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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 ...


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 ...


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 ...


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 ...


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 ...


Race In The City: The Triumph Of Diversity And The Loss Of Integration, Michael Selmi Jan 2006

Race In The City: The Triumph Of Diversity And The Loss Of Integration, Michael Selmi

GW Law Faculty Publications & Other Works

This symposium piece explores the current state of our cities with a particular emphasis on political power, education and housing, and examines whether our move away from integration and towards diversity has been a trade worth making. Despite the transformation of most of the largest cities to majority-minority status, the latest data indicate that our housing remains deeply segregated, and urban schools deeply troubled, and in many instances, whites have been able to retain political power. The increased emphasis on diversity has not translated into the expected multicultural renaissance. The essay also explores the emerging issues relating to the ascendancy ...


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

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 ...


A Taxonomy Of Privacy, Daniel J. Solove Jan 2006

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 Jan 2006

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.


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 ...


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 ...


Women In The Workplace: Which Women, Which Agenda?, Michael Selmi, Naomi R. Cahn Jan 2006

Women In The Workplace: Which Women, Which Agenda?, Michael Selmi, Naomi R. Cahn

GW Law Faculty Publications & Other Works

Much of the work family literature that has blossomed over the last decade has focused on professional women and has emphasized policy changes that would be of less utility to many other working women and men. In this symposium contribution, we explore the recent data on working time to demonstrate that in today's economy more women are underemployed rather than overemployed. We also demonstrate that although professional women tend to work the longest hours, they also tend to have the greatest means, both in income and workplace benefits, to support them in achieving a workable balance between their work ...


Private Monitoring Of Gatekeepers: The Case Of Immigration Enforcement, Jeffrey Manns Jan 2006

Private Monitoring Of Gatekeepers: The Case Of Immigration Enforcement, Jeffrey Manns

GW Law Faculty Publications & Other Works

This article shows how the enlistment of private monitors can overcome the limits of public enforcers in overseeing gatekeeper compliance with liability-induced duties. Gatekeepers are private actors who possess skills or advantages that allow them to detect and prevent wrongdoing in a more cost-effective way than the state. The problem enforcers face is that the same skills or advantages that equip gatekeepers with the ability to identify wrongdoing often provide them with the means and incentives to subvert their duties and to evade public oversight. Policymakers have largely attempted to remedy this challenge by increasing sanctions against gatekeepers and have ...


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 Corporate Lawyer And 'The Perjury Trilemma', Thomas D. Morgan Jan 2006

The Corporate Lawyer And 'The Perjury Trilemma', Thomas D. Morgan

GW Law Faculty Publications & Other Works

This paper extends Monroe Freedman's idea of the criminal lawyer's "perjury trilemma" to current issues faced by corporate lawyers dealing with perceived pressures on the attorney-client privilege. The duties of criminal defense and corporate lawyers are more similar than they often seem. Corporate lawyers' duties of honesty in dealing with third parties are closely analogous to criminal lawyers' duties of honesty in dealing with a court. Both sets of lawyers also have an important interest in fostering open communications with their clients. Where their situations differ is not with respect to lawyer obligations but with respect to their ...


Constructing A Bid Protest Process: Choices Every Procurement Challenge System Must Make, Daniel I. Gordon Jan 2006

Constructing A Bid Protest Process: Choices Every Procurement Challenge System Must Make, Daniel I. Gordon

GW Law Faculty Publications & Other Works

Many public procurement systems, within the United States and abroad, have established systems for allowing vendors to challenge the conduct of procurement processes. Providing an effective domestic review mechanism for vendors who believe that government procurement officials have not conducted an acquisition lawfully brings an important measure of transparency and accountability to public procurement systems. This brief article discusses the goals of these bid protest systems, and then presents key choices that must be made in crafting such a system. For example: Where in the government is the protest forum located? How broad is the forum's jurisdiction? Who has ...


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 ...


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 ...


Nongovernmental Organizations And International Law, Steve Charnovitz Jan 2006

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 ...


The Common Law As An Iterative Process: A Preliminary Inquiry, Lawrence A. Cunningham Jan 2006

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 ...


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 ...


The Jurisdictional Heritage Of The Grand Jury Clause, Roger A. Fairfax Jr. Jan 2006

The Jurisdictional Heritage Of The Grand Jury Clause, Roger A. Fairfax Jr.

GW Law Faculty Publications & Other Works

For the first 150 years of our constitutional history, a valid grand jury indictment was deemed to be a mandatory prerequisite to a federal court's exercise of criminal subject matter jurisdiction. Under that view of the Grand Jury Clause, a defendant in a federal felony case could neither waive nor forfeit the right to grand jury indictment. A critical examination of the historical evidence reveals that the legal realist criminal procedure reform project of the early twentieth century advanced a pragmatic critique of the usefulness of the grand jury that culminated in a provision of the Federal Rules of ...


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 ...


The Sarbanes-Oxley Act: Legal Implications And Research Opportunities, Lawrence A. Cunningham, Stephen Kwaku Asare, Arnold Wright Jan 2006

The Sarbanes-Oxley Act: Legal Implications And Research Opportunities, Lawrence A. Cunningham, Stephen Kwaku Asare, Arnold Wright

GW Law Faculty Publications & Other Works

Congress passed the Sarbanes Oxley Act to restore investor confidence, which had been deflated by massive business and audit failures, epitomized by the demise of the Enron Corporation and Arthur Anderson LLP. The Act altered the roles and responsibilities of auditors, corporate officers, audit committee members, as well as other participants in the financial reporting process. We evaluate the potential legal implications of some of the Act's major provisions and anticipate participants' likely responses. Our evaluation suggests that these provisions will significantly change behavior, increase compliance costs and alter the legal landscape. We also identify promising avenues for future ...


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 ...


Torture And Contract, Laura T. Dickinson Jan 2006

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 ...