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The American Inquisition: Sentencing After The Federal Guidelines, Ricardo J. Bascuas 2010 University of Miami School of Law

The American Inquisition: Sentencing After The Federal Guidelines, Ricardo J. Bascuas

Articles

No abstract provided.


Significant Statistics: The Unwitting Policy Making Of Mathematically Ignorant Judges, Michael I. Meyerson, William Meyerson 2010 University of Baltimore School of Law

Significant Statistics: The Unwitting Policy Making Of Mathematically Ignorant Judges, Michael I. Meyerson, William Meyerson

All Faculty Scholarship

This article will explore several areas in which judges, hampered by their mathematical ignorance, have permitted numerical analysis to subvert the goals of our legal system. In Part II, I will examine the perversion of the presumption of innocence in paternity cases, where courts make the counter-factual assumption that regardless of the evidence, prior to DNA testing, a suspect has a 50/50 chance of being the father. In Part III, I will explore the unnecessary injection of race into trials involving the statistics of DNA matching, even when race is entirely irrelevant to the particular case. Next, in Part ...


The Time And Place For "Technology-Shifting" Rights, Max Oppenheimer 2010 University of Baltimore School of Law

The Time And Place For "Technology-Shifting" Rights, Max Oppenheimer

All Faculty Scholarship

Intellectual property policy requires balance between the goal of motivating innovation and the need to prevent that motivation from stifling further innovation. The constitutional grant of congressional power to motivate innovation by securing "for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" is qualified by the requirement that congressional enactments under the Intellectual Property Clause "promote progress."

The speed of technological change, particularly in the converging fields of computer software, music, video, television, and communications, coupled with the power of technology industry lobbying, have left the statutory balance tilted in favor of rewarding ...


“Hard Strikes And Foul Blows”: Berger V. United States 75 Years After, Bennett L. Gershman 2010 Elisabeth Haub School of Law at Pace University

“Hard Strikes And Foul Blows”: Berger V. United States 75 Years After, Bennett L. Gershman

Pace Law Faculty Publications

My essay examines one of the most iconic decision of the Supreme Court seventy five years later. Berger v. United States is the most eloquent and authoritative description of the prosecutor's duty "not that it shall win a case but that justice shall be done." My essay looks at why the Court decided to take up the case then, and why it has become so prominent in criminal law and ethics.


Eleventh Annual Grotius Lecture Response: Commentary On Achim Steiner's 2009 Grotius Lecture, Dinah L. Shelton 2010 George Washington University Law School

Eleventh Annual Grotius Lecture Response: Commentary On Achim Steiner's 2009 Grotius Lecture, Dinah L. Shelton

GW Law Faculty Publications & Other Works

This commentary discusses the impact of the 2009 Grotius Lecture delivered by Achim Steiner, Executive Director of the United Nations Environmental Program (“UNEP”). The commentary elaborates on a fundamental lesson of the lecture: law can be a conduit for transformative economic change. The commentary emphasizes the need for international entities such as UNEP to address global environmental crises that result from pollution largely generated by industrial countries. The commentary encourages leaders to consider these environmental challenges as possible threats to human rights.


Banks And Brokers And Bricks And Clicks: An Evaluation Of Finra's Proposal To Modify The "Bank Broker-Dealer Rule", Jill I. Gross 2010 Elisabeth Haub School of Law at Pace University

Banks And Brokers And Bricks And Clicks: An Evaluation Of Finra's Proposal To Modify The "Bank Broker-Dealer Rule", Jill I. Gross

Pace Law Faculty Publications

As discussed in this article, the proposed rule change protects bank customers who may be solicited for the purchase of investment products and services, but only to a limited extent. It does not rectify sales practices of broker-dealers--affiliated with financial institutions--which tend to confuse, and even mislead, financially unsophisticated investors of modest means who can least afford to be exposed to excessive risk. Additionally, the proposed rule change adds no meaningful surveillance, inspection, enforcement, or punitive mechanisms to prevent and/or redress insidious practices that are akin to “bait and switch” tactics and are particularly effective against financially unsophisticated investors ...


Cultural Cognition Of Scientific Consensus, Donald Braman, Dan M. Kahan, Hank Jenkins-Smith 2010 George Washington University Law School

Cultural Cognition Of Scientific Consensus, Donald Braman, Dan M. Kahan, Hank Jenkins-Smith

GW Law Faculty Publications & Other Works

Why do members of the public disagree - sharply and persistently - about facts on which expert scientists largely agree? We designed a study to test a distinctive explanation: the cultural cognition of scientific consensus. The "cultural cognition of risk" refers to the tendency of individuals to form risk perceptions that are congenial to their values. The study presents both correlational and experimental evidence confirming that cultural cognition shapes individuals' beliefs about the existence of scientific consensus, and the process by which they form such beliefs, relating to climate change, the disposal of nuclear wastes, and the effect of permitting concealed possession ...


Copyright And The World's Most Popular Song, Robert Brauneis 2010 The George Washington University Law School

Copyright And The World's Most Popular Song, Robert Brauneis

GW Law Faculty Publications & Other Works

"Happy Birthday to You" is the best-known and most frequently sung song in the world. Many - including Justice Breyer in his dissent in Eldred v. Ashcroft - have portrayed it as an unoriginal work that is hardly worthy of copyright protection, but nonetheless remains under copyright. Yet close historical scrutiny reveals both of those assumptions to be false. The song that became "Happy Birthday to You," originally written with different lyrics as "Good Morning to All," was the product of intense creative labor, undertaken with copyright protection in mind. However, it is almost certainly no longer under copyright, due to a ...


A Core Of Agreement, Donald Braman, Dan M. Kahan, David Hoffman 2010 George Washington University Law School

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 ...


Outsourcing Democracy: Redefining The Public Private Partnership In Election Administration, Gilda R. Daniels 2010 University of Baltimore School of Law

Outsourcing Democracy: Redefining The Public Private Partnership In Election Administration, Gilda R. Daniels

All Faculty Scholarship

“We are left with a system in which almost every state still outsources its elections to what are actually private organizations.”

Federal, state and local governments are deeply indebted to private organizations, political parties, candidates, and private individuals to assist it, inter alia, in registering voters, getting citizens to the ballot box through get out the vote campaigns (GOTV), assisting limited English proficient (LEP) citizens, and monitoring Election Day activities. In a recent Supreme Court case, Crawford v. Marion County, Justice Souter recognized that voting legislation has “two competing interests,” the fundamental right to vote and the need for governmental ...


Voter Deception, Gilda R. Daniels 2010 University of Baltimore School of Law

Voter Deception, Gilda R. Daniels

All Faculty Scholarship

In our recent electoral history, deceptive practices have been utilized to suppress votes in an attempt to affect election results. In most major elections, citizens endure warnings of arrest, deportation, and even violence if they attempt to vote. In many instances, these warnings are part of a larger scheme to suppress particular voters, whom I call “unwanted voters,” from exercising the franchise. Recent advancements in technology provide additional opportunities for persons to deceive voters, such as calls alerting citizens that Republicans (Whites) vote on Tuesday and Democrats vote (Blacks) on Wednesday. In spite of this resurgence of deception, the statutes ...


Epa's Definition Of "Solid Waste" Under Subtitle C Of The Resource Conservation And Recovery Act: Is Epa Adequately Protecting Human Health And The Environment While Promoting Recycling?, Steven A.G. Davison 2010 University of Baltimore School of Law

Epa's Definition Of "Solid Waste" Under Subtitle C Of The Resource Conservation And Recovery Act: Is Epa Adequately Protecting Human Health And The Environment While Promoting Recycling?, Steven A.G. Davison

All Faculty Scholarship

No abstract provided.


Book Review: The Sword And The Scales: The United States And International Courts And Tribunals, Nienke Grossman 2010 University of Baltimore School of Law

Book Review: The Sword And The Scales: The United States And International Courts And Tribunals, Nienke Grossman

All Faculty Scholarship

This is a book review of "The Sword and the Scales: The United States and International Courts and Tribunals," edited by Cesare P. R. Romano (Cambridge Univ. Press, 2010). The book provides in-depth analysis of the relationship between the United States and various of the world's most important international courts and tribunals. The review was written for a forthcoming issue of Climate Law.


Sex Representation On The Bench: Legitimacy And International Criminal Courts, Nienke Grossman 2010 University of Baltimore School of Law

Sex Representation On The Bench: Legitimacy And International Criminal Courts, Nienke Grossman

All Faculty Scholarship

This essay examines the relationship between legitimacy and the presence of both male and female judges on international criminal court benches. It argues that sex representation – an approximate reflection of the ratio of the sexes in the general population – on the bench is an important contributor to legitimacy of international criminal courts. First, it proposes that sex representation affects normative legitimacy because men and women bring different perspectives to judging. Consequently, without both sexes, adjudication is inherently biased. Second, even if one rejects the proposition that men and women "think differently", sex representation affects sociological legitimacy because sex representation signals ...


Authentication Of Biometric Features Using Texture Coding For Id Cards, Jonathan Blackledge, Eugene Coyle 2010 Dublin Institute of Technology

Authentication Of Biometric Features Using Texture Coding For Id Cards, Jonathan Blackledge, Eugene Coyle

Conference papers

The use of image based information exchange has grown rapidly over the years in terms of both e-to-e image storage and transmission and in terms of maintaining paper documents in electronic form. Further, with the dramatic improvements in the quality of COTS (Commercial-Off-The-Shelf) printing and scanning devices, the ability to counterfeit electronic and printed documents has become a widespread problem. Consequently, there has been an increasing demand to develop digital watermarking techniques which can be applied to both electronic and printed images (and documents) that can be authenticated, prevent unauthorized copying of their content and, in the case of printed ...


In Search Of "Laissez-Faire Constitutionalism", Matthew Lindsay 2010 University of Baltimore School of Law

In Search Of "Laissez-Faire Constitutionalism", Matthew Lindsay

All Faculty Scholarship

This article is a response to Professor Jed Shugerman’s Economic Crisis and the Rise of Judicial Elections and Judicial Review, HARVARD LAW REVIEW (2010). Professor Shugerman argues that the widespread adoption of judicial elections in the 1850’s and the embrace by the first generation of elected judges of countermajoritarian rationales for judicial review helped to effect a transition from the active, industry-building state of the early nineteenth century to the "laissez-faire constitutionalism" of the Lochner era. This response argues that Professor Shugerman overstates the causal relationship between the elected judiciary’s robust constitutional defense of "vested rights" and ...


Immigration As Invasion: Sovereignty, Security, And The Origins Of The Federal Immigration Power, Matthew Lindsay 2010 University of Baltimore School of Law

Immigration As Invasion: Sovereignty, Security, And The Origins Of The Federal Immigration Power, Matthew Lindsay

All Faculty Scholarship

This Article offers a new interpretation of the modern federal immigration power. At the end of the nineteenth century, the Supreme Court and Congress fundamentally transformed the federal government’s authority to regulate immigration, from a species of commercial regulation firmly grounded in Congress’ commerce authority, into a power that was unmoored from the Constitution, derived from the nation’s “inherent sovereignty,” and subject to extraordinary judicial deference. This framework, which is commonly referred to as the “plenary power doctrine,” has stood for more than a century as an anomaly within American public law. The principal legal and rhetorical rationale ...


How To Make The Much-Needed Employee Free Choice Act Politically Acceptable, Charles B. Craver 2010 George Washington University Law School

How To Make The Much-Needed Employee Free Choice Act Politically Acceptable, Charles B. Craver

GW Law Faculty Publications & Other Works

The proposed Employee Free Choice Act (AFCA) would make it easier for employees to select bargaining agents by allowing unions to become certified based upon authorization cards instead of secret ballot Labor Board elections. This practice would be similar to the practice employed by the Labor Board under the original NLRA from 1935 until 1947. To ensure that a majority of workers really desire representation, EFCA could require that 60% or 67% of employees in proposed bargaining units sign authorization cards before the designated union could be certified. EFCA would also require first contract arbitration in the many instances in ...


Negotiation Ethics For Real World Interactions, Charles B. Craver 2010 George Washington University Law School

Negotiation Ethics For Real World Interactions, Charles B. Craver

GW Law Faculty Publications & Other Works

Attorneys negotiate constantly. Many persons who teach negotiation courses feel uncomfortable with the deception often associated with bargaining. Negotiators demand more or offer less than they are willing to accept, and over- and under-state the value of different items for strategic purposes. Such "puffing" and "embellishment" are part of most business and legal interactions, and are are accepted by most professionals. On the other hand, misrepresentations of material information is clearly improper. Collaborative and Cooperative lawyers who feel uncomfortable using deceptive tactics to further client interests have agreed to be entirely open and cooperative when they negotiate. At what point ...


It's The Law! Applying The Law Is The Missing Measure Of Civil Law / Common Law Convergence, James Maxeiner 2010 University of Baltimore School of Law

It's The Law! Applying The Law Is The Missing Measure Of Civil Law / Common Law Convergence, James Maxeiner

All Faculty Scholarship

It’s the Law! The application of law to facts is a measure of convergence of common and civil law systems of civil procedure that is missing from our program. The previous session addressed “Getting Straight to the Facts” and “Getting Results.” Facts and results are fine, but what of the law and of its application? Should not applying law have pride of place in systems of civil justice? Should not it be the measure of convergence?

The measure of convergence that I propose is whether methods of applying law to facts are converging. Applying law to facts is the ...


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