Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 86

Full-Text Articles in Law

Is It Sometimes Good To Run Budget Deficits? If So, Should We Admit It (Out Loud)?, Neil H. Buchanan Jan 2006

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, and ...


Voter Identification, Spencer A. Overton Jan 2006

Voter Identification, Spencer A. Overton

GW Law Faculty Publications & Other Works

In the wake of closely contested elections, calls for laws that require voters to present photo identification as a condition to cast a ballot have become pervasive. Advocates tend to rely on two rhetorical devices: (1) anecdotes about a couple of elections tainted by voter fraud; and (2) common sense arguments that voters should produce photo identification because the cards are required to board airplanes, buy alcohol, and engage in other activities. This Article explains the analytical shortcomings of anecdote, analogy, and intuition, and applies a cost-benefit approach generally overlooked in election law scholarship. Rather than rushing to impose a ...


Estoppel And Textualism, Gregory E. Maggs Jan 2006

Estoppel And Textualism, Gregory E. Maggs

GW Law Faculty Publications & Other Works

How might judges who purport to adhere to textualism justify their use of estoppel to affect the application of statutes that say nothing about estoppel? This essay addresses this question. It considers six possible arguments that courts have made or might make to rationalize the recognition of unwritten exceptions to statutes in the name of estoppel. These arguments include the following: (1) Even though the statutory provision at issue says nothing about estoppel, some other legislation expressly authorizes courts to invoke equitable principles, including estoppel; (2) The legislation contains an implied term authorizing the application of estoppel principles; (3) Courts ...


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 ...


What The Shutts Opt-Out Right Is And What It Ought To Be, Alan B. Morrison Jan 2006

What The Shutts Opt-Out Right Is And What It Ought To Be, Alan B. Morrison

GW Law Faculty Publications & Other Works

This article discusses the ramifications of the U.S. Supreme Court's decision in Phillips Petrolem v. Shutts, 472 U.S. 797 (1985), regarding the right of an absent class member to opt out of a class action. The article addresses both the current prevailing understanding of Shutts, which is based on the personal jurisdiction strain of due process jurisprudence, and what the authors believe is a more useful understanding, based on the property rights strain of due process jurisprudence. As an addendum to the article, the authors propose a new civil procedure rule governing class actions that would implement ...


From Cooperative To Inoperative Federalism: The Perverse Mutation Of Environmental Law And Policy, Robert L. Glicksman Jan 2006

From Cooperative To Inoperative Federalism: The Perverse Mutation Of Environmental Law And Policy, Robert L. Glicksman

GW Law Faculty Publications & Other Works

Beginning in 1970, Congress adopted a series of statutes to protect public health and the environment that represented an experiment in cooperative federalism. The operative principle of cooperative federalism is that the federal government establishes a policy - such as protection of public health and the environment and sustainable natural resource use - and then enlists the aid of the states, through a combination of carrots and sticks, in pursuing that policy. The result is a system in which both levels of government work together to achieve a common goal. If the process works well, the synergism of related federal and state ...


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 ...


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 ...


Privacy For The Working Class: Public Work And Private Lives, Michael Selmi Jan 2006

Privacy For The Working Class: Public Work And Private Lives, Michael Selmi

GW Law Faculty Publications & Other Works

Privacy has become the law's chameleon, simultaneously everywhere and nowhere. This is particularly true of the workplace where employees often seek some private space but where the law, particularly the formidable employment-at-will rule, typically frustrates that search. As the workplace has expanded both in its scope and importance, additional concerns have been raised about an employer's potential reach outside of the workplace. In this symposium contribution, I explore the privacy issue by asking a fundamental question: what do employees deserve? My answer is that, as a matter of policy, we ought to concede privacy issues as the employer ...


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 ...


Lost In Translation? Corporate Legal Transplants In China, Donald C. Clarke Jan 2006

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 needs to ...


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 (Neglected) Employment Dimension Of The World Trade Organization, Steve Charnovitz Jan 2006

The (Neglected) Employment Dimension Of The World Trade Organization, Steve Charnovitz

GW Law Faculty Publications & Other Works

A key assumption underlying the World Trade Organization (WTO) is that its program of trade negotiations will strengthen the world economy and lead to more trade, investment, employment and income growth throughout the world. In the author's view, the WTO truly is strengthening the world economy and promoting trade and investment in many parts of the world. Yet the rest of the thesis is debatable. Is it necessarily true that the WTO and the trade negotiations it sponsors are increasing employment and income growth throughout the world? Indeed, even aggregating the world economy into one planetary unit, one wonders ...


International Trade And Developing Countries (Introduction), Steve Charnovitz Jan 2006

International Trade And Developing Countries (Introduction), Steve Charnovitz

GW Law Faculty Publications & Other Works

This article is an introduction to the Fordham International Law Journal, Volume 29, Number 2. The journal issue addresses the challenge of trade and developing countries. The most powerful countries have sound financial, political, environmental, and social reasons to promote sustainable economic growth throughout the world. Nevertheless, the policies used to do so have failed or have, in some instances, been designed in such a hypocritical way that they could not possibly succeed in their ostensible purposes. The issue offers a useful contribution to the debate about what works and does not work in promoting development.


Constitutional Structure, Judicial Discretion, And The Eighth Amendment, Bradford R. Clark Jan 2006

Constitutional Structure, Judicial Discretion, And The Eighth Amendment, Bradford R. Clark

GW Law Faculty Publications & Other Works

The Supreme Court recently resolved a longstanding split in its Eighth Amendment jurisprudence when it declared that the cruel and unusual punishments clause delegates to federal courts broad discretion to exercise independent judgment to evaluate the propriety of punishments authorized by state law. The Court claimed authority to displace a punishment - however widely employed - based on the Court's own assessment of the penological effectiveness of the punishment and the moral culpability of the particular class of offenders. Notably, the Court did not, and has not in the modern era, attempted to justify its approach in terms of either the ...


A Constitutional Hierarchy Of Religions? Justice Scalia, The Ten Commandments, And The Future Of The Establishment Clause, Thomas Colby Jan 2006

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 ...


The Relevance Of The Nlra And Labor Organizations In The Post-Industrial Global Economy, Charles B. Craver Jan 2006

The Relevance Of The Nlra And Labor Organizations In The Post-Industrial Global Economy, Charles B. Craver

GW Law Faculty Publications & Other Works

As the United States continues to transition from a manufacturing to a post-industrial service-oriented economy that is directly affected by global competition, the strength of domestic labor organizations has declined and private sector union membership has fallen to below 8 percent. Most unions continue to behave like the craft and industrial organizations of the mid-1900s. They employ appeals that once worked well for blue collar manufacturing workers to appeal to new-age white collar and service personnel who view traditional unionization as working class. If labor organizations hope to appeal to twenty-first century employees, they must devise strategies that will resonate ...


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 ...


Language, Deals And Standards: The Future Of Xml Contracts, Lawrence A. Cunningham Jan 2006

Language, Deals And Standards: The Future Of Xml Contracts, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

eXtensible Markup Language (XML) structures information in documentary systems ranging from financial reports to medical records and business contracts. XML standards for specific applications are developed spontaneously by self-appointed technologists or entrepreneurs. XML's social and economic stakes are considerable, especially when developed for the private law of contracts. XML can reduce transaction costs but also limit the range of contractual expression and redefine the nature of law practice. So reliance on spontaneous development may be sub-optimal and identification of a more formal public standard setting model necessary. To exploit XML's advantages while minimizing risks, this Article envisions creating ...


Public Law Values In A Privatized World, Laura T. Dickinson Jan 2006

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 ...


Coordination, Property & Intellectual Property: An Unconventional Approach To Anticompetitive Effects & Downstream Access, F. Scott Kieff Jan 2006

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 ...


Engineering A Deal: Toward A Private Ordering Solution To The Anticommons Problem, F. Scott Kieff, Troy A. Paredes Jan 2006

Engineering A Deal: Toward A Private Ordering Solution To The Anticommons Problem, F. Scott Kieff, Troy A. Paredes

GW Law Faculty Publications & Other Works

The problems of the intellectual property ("IP") anticommons are infamous. Many people fear that the potential for vast numbers of IP rights to cover a single good or service will prevent an enterprise from even attempting to launch a business for fear of being unduly taxed or retarded or simply held up. This Article offers a solution based on private ordering within the context of existing laws. This approach uses a limited liability entity structured so that IP owners are given an actual stake in the operating business and thus an incentive to participate in the enterprise; and yet at ...


Justice Rehnquist And The Dismantling Of Environmental Law, Robert L. Glicksman, James May Jan 2006

Justice Rehnquist And The Dismantling Of Environmental Law, Robert L. Glicksman, James May

GW Law Faculty Publications & Other Works

Chief Justice William H. Rehnquist was uniquely situated to have a profound impact on the development of federal environmental law - both because of the overlap of his tenure with the development of the field of environmental law and because of his four-decade tenure on the U.S. Supreme Court, more than one-half of which was as Chief Justice. Before his death on September 3, 2005, Rehnquist heard the vast majority of the Court`s environmental cases during the modern environmental era, penning opinions in 25% of them, and affording him an opportunity to shape environmental law, especially during its formative ...


Using Ex Post Evaluations To Improve The Performance Of Competition Policy Authorities, William E. Kovacic Jan 2006

Using Ex Post Evaluations To Improve The Performance Of Competition Policy Authorities, William E. Kovacic

GW Law Faculty Publications & Other Works

Competition policy is a work in progress. Charting the future course of competition policy can benefit heavily from looking back and asking two fundamental questions. First, did the agency’s interventions produce good results? Second, did the agency’s managerial processes help ensure that the agency selected initiatives that would yield good outcomes? This article discusses how government competition authorities might use ex post evaluations of enforcement decisions, operational mechanisms, and organizational design to improve the quality of their work. Preparing performance measures and conducting evaluations provide valuable tools for answering critical questions about the administration of competition policy.

The ...


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 ...


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 ...


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 ...