Law Commons^™

International & Comparative Law Perspectives: Fall 2010, Int'l & Comp. Law Program

International & Comparative Law Perspectives

No abstract provided.

Intellectual Property Perspectives: Fall 2010, Ip Law Program

Intellectual Property Perspectives

No abstract provided.

Environmental Perspectives: Fall 2010, Environmental Law Program

Environmental and Energy Law Perspectives

No abstract provided.

A Legal Miscellanea: Volume 7, Number 2, Jacob Burns Law Library George Washington University Law School

A Legal Miscellanea: Archives (Print)

A Newsletter for the Friends of the Jacob Burns Law Library, highlighting the Library's collections, services, recent acquisitions, events and exhibits.

A Legal Miscellanea: Volume 7, Number 1, Jacob Burns Law Library George Washington University Law School

A Legal Miscellanea: Archives (Print)

A Newsletter for the Friends of the Jacob Burns Law Library, highlighting the Library's collections, services, recent acquisitions, events and exhibits.

Intellectual Property Perspectives: Spring 2010, Ip Law Program

Intellectual Property Perspectives

No abstract provided.

International & Comparative Law Perspectives: Spring 2010, Int'l & Comp. Law Program

International & Comparative Law Perspectives

No abstract provided.

Clinical Perspectives: Spring 2010, The Jacob Burns Community Legal Clinics

Clinical Perspectives

No abstract provided.

Environmental Perspectives: Spring 2010, Environmental Law Program

Environmental and Energy Law Perspectives

No abstract provided.

Intergenerational Equity, Dinah L. Shelton

GW Law Faculty Publications & Other Works

This essay analyzes the legal meaning of “intergenerational equity” and evaluates the practical implementation of the concept. The essay begins by considering the meaning of the two terms in the phrase: “intergenerational” and “equity.” It then looks at the various rationales given for concern with this topic and how they link to the topic of solidarity, followed by an overview of some of the main subject areas in which the issue of intergenerational equity arises. It proceeds to assess the status of intergenerational equity in international law and to identify various principles associated with the concept. Finally, it turns to …

The Past, Present, And Future Of Energy Regulation, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

This essay is a contribution to a symposium at University of Utah. It begins with a summary of the history of energy regulation from 1960 until 2011. It then makes three arguments. First, the essay argues that the US should abandon pursuit of the goal of energy independence and pursue exclusively the goal of global warming mitigation. Second, it argues that the US should replace its present reliance on expensive and ineffective subsidies and mandates to mitigate global warming with a single mechanism to attain that goal – a large carbon tax. Third, the essay recognizes that, while a carbon …

Military Lawyers, Private Contractors, And The Problem Of International Law Compliance, Laura T. Dickinson

GW Law Faculty Publications & Other Works

It is by now no secret that the United States government depends on private contractors to guard military facilities, escort convoys, conduct interrogations, train soldiers, and provide logistical support. And though private military contractors have been implicated in multiple instances of human rights violations, corruption, and waste, they are likely to become a permanent part of the military landscape. The key question, therefore, is not, should there be contractors but rather, how can we make it more likely that contractors will respect core human rights norms? And on this question, it will not be sufficient merely to focus on the …

Returning Home: Women In Post-Conflict Societies, Naomi R. Cahn, Dina Francesca Haynes, Fionnuala D. Ni Aolain

GW Law Faculty Publications & Other Works

This paper explores the situation of women returning to their homes and communities after their countries have experienced major conflicts. In that context, it assesses the range of barriers and challenges that women face and offers some thinking to addresses and remedy these complex issues. As countries face the transition process, they can begin to measure the conflict’s impact on the population and the civil infrastructure. Not only have people been displaced from their homes, but, typically, health clinics, schools, roads, businesses, and markets have deteriorated substantially. While the focus is on humanitarian aid in the midst of and during …

Towards A Jurisprudence Of Hybridity, Paul Schiff Berman

GW Law Faculty Publications & Other Works

Debates about non-state normative communities often devolve into clashes between two polarized positions. On the one hand, we see the desire to eradicate difference through forced obeisance to a single overarching state norm. On the other, we see claims of complete autonomy for non-state lawmaking, as if such non-state communities could plausibly exist in isolation from the communities that both surround and intersect them.

Neither of these positions takes seriously the importance of engagement and dialogue across difference. Navigating difference doesn’t require either assimilation or separation; it requires negotiation. Legal pluralists have long charted this process of negotiation, noting, for …

Defining The Word ‘Maintain’; Context Counts, Jack H. Friedenthal

GW Law Faculty Publications & Other Works

The Supreme Court in Shady Grove Orthopedic Associates v. Allstate Ins. Co., a diversity-of-citizenship case, held that a state statute prohibiting “maintenance” of a class action to enforce a penalty clashed with the terms of Federal Rule of Civil Procedure 23 that authorizes “maintenance” of a class suits meeting the requirements of the rule. Writing for himself and three others Justices, Justice Scalia refused to consider the history of the state provision and merely declared that its “clear text” established the conflict. He failed to consider the fact that the word “maintain” is ambiguous and that there is reason to …

Book Review Of Alan Boyle And Christine Chinkin, The Making Of International Law, Oxford University Press, 2007, Sean D. Murphy

GW Law Faculty Publications & Other Works

Abstract:
An Extraordinary Range of International "Rules" or "Norms" are Created Today Through Mechanisms that Do Not Fit Easily into the Traditional Sources of International Law. In the Making of International Law, Professors Alan Boyle of the University of Edinburgh and Christine Chinkin of the London School of Economics Set Their Sights on Providing a Broad Account of Such Law-Making, Looking Across Different Areas of Organizational Behavior, Both Governmental and Non-Governmental. Although this Volume Has Some Shortcomings, it is an Excellent Starting Point for Those Interested in an Engaging and Informed Survey of Various Ways in Which International Law is …

The Political Economy Of Youngstown, Edward T. Swaine

GW Law Faculty Publications & Other Works

The time is ripe for a non-doctrinal assessment of Justice Jackson’s famous three-category framework for challenges to presidential action, elaborated in Youngstown Sheet & Tube Co. v. Sawyer (also known as the Steel Seizure Case). Recent national security controversies have given the Youngstown framework a whole new lease on life, and its relevance for courts, Congress, and executive branch officials has never been higher. During the same period, empirical and analytical studies of presidential policymaking have advanced beyond personality-driven accounts of particular administrations. Together, these developments offer a terrific opportunity to assess how well the Youngstown framework fulfills its objective …

Suing The Government As A 'Joint Employer' - Evolving Pathologies Of The Blended Workforce, Steven L. Schooner, Collin D. Swan

GW Law Faculty Publications & Other Works

As the 'blended workforce' - a realm in which contractors work alongside, and often are indistinguishable from, their Government counterparts - becomes more commonplace, the distinction between civil servants, members of the military and contractor employees increasingly blurs. One intriguing (and, apparently, accelerating), yet little-known trend is that contractor employees are more frequently suing the Government, alleging employment discrimination on the part of Government managers, supervisors or even coworkers. This short piece discusses the evolving 'joint employer' liability doctrine. It suggests that The federal courts' and the EEOC's willingness to define federal agencies as de facto employers of contractor employees …

Fundamentalist Challenges To Core Democratic Values: Exit And Homeschooling, Catherine J. Ross

GW Law Faculty Publications & Other Works

This article discusses the trend in and legal recognition of homeschooling throughout the United States. I focus on Christian parents who argue that homeschooling is a means of avoiding exposure to issues about which they do not want their children to learn. I offer two proposals in this article: first, that state governments should impose and adjust curricular requirements for homeschoolers so that they must expose their children to mainstream norms about diversity and social inclusion and second, that when parents who share legal custody of their children disagree about where to educate them, courts should apply a rebuttable presumption …

A Core Of Agreement, Donald Braman, Dan M. Kahan, David Hoffman

GW Law Faculty Publications & Other Works

In this short comment, we respond to papers by Robinson, Kurzban, and Jones (RKJ) and by Darley, who replied to our paper, Punishment Naturalism. We align ourselves wholeheartedly with Darley’s argument that intuitions of criminal wrongdoing, while mediated by cognitive mechanisms that are largely universal, consist in evaluations that vary significantly across cultural groups. RKJ defend their finding of “universal” intuitions of “core” of criminal wrongdoing. They acknowledge, however, that their method for identifying the core excludes by design factors that predictably generate cultural variance in what behavior counts as murder, rape, theft and other “core” offenses. On this basis, …

Transnational Mass Claim Processes (Tmcps) In International Law And Practice, Arturo J. Carrillo, Jason Scott Palmer

GW Law Faculty Publications & Other Works

This article recognizes a growing overlap in the literature between international mass claims processes (“IMCPS”) and transitional justice claims processes (“TJCPs”), i.e. domestic reparations programs adopted by successor governments in the wake of mass atrocity. This convergence is reflected in a number of recent publications in both fields that promote the comparative analysis of IMCPs and TJCPs, which in turn, leads to the conclusion that the two processes share a number of analogous characteristics. Commentators tend to view these ostensibly shared traits as a natural source of “best practices” or “lessons” transferable between mass claims procedures in the international and …

Bespoke Custom, Edward T. Swaine

GW Law Faculty Publications & Other Works

Curtis Bradley and Mitu Gulati’s stimulating article, “Withdrawing from International Custom,” argues for a view of customary international law (CIL) in which unilateral exit rights may be revitalized. This response suggests that Bradley and Gulati’s understanding of the intellectual history of CIL is contestable and that, they tend both to understate the novelty of their approach and overstate the rigidity of the views to which they react. Their tentativeness in endorsing exit options makes it difficult to assess the normative implications of their position, but their argument notably lacks a comprehensive consideration of alternative lawmaking forms.

When Statutory Regimes Collide:Will Wisconsin Right To Life And Citizens United Invalidate Federal Tax Regulation Of Campaign Activity?, Miriam Galston

GW Law Faculty Publications & Other Works

In Federal Election Commission v. Wisconsin Right to Life (2007) and Citizens United v. Federal Elections Commission (2010), the United States Supreme Court dramatically reduced the ability of Congress to regulate campaign finance activities of corporations and others active in elections. Many of the same activities are still subject to restrictions by the Internal Revenue Code, which regulates the type and amount of political campaign activities that certain nonprofits exempt under federal tax law can engage in.

In the wake of the campaign finance decisions, the constitutionality of the tax law’s restrictions on campaign activity is now being challenged in …

The Permanent And Presidential Transition Models Of Political Party Policy Leadership, David Fontana

GW Law Faculty Publications & Other Works

This Article examines the uniqueness of the transition between presidential transitions in the United States. The phenomenon of the transition between elected governments – a time where one political leader or party has already been elected but has not yet taken official power – is not unknown to the rest of the world. What makes the American system unique, then, is not the existence of the transition period, but its significance. In the major constitutional regimes elsewhere, political parties more clearly identify their policy leaders even when not in power, and thus have a much smaller number of personnel decisions …

Regulatory Blowout: How Regulatory Failures Made The Bp Disaster Possible, And How The System Can Be Fixed To Avoid A Recurrence, Robert L. Glicksman

GW Law Faculty Publications & Other Works

The BP oil spill in the Gulf of Mexico is destined to take its place as one of the greatest environmental disasters in the history of the United States, or for that matter, of the entire planet. Like so many other disasters on that list, it was entirely preventable.

BP must shoulder its share of the blame, of course. Similarly, the Minerals Management Service (MMS) – since reorganized and rebranded – has come under much deserved criticism for its failure to rein in BP’s avaricious approach to drilling even where it was unable to respond to a worst-case scenario in …

Climate Change Adaptation: A Collective Action Perspective On Federalism Considerations, Robert L. Glicksman, Richard E. Levy

GW Law Faculty Publications & Other Works

The buildup of greenhouse gases in the atmosphere and the likely growth in future emissions due to increased energy consumption in developing nations have convinced many scientists and policymakers of the need to develop policies that will allow adaptation to minimize the adverse effects of climate change. Climate change adaptation is designed to increase the resilience of natural and human ecosystems to the threats posed by a changing environment. Although an extensive literature concerning the federalism implications of climate change mitigation policy has developed, less has been written about the federalism issues arising from climate change adaptation policy. This article …

Anatomy Of Industry Resistance To Climate Change: A Familiar Litany, Robert L. Glicksman

GW Law Faculty Publications & Other Works

The industries that generate environmental risks in the United States have long been hostile to regulatory programs that increase their costs of operation and reduce their profits. While industry may have been unprepared for, and thus poorly organized to resist, the first wave of federal environmental legislation enacted during the “environmental decade” of the 1970s, it quickly marshaled its forces. Regulated or potentially regulated entities, their trade associations, and their lobbyists began a concerted effort to defeat, delay, and weaken environmental regulation.

This book chapter describes the process by which regulatory opponents successfully relied on free market ideology to couch …

Competition Policy And The Application Of Section 5 Of The Federal Trade Commission Act, William E. Kovacic, Mark Winerman

GW Law Faculty Publications & Other Works

Since the 1970’s, U.S. courts generally have narrowed the range of single-firm behavior subject to condemnation as monopolization under the Sherman Act. This article examines the possibility of applying principles from Section 5 of the Federal Trade Commission Act to address apparent instances of anticompetitive conduct that go beyond the reach of other federal antitrust statutes. The FTC, through Section 5, offers a superior platform for elaborating competition policy, has the tools to perform empirical and policy work that can inform the design of legal rules, and is a specialized tribunal whose Section 5 decisions have no collateral effect in …

Virtual Shareholder Meetings Reconsidered, Lisa M. Fairfax

GW Law Faculty Publications & Other Works

In 2000 Delaware enacted a statute enabling corporations to host meetings solely by electronic means of communication rather than in a physical location. Since that time, several states have followed Delaware's lead, and the American Bar Association has proposed changing the Model Business Corporation Act to provide for some form of virtual shareholder meetings. Many states believed that such meetings would prove to be an important device for shareholders who desire to increase their voice within the corporation. Instead, very few companies have taken advantage of the ability to host such meetings. This Article provides some data on state statutes …

Failing The Bay: Clean Water Act Enforcement In Maryland Falling Short, Robert L. Glicksman, Yee Huang

GW Law Faculty Publications & Other Works

The Maryland Department of the Environment (MDE) is responsible for enforcing Clean Water Act (CWA) requirements in Maryland. This report evaluates MDE's enforcement of the CWA and draws three significant conclusions: (1) MDE is drastically underfunded; (2) MDE has not designed its enforcement program to effectively deter dischargers from violating CWA and state water quality laws; and (3) MDE fails to take advantage of citizen suits to supplement its own enforcement actions and to maximize its limited resources.

Between 2000 and 2009, MDE's enforcement budget declined in real terms by 25 percent, which coincides with a doubling of the number …