Law Commons^™

Constitutional Existence Conditions And Judicial Review, Matthew D. Adler, Michael C. Dorf

Faculty Scholarship

Although critics of judicial review sometimes call for making the entire Constitution nonjusticiable, many familiar norms of constitutional law state what we call "existence conditions" that are necessarily enforced by judicial actors charged with the responsibility of applying, and thus as a preliminary step, identifying, propositions of sub-constitutional law such as statutes. Article I, Section 7, which sets forth the procedures by which a bill becomes a law, is an example: a putative law that did not go through the Article I, Section 7 process and does not satisfy an alternative test for legal validity (such as the treaty-making provision …

The Puzzle Of Ex Ante Efficiency: Does Rational Approvability Have Moral Weight?, Matthew D. Adler

Faculty Scholarship

A governmental decision is "ex ante efficient" if it maximizes the satisfaction of everyone's preferences ex ante, relative to other possible decisions. Equivalently, each affected person would be rational to approve the decision, given her preferences and beliefs at the time of the choice. Does this matter, morally speaking? Do governmental officials - legislators, judges, regulators - have a moral reason to make decisions that are ex ante efficient? The economist's answer is "yes." "Ex ante efficiency" is widely seen by welfare economists to have moral significance, and often appears within law-and-economics scholarship as a criterion for evaluating legal doctrines. …

Why Is There So Little Money In U.S. Politics?, John M. De Figueiredo, Stephen Ansolabehere, James M. Snyder Jr.

Faculty Scholarship

No abstract provided.

Seventh Aspect Of Self-Hatred: Race, Latcrit, And Fighting The Status Quo, Jerome Mccristal Culp Jr.

Faculty Scholarship

No abstract provided.

Linking Intellectual Property Rights In Developing Countries With Research And Development, Technology Transfer, And Foreign Direct Investment Policy: A Case Study Of Egypt's Pharmaceutical Industry, Sahar Aziz

Faculty Scholarship

This Note focuses on TRIPS' impact on the pharmaceutical industry as well as health care in developing nations. By using Egypt as a case study, this Note aims to emphasize that the benefits of TRIPS for developing nations depends on the linkage between intellectual property rights (IPR) and other legal regimes, particularly drug regulation, technology transfer, and foreign direct investment (FDI) policies. The failure to adopt a holistic approach to the creation of effective and beneficial intellectual property rights regimes will merely increase the western pharmaceuticals' market share and increase drug prices in developing nations.6 By asking whether Egypt, versus …

The Virtues Of Knowing Less: Justifying Privacy Protections Against Disclosure, Daniel J. Solove

GW Law Faculty Publications & Other Works

This Article develops justifications for protections against the disclosure of private information. An extensive body of scholarship has attacked such protections as anathema to the Information Age, where the free flow of information is championed as a fundamental value. This Article responds to two general critiques of disclosure protections: (1) that they inhibit freedom of speech, and (2) that they restrict information useful for judging others.

Regarding the free speech critique, the Article argues that not all speech is of equal value; speech of private concern is less valuable than speech of public concern. The difficulty, however, is distinguishing between …

Can Pragmatism Be Radical? Richard Posner And Legal Pragmatism, Daniel J. Solove, Michael Sullivan

GW Law Faculty Publications & Other Works

Richard Posner's Law, Pragmatism, and Democracy (2003) is the most comprehensive account to date of his pragmatic vision of the law and democracy. For the most part, Posner's theory of pragmatism has been attacked externally, mainly by theorists unsympathetic to pragmatism. In contrast, in this Review, we contest Posner's account of pragmatism from within the pragmatic tradition. We contend that Posner's views are problematic not because they are pragmatic, but because they are often not pragmatic enough.

We put Posner's account of pragmatism to the pragmatic test by examining its implications. Posner views ideals as useless and philosophical theorizing as …

Does Financial Liberalization Increase The Likelihood Of A Systemic Banking Crisis? Evidence From The Past Three Decades And The Great Depression, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

Over the past three decades, leading industrial nations and many developing countries have deregulated their financial markets. Financial liberalization has produced major benefits, including more efficient intermediation of financial resources, more rapid economic development and faster growth in trade. At the same time, however, many banking crises have occurred in countries that previously adopted programs of financial deregulation. This essay provides a brief overview of banking crises in international markets since 1973, together with more detailed discussions of Japan's financial crisis that began in 1990, the U.S. banking crises of 1929-33 and 1980-92, and the challenges confronting major U.S. and …

The Judicial Disabling Of The Employment Discrimination Provisions Of The Americans With Disabilities Act, Charles B. Craver

GW Law Faculty Publications & Other Works

This article explores a series of Supreme Court decisions making it more difficult for disabled individuals to assert rights under the employment discrimination provisions of the Americans with Disabilities Act. The Court first held that ADA claimants must have their disabilities considered in their corrected or medicated condition. So long as they are able to use prostheses, hearing aids, medication, or other means to control their conditions, they are not to be considered disabled. The Court further held that persons will only be considered disabled if they have conditions that severely limit them with respect to a major life activity. …

Thinking Race, Making Nation (Reviewing Glenn C. Loury, The Anatomy Of Racial Inequality), Christopher A. Bracey

GW Law Faculty Publications & Other Works

We live in a race-conscious culture. As Americans, we are a nation of people who self-consciously chose to adopt a vision of society that embraced lofty ideals of individual freedom and democracy for all along with powerful mechanisms for devastating racial oppression. Our history is replete with instances of differential treatment on account of race - slavery being only the most egregious example - that achieved the desired effect of generating remarkable disparities in socioeconomic well-being among individuals and between different racial groups. Such disparities are not simply historical artifacts. They are facts of the contemporary American racial landscape as …

The Parent-Child Privilege In Context, Catherine J. Ross

GW Law Faculty Publications & Other Works

The article argues that children cannot fully exercise their constitutional rights under the Fifth and Sixth Amendments without being able to confide freely in their parents and advocates for the creation of a parent-child privilege.

Including Law In The Mix: The Role Of Law, Lawyers, And Legal Training In Child Advocacy, Catherine J. Ross

GW Law Faculty Publications & Other Works

This chapter describes the recent trends in family law scholarship, training, and practice. The first section of this chapter provides an overview of the scope of modern family law and the range of skills brought by lawyers. The second section considers the legal profession’s interest in using its collective talents to improve children’s lives in context of the broader intellectual trends in thinking about family issues. In the third section, I describe the current goals of legal education, explain why law schools should offer interdisciplinary training to students who plan to work in family law, and discuss some innovative multidisciplinary …

Barriers To Reliable Credibility Assessments: Domestic Violence Victim-Witnesses, Laurie S. Kohn

GW Law Faculty Publications & Other Works

This Article examines the challenges for victims of domestic violence appearing in court when the victim presents differently than the paradigmatic domestic violence victim. In particular, this Article analyzes the strategic dilemma of presenting a victim who refuses to admit (or cannot access or does not experience) fear of the batterer, and the victim who feels anger towards her assailant.

This Article addresses possible policy and tactical responses to this challenge. Suggesting legislative changes that eliminate requirements that victims prove subjective fear of a battering partner, the Article further analyzes the use of expert witnesses to assist jurors and judges …

Foreword: The Administrative Law Of The European Union, Francesca Bignami

GW Law Faculty Publications & Other Works

This special issue of Law and Contemporary Problems is devoted to the administrative law of the European Union. The foreword sets the stage by narrating the history of legal scholarship on European administration, explaining the public law methodology of the contributors, and describing the different legal styles that separate the civil from the common law traditions and that mark the contributions. The foreword then previews the individual articles, organized by the law of centralized or “direct” administration by the European Commission and the law of decentralized or “mixed” administration, in which national civil servants interact with their counterparts elsewhere and …

Three Generations Of Participation Rights Before The European Commission, Francesca Bignami

GW Law Faculty Publications & Other Works

This article offers a conceptual framework for analyzing the development of participation rights before the executive branch of the European Community - the European Commission. Process rights before the Commission can be divided into three categories, each of which is associated with a distinct phase in Community history and a particular set of institutional actors. The first set of rights, the right to be heard when the Commission inflicts sanctions or other forms of hardship in individual proceedings, emerged in the 1970s in competition law. This phase was driven by the Court f Justice, influenced by the English administrative law …

Perfecting Patent Prizes, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

A number of commentators in recent years have suggested permitting holders of intellectual property rights to give up these rights in exchange for cash prizes from the government. In this Article, Professor Abramowicz shows that each of the proposals has significant flaws that would make implementation impractical and argues that no single perfect formula or algorithm for determining the size of prizes exists. A prize system is nonetheless worth pursuing because it could increase social welfare significantly by eliminating deadweight loss. Professor Abramowicz recommends a relatively simple approach that would complement rather than replace the patent system. The proposal is …

The Impact Of Economic Globalization On Compliance, Dinah L. Shelton

GW Law Faculty Publications & Other Works

The introductory chapter of this book begins by defining globalization and the novel notion of the “common concern of humanity” and describes the ethical, cultural, and economic considerations underlying protection of the biosphere. The chapter describes the evolution of the common concern of humanity in depth and describes the increased presence of international organizations. Next, the chapter introduces the Marrakesh Charter and its corresponding economic principles. The chapter concludes that there exists the need to create an international liability system for both states and individuals for environmental degradation caused by international trade.

Assessing The Ilo's Efforts To Develop Migration Law, Steve Charnovitz

GW Law Faculty Publications & Other Works

The world community has increasingly recognized the movement of people as an issue of global policy rather than an exclusive sovereign preserve of individual governments. In considering whether a good case exists for establishing a World Migration Organization, policymakers and stakeholders should look at whether existing international organizations can be better used to enhance international cooperation on migration policy. One such organization may be the International Labour Organization (“ILO”), a UN specialized agency that has worked on migrant issues from its beginning. This article analyzes the work of the ILO in international migration as prolegomena to assessing whether its role …

The World Trade Organization And Law Enforcement, Steve Charnovitz

GW Law Faculty Publications & Other Works

Increased threats from transborder criminal activity are leading to stronger governmental and intergovernmental responses in the military, judicial, and regulatory arenas. These efforts, particularly the non-military efforts, raise a new issue in international economic law: the intersection between trade and law enforcement. This paper provides an overview of this “trade and law enforcement” linkage in four areas: (1) security, (2) health, (3) human rights, and (4) environmental protection. To explain the linkage between trade and law enforcement, I present the taxonomy of how trade measures are usable for law enforcement, and I offer a synopsis of the WTO provisions relevant …

The American Worker: Junior Partner In Success And Senior Partner In Failure, Charles B. Craver

GW Law Faculty Publications & Other Works

This article explores the degree to which American workers are treated like second-class parties by corporate leaders. When business firms do well, share holders and managers obtain significant financial gains, but rank-and-file workers do not usually share in those gains. On the other hand, when firms do poorly, thousands of employees are laid off, while managers obtain bonuses for their forthright actions designed to curtail labor costs. These developments correspond directly to the decline of labor organizations in the United States. When unions represented 35 percent of private sector workers in the late 1950s and 1960s, wages and benefits were …

The Waning Importance Of Revisions To U.C.C. Article 2, Gregory E. Maggs

GW Law Faculty Publications & Other Works

Article 2 of the Uniform Commercial Code governs contracts for the sale of goods. This article seeks to show that, however urgent the need to modernize Article 2 was in 1990, this need ironically has waned with the passage of time. Article 2 requires less change now than it did a decade ago to meet the requirements of modern commerce. The article supports this claim by looking at three very significant developments that have occurred since 1990: the growth of electronic commerce, the decision not to address software licenses in article 2, and the accumulation of a decade of precedents …

Speeding Up The Crawl To The Top, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

The literature on competition in corporate law has debated whether competition is a "race to the bottom" or a "race to the top.” This Article endorses the increasing scholarly consensus that competition improves corporate law but argues that the pace of innovation in corporate law is likely to be slow. Because benefits of corporate law innovation are not internalized, neither states nor firms will have sufficient incentives to innovate. That competitive federalism is “to the top" suggests that the model could be applied beyond the corporate charter context, for example to areas such as bankruptcy, but that benefits from such …

The Thin Line Between Love And Hate: Why Affinity-Based Securities And Investment Fraud Constitutes A Hate Crime, Lisa M. Fairfax

GW Law Faculty Publications & Other Works

The Thin Line Between Love and Hate: Why Affinity-Based Securities and Investment Fraud Constitutes a Hate Crime, 36 U.C. Davis 1073 (2003) explores the parallels between the prototypical hate crime and affinity fraud - securities and investment fraud that targets identifiable religious, racial and ethnic groups - and asserts that those parallels justify treating affinity fraud as a hate crime.

The Culture Of Compliance: The Final Triumph Of Form Over Substance In Sexual Harassment Law, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

This Article is divided into three Parts. Part I briefly describes the continuing problem of sexual harassment and summarizes case law relating to employer liability for sexual harassment. It then describes the incentives the law creates for employers, victims, and harassers, and explains how each group responds to these incentives. Part II explores whether the preventative measures spurred by the legal regime serve Title VII's goal of deterring harassment and preventing harm. It first identifies individual and organizational factors that cause or correlate with the level of harassment in order to develop theoretical connections between employer preventative measures and the …

Feminist Law Journals And The Rankings Conundrum, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

No abstract provided.

The Culture Of Compliance: The Final Triumph Of Form Over Substance In Sexual Harassment Law, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

No abstract provided.

The Supreme Court's 2003 Employment Rulings: Surprising Gains For Workers And Women, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

The notoriously conservative Supreme Court returned some surprising victories for employees, women, and families during the October, 2003 term. Its most notable employment decision was in Nevada Department of Human Resources v. Hibbs, a case exploring whether the Family and Medical Leave Act, a federal statute mandating unpaid leave for employees who need it because of illness or care giving responsibilities, protects state government employees.

A second important case, Desert Palace, Inc. v. Costa, resolved a long-brewing split among federal appellate courts about the proof requirements in so-called “mixed motive” discrimination cases—those in which an adverse employment action …

We Do Not Hold The Earth In Trust, Jeffrey M. Gaba

Faculty Journal Articles and Book Chapters

No abstract provided.

Diminished Rationality, Diminished Responsibility, Stephen J. Morse

All Faculty Scholarship

No abstract provided.

Inevitable Mens Rea, Stephen J. Morse

All Faculty Scholarship

No abstract provided.