Law Commons^™

Standing For The Public: A Lost History, Elizabeth Magill

All Faculty Scholarship

This article recaptures a now-anachronistic approach to standing law that the Supreme Court followed in the middle decades of the 20th Century and explains how and when it died. It then speculates about why the federal courts retreated from the doctrine when they did. The now-anachronistic view of the permissible scope of standing, which is called here 'standing for the public,' permitted Congress to authorize parties who had no cognizable legal rights to challenge government action, in order to, as the Supreme Court itself said 'represent the public' and bring the government’s legal errors before the courts. Ironically, the federal …

A Constitution Without Constitutionalism: Reflections On Iraq's Failed Constitutional Process, Feisal Amin Istrabadi

Articles by Maurer Faculty

No abstract provided.

Between A Rock And A Hard Place: Landlords, Latinos, Anti-Illegal Immigrant Ordinances, And Housing Discrimination, Rigel C. Oliveri

Faculty Publications

In the face of federal inability to effectively police our national borders and to remove unauthorized immigrants, many local governments have recently sought to take measures into their own hands by passing anti-illegal immigrant ("AII") ordinances. These ordinances usually contain a combination of provisions restricting housing, employment, and public benefits for unauthorized immigrants, among other things.This Article focuses on AII provisions that are targeted at private rental housing, which typically take the form of sanctions against landlords who rent to unauthorized immigrants.

Marriage As Monopoly: History, Tradition, Incrementalism, And The Marriage/Civil Union Distinction, Suzanne B. Goldberg

Faculty Scholarship

History and tradition have taken a prominent place as favored rationales for the exclusion of same-sex couples from marriage. Incrementalism likewise has been invoked to suggest that states can permissibly move “one step at a time” to redress the unequal status of same-sex couples, including by creating a civil union/marriage regime instead of providing marriage for all. Yet constitutional jurisprudence is clear that neither longevity nor tradition alone can justify the continuation of a discriminatory rule. This Article asks, then, what work these rationales perform in the marriage/civil union jurisprudence and debate, given their inadequacy from a doctrinal standpoint.

The …

The Color Of Our Future: The Pitfalls And Possibilities Of The Race Card In American Culture, Christopher A. Bracey

GW Law Faculty Publications & Other Works

We live in a country haunted by a past of slavery, segregation, racism, and violence. Though many systemic corrections have been attempted, a large percentage of African-Americans continue to fall behind their White counterparts in nearly every index of socio-economic well-being. The debate rages on as to why this situation exists and persists, and people on both sides of the color divide have become increasingly sensitive to perceptions and accusations of racial injustice. In his book, The Race Card: How Bluffing About Bias Makes Race Relations Worse, Richard Thompson Ford explores the phenomenon called “the race card,” wherein individuals play …

A Moving Bar Approach To Assessing The Admissibility Of Expert Causation Testimony, Aaron Katz

Cleveland State Law Review

This Article argues that the Supreme Court's decisions in Daubert and Joiner imply an approach to the reliability, and hence admissibility, of causation experts that conflicts with the way in which courts traditionally had determined whether to allow the jury to speculate on uncertain causation-in-fact questions. Largely moving past the debate of whether Daubert and Joiner set the admissibility bar too high or low, the Article instead criticizes the decisions on the ground that they suggest that the height of the reliability bar is static and should not be adjusted depending upon the circumstances of the defendant's possibly injurious conduct. …

Voluntary Dismissal In Ohio: A Tale Of An Ancient Procedure In A Modern World, S. Ben Barnes

Cleveland State Law Review

This Note will demonstrate that a modified Federal Rule is the best rule for voluntary dismissal. First, this Note will survey the history of voluntary dismissal and the progression from the common law in England to the current Federal Rule. Second, this Note will discuss the abuses of the rule in Ohio and the need for change. Third, this Note will dissect the Ohio Rule and compare it alongside the Federal Rule. Fourth, this Note will examine possible alternatives. Finally, this Note will propose why a modification of the Federal Rule is the most practical answer to the abuses of …

Soft Law As Delegation, Timothy Meyer

Faculty Scholarship

This article examines one of the most important trends in international legal governance since the end of the Second World War: the rise of "soft law," or legally non-binding instruments. Scholars studying the design of international agreements have long puzzled over why states use soft law. The decision to make an agreement or obligation legally binding is within the control of the states negotiating the content of the legal obligations. Basic contract theory predicts that parties to a contract would want their agreement to be as credible as possible, to ensure optimal incentives to perform. It is therefore odd that …

The Unbearable Lightness Of Marriage In The Abortion Decisions Of The Supreme Court: Altered States In Constitutional Law, William W. Van Alstyne

Faculty Scholarship

No abstract provided.

A Careful Examination Of The Live Nation-Ticketmaster Merger, Barak D. Richman, Alan J. Meese

Faculty Scholarship

As great admirers of The Boss and as fans of live entertainment, we share in the popular dismay over rising ticket prices for live performances. But we have been asked as antitrust scholars to examine the proposed merger of Live Nation and Ticketmaster, and we do so with the objectivity and honesty called for by The Boss’s quotes above. The proposed merger has been the target of aggressive attacks from several industry commentators and popular figures, but the legal and policy question is whether the transaction is at odds with the nation’s antitrust laws.

One primary source of concern to …

Historical Practice And The Contemporary Debate Over Customary International Law, Ernest A. Young

Faculty Scholarship

Response to: Anthony J. Bellia, Jr. & Bradford R. Clark, The Federal Common Law of Nations, 109 Colum. L. Rev. 1 (2009).

A.J. Bellia and Brad Clark have performed a valuable service for other scholars interested in foreign relations law and federal jurisdiction by collecting and illuminating—with their usual care and insight—the historical practice of both English and early American courts with respect to the law of nations. Their recent Article, The Federal Common Law of Nations, demonstrates that, while American courts have not generally treated customary international law (CIL) as supreme federal law, they have applied such law where …

Implementing The New Ecosystem Services Mandate Of The Section 404 Compensatory Mitigation Program - A Catalyst For Advancing Science And Policy, James Salzman, J.B. Ruhl, Iris Goodman

Faculty Scholarship

On April 10, 2008, the U.S. Army Corps of Engineers (Corps) and Environmental Protection Agency (EPA) jointly published final regulations defining standards and procedures for authorizing compensatory mitigation of impacts to aquatic resources the Corps permits under Section 404 of the Clean Water Act (Section 404). Prior to the rule, the Section 404 compensatory mitigation program had been administered under a mish-mash of guidances, inter-agency memoranda, and other policy documents issued over the span of 17 years. A growing tide of policy and science scholarship criticized the program's administration as not accounting for the potential redistribution of ecosystem services that …

Full Faith And Credit In The Early Congress, Stephen E. Sachs

Faculty Scholarship

After more than 200 years, the Full Faith and Credit Clause remains poorly understood. The Clause first issues a self-executing command (that "Full Faith and Credit shall be given"), and then empowers Congress to prescribe the manner of proof and the "Effect" of state records in other states. But if states must accord each other full faith and credit-and if nothing could be more than full-then what "Effect" could Congress give state records that they wouldn't have already? And conversely, how could Congress in any way reduce or alter the faith and credit that is due?

This Article seeks to …

The Solicitor General As Mediator Between Court And Agency, Margaret H. Lemos

Faculty Scholarship

No abstract provided.

The Ethical Dimensions Of National Security Law, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Towards A Cyberspace Legal Regime In The Twenty-First Century: Considerations For American Cyber-Warriors, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Insincere And Involuntary Public Apologies, Lisa Kern Griffin

Faculty Scholarship

No abstract provided.

Maritime Delimitation In The Black Sea (Romania V. Ukraine), Coalter G. Lathrop

Faculty Scholarship

No abstract provided.

Future Generations: A Prioritarian View, Matthew D. Adler

Faculty Scholarship

No abstract provided.

Unpacking The State’S Reputation, Rachel Brewster

Faculty Scholarship

International law scholars debate when international law matters to states, how it matters, and whether we can improve compliance. One of the few areas of agreement is that fairly robust levels of compliance can be achieved by tapping into states’ concerns with their reputation. The logic is intuitively appealing: a state that violates international law develops a bad reputation, which leads other states to exclude the violator from future cooperative opportunities. Anticipating a loss of future gains, states will often comply with international rules that are not in their immediate interests. The level of compliance that reputation can sustain depends, …

Shadow Unilateralism: Enforcing International Trade Law At The Wto, Rachel Brewster

Faculty Scholarship

This short essay briefly traces the evolution of trade law enforcement from the the GATT to the WTO regime. The WTO's Dispute Settlement Understanding (DSU) is widely viewed as a major innovation from the GATT regime in that it subordinates unilateral enforcement of trade law to a rule-based system of multilateral enforcement. I recognize the successes of the WTO regime but the institution effective permits (if not encourages) the unilateral enforcement of trade law outside of the DSU framework Specifically, I examine how the DSU system only provides a prospective remedy - that is, the DSU permits retaliation only for …

The Hidden Dimension Of Nineteenth-Century Immigration Law, Kerry Abrams

Faculty Scholarship

No abstract provided.

Marriage As A Message: Same-Sex Couples And The Rhetoric Of Accidental Procreation, Kerry Abrams, Peter Brooks

Faculty Scholarship

In his dissent in the 2003 case Goodridge v. Department of Health, Justice Robert Cordy of the Massachusetts Supreme Court introduced a novel argument in support of state bans on same-sex marriage: that marriage is an institution designed to create a safe social and legal space for accidental heterosexual reproduction, a space that is not necessary for same-sex couples who, by definition, cannot accidentally reproduce. Since 2003, every state appellate court considering a same-sex marriage case has adopted Justice Cordy's dissent until the recent California Supreme Court decision In Re Marriage Cases. In case after case, courts have held that …

Becoming A Citizen: Marriage, Immigration, And Assimilation, Kerry Abrams

Faculty Scholarship

No abstract provided.

Making The Leap To Management: Tips For The Aspiring And New Manager, Femi Cadmus

Faculty Scholarship

As the result of innate ability, a fortunate few are able to effortlessly transition from line positions. However, most of us need to plot the path to management astutely and with deliberation. Library professionals might also become "accidental" managers, finding themselves thrust into an unplanned and perhaps unwanted managerial position for which they were not prepared. This is particularly true in the current climate of constrained budgets characterized by restructuring, job freezes, and layoffs.

The Law Librarian’S Tool For Fair Compensation In The Best - And Worst - Of Times, Femi Cadmus, Loretta Orndoff

Faculty Scholarship

No abstract provided.

The Ice Storm In U.S. Homes: An Urgent Call For Policy Change, Katherine Evans

Faculty Scholarship

Since its creation in 2003, the Bureau of Immigration and Customs Enforcement (ICE) has used increasingly aggressive tactics to enforce U.S. immigration law. One of ICE's most prominent enforcement initiatives is its practice of raiding the homes of immigrants. Accounts of home raids from victims all over the country reveal a pattern of practice that differs widely from ICE's official statements regarding raids. This paper establishes that although immigration officials are governed by the Fourth Amendment when conducting home raids, ICE's agents nonetheless regularly violate the Constitution when carrying out home raids. Additionally, this paper argues that the number and …

University Software Ownership And Litigation: A First Examination, Arti K. Rai, John R. Allison, Bhaven N. Sampat, Colin Crossman

Faculty Scholarship

Software patents and university-owned patents represent two of the most controversial intellectual property developments of the last twenty-five years. Despite this reality, and concerns that universities act as "patent trolls" when they assert software patents in litigation against successful commercializers, no scholar has systematically examined the ownership and litigation of university software patents. In this Article, we present the first such examination. Our empirical research reveals that software patents represent a significant and growing proportion of university patent holdings. Additionally, the most important determinant of the number of software patents a university owns is not its research and development ("R&D") …

Civil Justice Systems In Europe And The United States, Hein Kötz

Faculty Scholarship

Professor Kötz delivered the inaugural Herbert L. Bernstein Memorial Lecture in Comparative Law in 2002 and this article is based on his remarks. The article is included in the inaugural volume of CICLOPs that collects the first six Bernstein lectures. In order to highlight the similarities and differences in legal regimes between Europe and the United States, Professor Hein Kötz analyzes the German and American civil legal systems and, to a minor extent, the British civil legal system. Specifically, Kötz focuses on one of the distinguishing features of the American legal system, the civil jury, and its impact on the …

Europeanization As A Process: Thoughts On The Europeanization Of Private Law, Christian Joerges

Faculty Scholarship

Professor Christian Joerges delivered the Second Annual Herbert L. Bernstein Memorial Lecture in Comparative Law in 2003 and this article is based on his remarks. The article is included in the inaugural volume of CICLOPs that collects the first six Bernstein lectures. Professor Joerges puts forth a three part thesis concerning the “Europeanization of Private Law”, the process by which the European Community influences the legal and political policies of its member states within a framework of transnational cooperation. Joerges first establishes the eroding importance of the idea that legal systems operating at the national level fulfill the goals of …