affairs functions, privatization is now as significant a phenomenon internationally as it is domestically. For example, states are turning to private actors to perform core military, foreign aid, and diplomatic functions. Military privatization entered the popular consciousness in 2004, when private contractors working for the US government abused detainees at Abu Ghraib prison …

Torture And Contract, Laura T. Dickinson

GW Law Faculty Publications & Other Works

This essay is a contribution to the War Crimes Research Symposium: "Torture and the War on Terror” at Case Western Reserve University School of Law, October 7, 2005. The symposium raised important questions about the problem of torture and the use of torture in the so-called "War on Terror." In considering this problem, this essay focuses on an aspect of the issue that has only recently received popular and scholarly attention, but that is likely to have profound implications: the privatization of military functions, and specifically, the privatization of torture. Such privatization may, at first blush, seem to render it …

Coordination, Property & Intellectual Property: An Unconventional Approach To Anticompetitive Effects & Downstream Access, F. Scott Kieff

GW Law Faculty Publications & Other Works

Countless high profile cases like the recent patent litigation threatening to shut down the BlackBerry® service have long drawn sharp criticism; and in response, most of the intellectual property (IP) literature argues for the use of weaker, or liability rule, enforcement as a tool for solving the problems of anticompetitive effects and downstream access while still providing sufficient rewards to IP creators. This paper takes an unconventional approach under which rewards don't matter much, but coordination does matter a great deal. The paper shows how stronger, or property rule, enforcement facilitates the good type of coordination that increases competition and …