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Articles 1 - 30 of 73
Full-Text Articles in Law
With Great Power Comes Great Responsibility: Proposed Principles Of Digital Due Process For Ict Companies, Dawn C. Nunziato
With Great Power Comes Great Responsibility: Proposed Principles Of Digital Due Process For Ict Companies, Dawn C. Nunziato
GW Law Faculty Publications & Other Works
Information and Communications Technology (ICT) companies like Google/YouTube, Facebook, Yahoo, and Twitter are in control of an enormous amount of expression on the Internet. More so than any individual country, these companies are responsible for making decisions with regard to a vast amount of Internet expression. They host billions of pages of Internet content, while responding on a daily basis to countless requests from countries and individuals around the world to take down content that is deemed objectionable or illegal. These powerful ICT companies have become the de facto sovereigns of cyberspace, with the power to balance freedom of expression …
International Judicial Bodies For Resolving Disputes Between States, Sean D. Murphy
International Judicial Bodies For Resolving Disputes Between States, Sean D. Murphy
GW Law Faculty Publications & Other Works
This chapter of the forthcoming Oxford Handbook on International Adjudication assesses those international judicial bodies that are established principally to resolve disputes between States, notably the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS) and the World Trade Organization (WTO) Appellate Body. Unlike courts oriented toward regional economic integration or regional human rights, such as the European Court of Justice or the Inter-American Court of Human Rights, these courts and tribunals primarily focus on resolving disputes between States. Contentious cases before these bodies, for the most part, do not involve institutional organs or …
Incentive Effects From Different Approaches To Holdup Mitigation Surrounding Patent Remedies And Standard-Setting Organizations, F. Scott Kieff, Anne Layne-Farrar
Incentive Effects From Different Approaches To Holdup Mitigation Surrounding Patent Remedies And Standard-Setting Organizations, F. Scott Kieff, Anne Layne-Farrar
GW Law Faculty Publications & Other Works
Debates about patent policy often focus on the potential for the threat of a court-imposed remedy for patent infringement to cause manufacturing entities and others to suffer patent holdup, especially when standardized industries are involved. This article uses lessons from the broader economics and political science literatures on holdup to explore various approaches to setting remedies for patent infringement—namely injunctions and money damages in the form of lost profits or reasonable royalties—with an eye towards the nature and extent of various forms of holdup they each might generate. In so doing, the article contrasts various narrower sub-categories of the broad …
How Legal Pluralism Is And Is Not Distinct From Liberalism: A Response To Dennis Patterson And Alexis Galán, Paul Schiff Berman
How Legal Pluralism Is And Is Not Distinct From Liberalism: A Response To Dennis Patterson And Alexis Galán, Paul Schiff Berman
GW Law Faculty Publications & Other Works
Alexis Galan and Dennis Patterson largely accept the descriptive account of plural authority described in my book, Global Legal Pluralism: A Jurisprudence of Law Beyond Borders. However, they are concerned that my normative argument for procedural mechanisms, institutional designs, and discursive practices for managing pluralism is simply liberalism in another guise and not pluralist enough. Given that pluralists are usually criticized from the opposite side for an approach that results in too much fragmentation and destabilization, I am in some sense happy to welcome this new critique. After all, a position cannot easily be simultaneously too radical and not …
Political Law, Spencer A. Overton
Political Law, Spencer A. Overton
GW Law Faculty Publications & Other Works
Traditional “election law” or “the law of democracy” concentrated largely on constitutional analysis by judicial actors. That narrow focus, however, distorted scholars’ understanding of the problems confronting democracy and possible solutions. This Foreword proposes that the field should be understood more properly as “political law,” which includes the study of the activities not only of judges but also of policymakers, regulators, and practitioners. The Foreword also examines the concept of “political law community”—a concentration of scholars, judges, policymakers, regulators, and practitioners interested in the subject that can give rise to innovation and creativity. Finally, the Foreword reviews the George Washington …
Natural Gas Fracking Addresses All Of Our Major Problems, Richard J. Pierce Jr
Natural Gas Fracking Addresses All Of Our Major Problems, Richard J. Pierce Jr
GW Law Faculty Publications & Other Works
Politicians and regulators all over the world are debating the merits and demerits of horizontal drilling and fracturing of shale formations to produce natural gas (fracking) and the many legal issues that are raised by fracking. Professor Pierce provides context for those debates by describing the economic, environmental, and geopolitical advantages of fracking.
In The Civic Republic: Crime, The Inner City, And The Democracy Of Arms - Being A Disquisition On The Revival Of The Militia At Large, Robert J. Cottrol, Raymond T. Diamond
In The Civic Republic: Crime, The Inner City, And The Democracy Of Arms - Being A Disquisition On The Revival Of The Militia At Large, Robert J. Cottrol, Raymond T. Diamond
GW Law Faculty Publications & Other Works
This Article examines the modern utility of the Second Amendment's guarantee of "the right to keep and bear arms" in light of the phenomenon of modern crime, particularly black-on-black violence in urban America. Although many advocates of gun control have argued that crime in modern cities is a reason for modifying or severely truncating the right to have arms, the Authors argue that the right to have arms and the Second Amendment's notion of a universal militia can be the basis of a new partnership between police and citizens in urban America. This new partnership can, if properly developed, be …
Hostess And The Search For Workplace Dignity, Michael Selmi
Hostess And The Search For Workplace Dignity, Michael Selmi
GW Law Faculty Publications & Other Works
This symposium essay uses the recent bankruptcy filing by Hostess, which was prompted by the refusal of workers to take additional pay cuts to keep the company afloat, to explore the issue of workplace dignity. The Hostess bakery workers, I suggest, took a stand that proclaimed that employers could not assume that workers would do anything to keep their jobs, that some jobs were not worth having or keeping, particularly when the company had repeatedly failed to provide required pension payments to its workers. I also discuss the various ways in which consumers can seek to influence employment policies, though …
The Use Of Alternative Dispute Resolution Techniques To Resolve Public Sector Bargaining Disputes, Charles B. Craver
The Use Of Alternative Dispute Resolution Techniques To Resolve Public Sector Bargaining Disputes, Charles B. Craver
GW Law Faculty Publications & Other Works
Labor organizations and employers have used various dispute resolution techniques to assist them with contract negotiations and contractual grievances. They have used negotiation, mediation, and arbitration since the 1800s. When the ADR movement was developed for conventional legal disputes, many of the techniques adopted were derived from the industrial relations movement. As states enacted public sector bargaining laws granting representational rights to state and local government employees, the parties had to determine how to resolve controversies over the terms to be included in new contracts and over grievances arising under existing accords. Most states refused to allow government personnel to …
Deferred Prosecutions And Corporate Governance: An Integrated Approach To Investigation And Reform, Lawrence A. Cunningham
Deferred Prosecutions And Corporate Governance: An Integrated Approach To Investigation And Reform, Lawrence A. Cunningham
GW Law Faculty Publications & Other Works
When evaluating how to proceed against a corporate investigative target, law enforcement authorities often ignore the target’s governance arrangements, while subsequently negotiating or imposing governance requirements, especially in deferred prosecution agreements. Ignoring governance structures and processes amid investigation can be hazardous and implementing improvised reforms afterwards may have severe unintended consequences—particularly when prescribing standardized governance devices. Drawing, in part, on new lessons from three prominent cases—Arthur Andersen, AIG and Bristol-Myers Squibb—this Article criticizes prevailing discord and urges prosecutors to contemplate corporate governance at the outset and to articulate rationales for prescribed changes. Integrating the role of corporate governance into prosecutions …
Competition Agencies With Complex Policy Portfolios: Divide Or Conquer?, William E. Kovacic, David A. Hyman
Competition Agencies With Complex Policy Portfolios: Divide Or Conquer?, William E. Kovacic, David A. Hyman
GW Law Faculty Publications & Other Works
Antitrust law has been adopted by 120 jurisdictions worldwide. In more than half of these jurisdictions, the agency charged with enforcing antitrust law also has other responsibilities. The assignment of multiple regulatory tasks can affect the performance of a competition agency in complex and subtle ways. We present a framework for analyzing the consequences of creating public bodies with complex policy portfolios. Using examples from across the administrative state, we analyze the forces that shape the content of an agency’s policy duties, and how the portfolio of assigned duties affects the way an agency approaches its assigned tasks, and its …
The Expulsion Of Aliens And Other Topics: The Sixty-Fourth Session Of The International Law Commission, Sean D. Murphy
The Expulsion Of Aliens And Other Topics: The Sixty-Fourth Session Of The International Law Commission, Sean D. Murphy
GW Law Faculty Publications & Other Works
This essay analyzes the work of the International Law Commission during its sixty-fourth session in Geneva from May 7 to June 1, and from July 2 to August 3, 2012. The session marked the first year of a new quinquennium (2012-2016), with the Commission having completed its work during the prior quinquennium on four major topics: transboundary aquifers; reservations to treaties; responsibility of international organizations; and effects of armed conflict on treaties. The central topic under discussion during the sixty-fourth session concerned the expulsion of aliens, which led to the adoption on first reading of thirty-two articles, together with commentaries, …
The 'Federal Law Of Marriage': Deference, Deviation, And Doma, W. Burlette Carter
The 'Federal Law Of Marriage': Deference, Deviation, And Doma, W. Burlette Carter
GW Law Faculty Publications & Other Works
The article discusses the history of federal inroads into marriage by examining federal interventions during the nineteenth and early twentieth century, argues that, in some cases but not all, marriages' federal benefits are indeed intended to support natural procreation, argues that DOMA's underlying statutes are key to ascertaining the purposes of federal marriage benefits and burdens, distinguishes sexual orientation discrimination from race discrimination and offers a proposal for dealing with equal protection challenges to denials of marriage rights to same sex couples. The proposal, which depends upon dual standards of review, recognizes the historical denial of family rights to same …
The Gender/Class Divide: Reproduction, Privilege And The Workplace, Naomi R. Cahn, June Carbone
The Gender/Class Divide: Reproduction, Privilege And The Workplace, Naomi R. Cahn, June Carbone
GW Law Faculty Publications & Other Works
This article evaluates the relationship between workplace equality and the technology of egg freezing, which allows women to “bank” their eggs until they are ready to use them. As the workplace increasingly rewards education and career investment, middle class women postpone family formation until they have attained a measure of financial security and the maturity to balance dual earner arrangements. Yet, as they age, their reproductive potential diminishes dramatically. By contrast, women who do not complete college (and aren’t even thinking about graduate school) bear children at different times in their life cycles, with less leverage with employers, and different …
Letting Nature Work In The Pacific Northwest: A Manual For Protecting Ecosystem Services Under Existing Law, Robert L. Glicksman, Robert W. Adler, Daniel J. Rohlf, Robert R.M Verchick, Yee Huang
Letting Nature Work In The Pacific Northwest: A Manual For Protecting Ecosystem Services Under Existing Law, Robert L. Glicksman, Robert W. Adler, Daniel J. Rohlf, Robert R.M Verchick, Yee Huang
GW Law Faculty Publications & Other Works
In the decades since Congress and state legislatures passed most of the nation's most significant environmental laws, our knowledge about ecosystems has increased dramatically. As ecologists learn more about the complex and dynamic interactions that produce valuable ecosystem services, decisionmakers and advocates should adopt an ecosystem services approach to implementing laws that affect the environment. An ecosystem services approach integrates advances in ecology with the law. It fosters creative thinking about how to restructure laws and regulatory programs to mimic the connectedness of ecosystem functions. The approach requires performance-based evaluations to measure success or failure of management decisions, and it …
The Appropriate Role Of Costs In Environmental Regulation, Richard J. Pierce Jr
The Appropriate Role Of Costs In Environmental Regulation, Richard J. Pierce Jr
GW Law Faculty Publications & Other Works
In Whitman v. American Trucking Association, 121 S. Ct. 903 (2001), the Court held that EPA cannot consider costs in any way in setting air quality standards. The Court's opinion raises many more questions than it answers. This article discusses three of those questions: (1) which of three competing canons of constructions should courts use when they interpret ambiguous provisions in regulatory statutes; (2) how can an agency make and defend its line-drawing decisions when it is prohibited from considering costs in any way: and, (3) how can courts review an agency's decisions when the agency is prohibited from considering …
Privacy Self-Management And The Consent Dilemma, Daniel J. Solove
Privacy Self-Management And The Consent Dilemma, Daniel J. Solove
GW Law Faculty Publications & Other Works
The current regulatory approach for protecting privacy involves what I refer to as “privacy self-management” — the law provides people with a set of rights to enable them to decide how to weigh the costs and benefits of the collection, use, or disclosure of their information. People’s consent legitimizes nearly any form of collection, use, and disclosure of personal data.
Although privacy self-management is certainly a necessary component of any regulatory regime, I contend in this Article that it is being asked to do work beyond its capabilities. Privacy self-management does not provide meaningful control. Empirical and social science research …
Hipaa Turns 10: Analyzing The Past, Present, And Future Impact, Daniel J. Solove
Hipaa Turns 10: Analyzing The Past, Present, And Future Impact, Daniel J. Solove
GW Law Faculty Publications & Other Works
This essay, written in a journalistic style, examines HIPAA over the past decade. The essay discusses the creation of HIPAA, the evolution of HHS enforcement, the impact of the HITECH Act, and the overall influence and effect of HIPAA on healthcare providers and organizations using medical data. Professor Solove combines analysis with interviews of key regulators and practitioners.
Deconstructing Fragmentation: Koskenniemi's 2006 Ilc Project, Sean D. Murphy
Deconstructing Fragmentation: Koskenniemi's 2006 Ilc Project, Sean D. Murphy
GW Law Faculty Publications & Other Works
This essay – a contribution to a workshop organized to assess Martti Koskenniemi’s scholarship – focuses principally on Koskenniemi’s work as a member of the International Law Commission (ILC) from 2002 to 2006, and in particular his chairmanship of an ILC study group. Unlike Koskenniemi’s scholarship, which is solely his own or perhaps his in conjunction with a co-author, the ILC study group report on Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (Report), and the 42 associated conclusions, were a group effort, though it is well-understood that Koskenniemi was the driving force in …
The Congressional War On Contractors, Jessica Tillipman
The Congressional War On Contractors, Jessica Tillipman
GW Law Faculty Publications & Other Works
The U.S. Suspension & Debarment regime is designed to ensure that the federal government does business only with “responsible” partners. One of the most fundamentally (and frequently) misunderstood aspects of the FAR 9.4 suspension & debarment system is that these tools are only to be used for the purpose of protecting the Government, not to punish contractors for their past misconduct. Unfortunately, recent congressional initiatives demonstrate many legislators’ desire to transform debarment into a tool of punishment by banishing contractors from the procurement system “with little consideration of whether such action is needed or fair."
Instead of focusing on the …
Cross-Debarment: A Stakeholder Analysis, Christopher R. Yukins
Cross-Debarment: A Stakeholder Analysis, Christopher R. Yukins
GW Law Faculty Publications & Other Works
As more nations and organizations establish debarment (or "blacklisting") systems, to exclude corrupt or incompetent firms and individuals from contracting, a serious question has arisen: if a contractor is debarred, should other jurisdictions automatically exclude that contractor in a "cross-debarment"? This paper, which grew out of an October 2012 symposium at the World Bank, discusses the advantages and disadvantages of cross-debarment, from the standpoint of various stakeholders. The article concludes that some stakeholders (such as debarring officials themselves) might prefer that there be no automatic cross-debarment, so that government officials retain discretion -- and so leverage -- to persuade contractors …
The Rise Of Directed Verdict: Jury Power In Civil Cases Before The Federal Rules Of 1938, Renée Lettow Lerner
The Rise Of Directed Verdict: Jury Power In Civil Cases Before The Federal Rules Of 1938, Renée Lettow Lerner
GW Law Faculty Publications & Other Works
Jury practice in the state and federal courts evolved dramatically in the nineteenth and early twentieth century. Around the time of the ratification of the Bill of Rights in 1791, important legal thinkers praised the civil jury as a bulwark against judicial tyranny. By the advent of the Federal Rules of Civil Procedure in 1938, many commentators regarded the civil jury as an antiquated nuisance. Diminishment of the jury and open exercise of judicial power, encouraged in the Federal Rules by procedures such as summary judgment, would not have been possible without earlier changes in jury practice. Two major changes …
Rethinking The Legal Foundations Of The European Constitutional Order: The Lessons Of The New Historical Research, Francesca Bignami
Rethinking The Legal Foundations Of The European Constitutional Order: The Lessons Of The New Historical Research, Francesca Bignami
GW Law Faculty Publications & Other Works
This essay examines the implications of new historical research on the origins of EU law for legal theory. Based on a review of the recent work of Morten Rasmussen, Bill Davies, Anne Boerger-de Smedt, Karin van Leeuwen, and Alexandre Bernier, the essay demonstrates how this historical research improves our understanding of two important themes in comparative law—comparative legal traditions and legal transplants. By examining the legal actors in different jurisdictions responsible for building an area of public law—the economic law of the fledgling European Communities—the new historical research contributes to the legal traditions literature on legal elites, which has traditionally …
Jurisgenerative Constitutionalism: Procedural Principles For Managing Global Legal Pluralism, Paul Schiff Berman
Jurisgenerative Constitutionalism: Procedural Principles For Managing Global Legal Pluralism, Paul Schiff Berman
GW Law Faculty Publications & Other Works
Global Legal Pluralism recognizes the inevitability (and sometimes even the desirability) of multiple legal and quasi-legal systems purporting to regulate the same act or actor. However, the resulting pluralism—just as inevitably—creates conflicts among norms that are potentially intractable. Thus, legal systems must address how best to respond to the realities of pluralism. This inquiry has constitutional dimensions because it goes to the constitutive character of communities and their relationships with other communities, be they international, transnational, national, subnational, or epistemic.
One response to pluralism is jurispathic: “kill off” all competing laws by declaring that one set of norms—and only one—shall …
Rethinking The World Bank’S Sanctions System, Christopher R. Yukins
Rethinking The World Bank’S Sanctions System, Christopher R. Yukins
GW Law Faculty Publications & Other Works
The World Bank is reviewing its system for suspending and debarring contractors (known formally as the World Bank sanctions system). The system is used to suspend and debar contractors that have engaged in fraud or corruption (and other enumerated bad acts) related to Bank-financed projects. After reviewing the sanctions process, and identifying what appear to be the Bank’s current goals in its sanctions system (stemming reputational and fiduciary risks), the article recommends that the World Bank defer finalizing any reforms until it concludes its assessment of first principles, and has at hand all the data necessary to assess the sanctions …
Voting Rights Disclosure, Spencer A. Overton
Voting Rights Disclosure, Spencer A. Overton
GW Law Faculty Publications & Other Works
In "Beyond the Discrimination Model On Voting," 127 Harvard Law Review 95 (2013), Professor Samuel Issacharoff proposes that Congress turn away from what he considers the outdated and “limited race-driven use” of the Fifteenth Amendment and instead protect all types of voters from partisan manipulation using a “non-civil rights” Elections Clause approach. Specifically, Issacharoff proposes that jurisdictions disclose changes to voting rules for federal elections. This Essay argues that Issacharoff’s approach is incomplete. Contemporary discrimination exists and warrants attention — particularly where fast-growing minority populations threaten the status quo. This discrimination differs from simple partisan manipulation, as the discrimination reduces …
Grades Matter; Legal Writing Grades Matter Most, Jessica L. Clark
Grades Matter; Legal Writing Grades Matter Most, Jessica L. Clark
GW Law Faculty Publications & Other Works
In this study of 380 students in a law school’s 2011 graduating class, the data demonstrates a strong correlation between high performance in legal writing courses and high performance in non-legal writing courses. There is also a strong correlation at the opposite end: low performers in legal writing courses are low performers in non-legal writing courses. This article provides the hard data to support the significance of writing skills by demonstrating the correlation between performance in legal writing courses and performance in other law school courses by comparing grades and Grade Point Averages (GPAs). Of course grades and GPA data …
§ 5:10 Potential Constitutional Limitations On Claims Of Privilege — The Constitutional Right To Produce Evidence, Laird Kirkpatrick, Christopher B. Mueller
§ 5:10 Potential Constitutional Limitations On Claims Of Privilege — The Constitutional Right To Produce Evidence, Laird Kirkpatrick, Christopher B. Mueller
GW Law Faculty Publications & Other Works
Generally under the law a litigant is entitled to every person's evidence in order to pursue a claim or defense. A primary exception to this rule is where the evidence is privileged and hence protected from compelled disclosure. However, even privileged evidence can be compelled to be disclosed in some circumstances, such as where it is critical exculpatory evidence needed by a criminal defendant. This Section discusses the conflict between the law of privilege and a criminal defendant's constitutional right to produce evidence in his defense.
The World Is Not Flat: Conference Planning And Presentation As Part Of A Multidimensional Understanding Of Scholarship, Iselin Magdalene Gambert, Karen Thornton, Amy R. Stein
The World Is Not Flat: Conference Planning And Presentation As Part Of A Multidimensional Understanding Of Scholarship, Iselin Magdalene Gambert, Karen Thornton, Amy R. Stein
GW Law Faculty Publications & Other Works
Scholarship. For many academics, the word is filled with a combination of excitement, anticipation, obligation, and dread. Academics are expected to reliably produce scholarship, much like sculptors are expected to produce art, baristas cappuccinos, and stockbrokers profits. While “scholarship” has perhaps traditionally been viewed as strictly words on a page, some scholars view it to be a multidimensional enterprise, something that encompasses the many aspects of the life of a scholar. The idea of scholarship as comprising more than just the generation of a tangible written product is taken up in Maksymilian Del Mar’s Living Legal Scholarship, which asserts “five …
Child Testimony And The Right To Present A Defense, Stephen A. Saltzburg
Child Testimony And The Right To Present A Defense, Stephen A. Saltzburg
GW Law Faculty Publications & Other Works
This article discusses the importance of a child's testimony in a criminal prosecution by examining Harris v. Thompson, 698 F.3d 609 (7th Cir. 2012). In this case, a child's testimony was excluded, violating the defendant's right to present a complete defense.