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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 ...


The Independent Director In Chinese Corporate Governance, Donald C. Clarke Jan 2006

The Independent Director In Chinese Corporate Governance, Donald C. Clarke

GW Law Faculty Publications & Other Works

Corporate governance (gongsi zhili) is a concept whose time has come in China, and the institution of the independent director is a major part of this concept. Policymakers in several countries such as the United Kingdom and Japan have turned to independent directors as an important element of legal and policy reform in the field of corporate governance. In August 2001, the China Securities Regulatory Commission (CSRC) issued its Guidance Opinion on the Establishment of an Independent Director System in Listed Companies. Covering all companies listed on Chinese stock exchanges (but not Chinese companies listed overseas), it constitutes the most ...


Family, Naomi R. Cahn Jan 2006

Family, Naomi R. Cahn

GW Law Faculty Publications & Other Works

Based on contemporary privacy law, this entry discusses two different aspects of family privacy: (1) the marital relationship and (2) the parent-child relationship. Marital privacy protects several aspects of married life. The first form of marital privacy protects the very decision of whom to marry. While state laws generally establish who may marry whom, the Supreme Court has established the quasi-fundamental nature of the right to marry. The second form of marital privacy involves the right to relational privacy. This constitutionally developed right to marital privacy protects the relationship from undue interference, particularly in the context of sexual decision-making.

There ...


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 ...


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 ...


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 ...


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 ...


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 ...


Overcoming The Fear Of Guns, The Fear Of Gun Control, And The Fear Of Cultural Politics: Constructing A Better Gun Debate, Donald Braman, Dan M. Kahan Jan 2006

Overcoming The Fear Of Guns, The Fear Of Gun Control, And The Fear Of Cultural Politics: Constructing A Better Gun Debate, Donald Braman, Dan M. Kahan

GW Law Faculty Publications & Other Works

The question of how strictly to regulate firearms has convulsed the national polity for the better part of four decades, and in this article Donald Braman and Dan M. Kahan conclude that the best way to engender productive debate is to investigate deeper than the statistics and address the competing American social attitudes on guns themselves: guns symbolizing honor, human mastery over nature, and individual self-sufficiency on the one hand, and guns creating the perpetuation of illicit social hierarchies, the elevation of force over reason, and the expression of collective indifference to the well-being of strangers on the other. Braman ...


Emerging Policy And Practice Issues (2005), Steven L. Schooner, Christopher R. Yukins Jan 2006

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 ...


Review Essay: 'Seeing Beyond The Limits Of International Law,' Jack L. Goldsmith And Eric A. Posner, 'The Limits Of International Law', Paul Schiff Berman Jan 2006

Review Essay: 'Seeing Beyond The Limits Of International Law,' Jack L. Goldsmith And Eric A. Posner, 'The Limits Of International Law', Paul Schiff Berman

GW Law Faculty Publications & Other Works

In 'The Limits of International Law,' Jack Goldsmith and Eric Posner use the simplifying assumptions of rational choice theory in an attempt to demonstrate that international law has no independent valence whatsoever. Rather, according to the authors, each state single-mindedly pursues its own rational interest and obeys international legal norms only to the extent that such norms serve those pre-existing interests. In this Review Essay, I argue that their vision of international law is deeply flawed. In particular, I take issue with the authors' assumption that states simply have pre-existing unitary interests that they then rationally pursue. First, I argue ...


Clogs In The Pipeline: The Mixed Data On Women Directors And Continued Barriers To Their Advancement, Lisa M. Fairfax Jan 2006

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 ...


The Jec's Estate Tax Report: Myths And Legends, Neil H. Buchanan Jan 2006

The Jec's Estate Tax Report: Myths And Legends, Neil H. Buchanan

GW Law Faculty Publications & Other Works

Advocates of estate tax repeal often assert that family-run businesses and farms are broken up when heirs are unable to pay the estate tax. This claim has never been proven, but a recent Joint Economic Committee report claims to demonstrate that it is true. I assess the arguments and evidence presented in the JEC report and find that there is nothing in it that proves that the estate tax breaks up family-run businesses and farms. In fact, the most credible source cited by the report suggests that families might have adequate liquid resources to pay the estate tax or even ...


Women In Post-Conflict Reconstruction: Dilemmas And Directions, Naomi R. Cahn Jan 2006

Women In Post-Conflict Reconstruction: Dilemmas And Directions, Naomi R. Cahn

GW Law Faculty Publications & Other Works

A critical issue for post conflict reconstruction is moving beyond criminal prosecutions that ensure accountability of perpetrators toward a system that also serves the needs of victims. When reconstruction includes disarmament, demobilization, and reintegration (DDR) and development services, these programs cannot be separated from perpetrator responsibility. The traditional criminal justice is perpetrator-centric. Alternative forms of justice have broadened this focus, recognizing that the legal system must respond to both victims and perpetrators. Transitional justice, which focuses on responding to past human rights violations, is critical to holding violators accountable for their acts.

In addition to criminal and civil accountability (rights-based ...


An Introduction To The United States Legal System: Cases And Comments, Alberto M. Benítez Jan 2006

An Introduction To The United States Legal System: Cases And Comments, Alberto M. Benítez

GW Law Faculty Publications & Other Works

This casebook introduces non-U.S trained lawyers, law students, and college undergraduates to the intricacies and nuances of our legal system. The world is becoming a smaller place and as a consequence of this globalization, the need for lawyers who are international in perspective and competence is increasing. Whatever one's opinion about globalization, there is no doubt that the U.S. legal system is at the forefront of these changes. This book attempts to compress three years of U.S. legal education into one casebook.

The following materials in this chapter, and throughout this book, will help non-United States ...


Punishment And Accountability: Understanding And Reforming Criminal Sanctions In America, Donald Braman Jan 2006

Punishment And Accountability: Understanding And Reforming Criminal Sanctions In America, Donald Braman

GW Law Faculty Publications & Other Works

The vast majority of Americans favor sanctions that require offenders to engage in responsible behavior - to work, pay restitution, or support dependents; to participate in a mandatory job training, literacy, or drug treatment program; or to meet some other prosocial obligation. While this intuitive preference crosses political and ideological divides, nothing in our classical theories of punishment properly accounts for or develops this intuition. In this Article, Donald Braman explores the popular preference for and the benefits that attach to these accountability-reinforcing sanctions. Reviewing existing and original ethnographic, interview, and survey data, he describes why these sanctions have such broad ...


Cultural Cognition And Public Policy, Donald Braman, Dan M. Kahan Jan 2006

Cultural Cognition And Public Policy, Donald Braman, Dan M. Kahan

GW Law Faculty Publications & Other Works

People disagree about the empirical dimensions of various public policy issues. It's not surprising that people have different beliefs about the deterrent effect of the death penalty, the impact of handgun ownership on crime, the significance of global warming, the public health consequences of promiscuous sex, etc. The mystery concerns the origins of such disagreement. Were either the indeterminacy of scientific evidence or the uneven dissemination of convincing data responsible, we would expect divergent beliefs on such issues to be distributed almost randomly across the population, and beliefs about seemingly unrelated questions (whether, say, the death penalty deters and ...


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 ...


Taiwan's Wto Membership And Its International Implications, Steve Charnovitz Jan 2006

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 ...


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 ...


Restoring (And Risking) Interest In International Law, Edward T. Swaine Jan 2006

Restoring (And Risking) Interest In International Law, Edward T. Swaine

GW Law Faculty Publications & Other Works

Jack Goldsmith of Harvard Law School and Eric Posner of the University of Chicago Law School articulate a comprehensive and engaging theory of state behaviors in their new book, “The Limits of International Law,” but with several internal flaws. Their book uses rational choice theory to explain how states act rationally to maximize their interests, and how, in doing so, states align themselves (sometimes) with international law. This book review argues that while Limits is a skilled and pioneering work that deserves to be taken seriously, it also suffers from tensions and over-generalizations that undermine its claims. As a result ...


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 ...


The Rehnquist Court's Noninterference With The Guardians Of National Security, Gregory E. Maggs Jan 2006

The Rehnquist Court's Noninterference With The Guardians Of National Security, Gregory E. Maggs

GW Law Faculty Publications & Other Works

Based on an examination of the Rehnquist Court's national security cases decided between 1986 and 2005, this essay makes three claims. The first claim is that the Rehnquist Court generally did not interfere with the governmental units that serve as the guardians of national security. The Rehnquist Court almost always rejected challenges to governmental actions when the official responsible justified the actions based on the need to protect the United States from external threats. The second claim is that the Rehnquist Court's hands-off approach generally had favorable consequences. It promoted national security by leaving the subject to the ...


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 ...


A Place At The Table: Creating Presence And Voice For Teenagers In Dependency Proceedings, Catherine J. Ross Jan 2006

A Place At The Table: Creating Presence And Voice For Teenagers In Dependency Proceedings, Catherine J. Ross

GW Law Faculty Publications & Other Works

This comment argues that lawyers for youth in foster care too often fail to include their clients in judicial hearings and that foster youth are entitled to appear at hearings where critical decisions affecting their lives will be made. The article reviews studies showing that foster children complain that they have little or no opportunity to be heard, and discusses the interplay between foster care and problems at school.


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 ...