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2006

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The Truth Shall Set You Free: Journalists' Addiction To Truth In The Face Of Danger, Margaret O'Brien Middleton Jan 2006

The Truth Shall Set You Free: Journalists' Addiction To Truth In The Face Of Danger, Margaret O'Brien Middleton

Honors Theses

As maligned as they may be at times, journalists are constantly relied upon for information. Everyday, people watch television, read newspapers, and browse articles on the internet about dangerous events happening throughout the world. It is journalists’ responsibility to bring this news to their readers. However, many stories come with a very high price. In order to report on the things that are most important to society - things that are also usually the most dangerous -journalists are forced to put themselves in the line of fire to deliver the story. The question that this thesis strives to answer is …

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Constitutional Structure, Judicial Discretion, And The Eighth Amendment, Bradford R. Clark Jan 2006

Constitutional Structure, Judicial Discretion, And The Eighth Amendment, Bradford R. Clark

GW Law Faculty Publications & Other Works

The Supreme Court recently resolved a longstanding split in its Eighth Amendment jurisprudence when it declared that the cruel and unusual punishments clause delegates to federal courts broad discretion to exercise independent judgment to evaluate the propriety of punishments authorized by state law. The Court claimed authority to displace a punishment - however widely employed - based on the Court's own assessment of the penological effectiveness of the punishment and the moral culpability of the particular class of offenders. Notably, the Court did not, and has not in the modern era, attempted to justify its approach in terms of either …

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Nongovernmental Organizations And International Law, Steve Charnovitz Jan 2006

Nongovernmental Organizations And International Law, Steve Charnovitz

GW Law Faculty Publications & Other Works

This article examines NGOs and their advocacy activities aimed at influencing international relations. The article addresses longstanding issues such as the legal status of NGOs, as well as new problems such as whether NGO lobbying in intergovernmental forums is democratically legitimate. In doing so, the article draws upon past scholarship to shed light on the guiding ideas in the contemporary debate regarding NGOs. Part I examines issues regarding the identity of NGOs and then catalogs the ways that state practice incorporates NGOs into authoritative decision making. Part II looks at the legal status of NGOs in international law. Part III …

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A Constitutional Hierarchy Of Religions? Justice Scalia, The Ten Commandments, And The Future Of The Establishment Clause, Thomas Colby Jan 2006

A Constitutional Hierarchy Of Religions? Justice Scalia, The Ten Commandments, And The Future Of The Establishment Clause, Thomas Colby

GW Law Faculty Publications & Other Works

If there is one principle of Establishment Clause jurisprudence that has enjoyed the unanimous support of all of the Justices of the Supreme Court over the last half century, it is that all religions are afforded equal status under the Constitution. With his dissenting opinion in the 2005 Ten Commandments cases, however, Justice Scalia has upset that consensus. According to Justice Scalia's dissent, the Establishment Clause affords greater protection to the believers of some religions (Christianity, Judaism, Islam) than others (Hinduism, Buddhism, no religion, everything else). Turning traditional constitutional law on its head, Justice Scalia's approach treats the Establishment Clause …

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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 …

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Privacy Issues Affecting Employers, Employees, And Labor Organizations, Charles B. Craver Jan 2006

Privacy Issues Affecting Employers, Employees, And Labor Organizations, Charles B. Craver

GW Law Faculty Publications & Other Works

Privacy issues arise regularly in employment environments. Employers frequently assert privacy rights when denying non-employee union organizers access to employment premises and limiting the distribution of union literature or the solicitation of authorization cards by current employees. On the other hand, when employers desire to monitor employee computer usage on firm computers to be sure they are not accessing inappropriate sites or engaging in other inappropriate electronic behavior, they give short shrift to employee privacy claims. When employer premises are open to the general public, non-employee access to external areas such as parking lots might provide an appropriate accommodation between …

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The Common Law As An Iterative Process: A Preliminary Inquiry, Lawrence A. Cunningham Jan 2006

The Common Law As An Iterative Process: A Preliminary Inquiry, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

The common law often is casually referred to as an iterative process without much attention given to the detailed attributes such processes exhibit. This Article explores this characterization, uncovering how common law as an iterative process is one of endless repetition that is simultaneously stable and dynamic, self-similar but evolving, complex yet simple. These attributes constrain the systemic significance of judicial discretion and also confirm the wisdom of traditional approaches to studying and learning law. As an iterative system, common law exhibits what physicists call sensitive dependence on initial conditions. This generates a path dependency from which it may be …

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Too Big To Fail: Moral Hazard In Auditing And The Need To Restructure The Industry Before It Unravels, Lawrence A. Cunningham Jan 2006

Too Big To Fail: Moral Hazard In Auditing And The Need To Restructure The Industry Before It Unravels, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

Large audit firms may believe that they are too big to fail. Arthur Andersen's 2002 criminal indictment reduced their number from five to four, and the government decided in 2005 to avoid indicting KPMG for crimes it admitted committing. If audit firms interpret the government's reluctance to indict as signaling aversion to tough action against them, moral hazard arises. This offsets auditing improvements mandated by the Sarbanes-Oxley Act of 2002 that are designed to strengthen auditors' reputations with managers for thoroughness and improve financial statement reliability. Neutralizing this moral hazard requires a credible alternative industry structure so that when a …

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The Mysterious Ways Of Mutual Funds: Market Timing, Lawrence A. Cunningham, Tamar Frankel Jan 2006

The Mysterious Ways Of Mutual Funds: Market Timing, Lawrence A. Cunningham, Tamar Frankel

GW Law Faculty Publications & Other Works

The term market timing was little known outside the arcane world of mutual funds until state attorneys general from across the country popularized it. The term's innocuous-sounding ring assumed a more pernicious note when the mysterious ways of mutual funds became more transparent. In its pernicious sense, market timing denominates mutual fund insiders using the inscrutable structures of mutual funds to provide benefits selectively to favored participants at the expense of less favored participants. Mutual fund shares are not like common stocks; investments made using these vehicles are unlike those made through traditional securities markets. While the peculiar features of …

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The Sarbanes-Oxley Act: Legal Implications And Research Opportunities, Lawrence A. Cunningham, Stephen Kwaku Asare, Arnold Wright Jan 2006

The Sarbanes-Oxley Act: Legal Implications And Research Opportunities, Lawrence A. Cunningham, Stephen Kwaku Asare, Arnold Wright

GW Law Faculty Publications & Other Works

Congress passed the Sarbanes Oxley Act to restore investor confidence, which had been deflated by massive business and audit failures, epitomized by the demise of the Enron Corporation and Arthur Anderson LLP. The Act altered the roles and responsibilities of auditors, corporate officers, audit committee members, as well as other participants in the financial reporting process. We evaluate the potential legal implications of some of the Act's major provisions and anticipate participants' likely responses. Our evaluation suggests that these provisions will significantly change behavior, increase compliance costs and alter the legal landscape. We also identify promising avenues for future research …

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Language, Deals And Standards: The Future Of Xml Contracts, Lawrence A. Cunningham Jan 2006

Language, Deals And Standards: The Future Of Xml Contracts, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

eXtensible Markup Language (XML) structures information in documentary systems ranging from financial reports to medical records and business contracts. XML standards for specific applications are developed spontaneously by self-appointed technologists or entrepreneurs. XML's social and economic stakes are considerable, especially when developed for the private law of contracts. XML can reduce transaction costs but also limit the range of contractual expression and redefine the nature of law practice. So reliance on spontaneous development may be sub-optimal and identification of a more formal public standard setting model necessary. To exploit XML's advantages while minimizing risks, this Article envisions creating a publicly …

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Public Law Values In A Privatized World, Laura T. Dickinson Jan 2006

Public Law Values In A Privatized World, Laura T. Dickinson

GW Law Faculty Publications & Other Works

Although domestic administrative law scholars have long debated privatization within the US, this debate has not confronted the growing phenomenon of privatization in the international realm or its impact on the values embodied in public international law. Yet, with both nation-states and international organizations increasingly privatizing foreign affairs functions, privatization is now as significant a phenomenon internationally as it is domestically. For example, states are turning to private actors to perform core military, foreign aid, and diplomatic functions. Military privatization entered the popular consciousness in 2004, when private contractors working for the US government abused detainees at Abu Ghraib prison …

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Torture And Contract, Laura T. Dickinson Jan 2006

Torture And Contract, Laura T. Dickinson

GW Law Faculty Publications & Other Works

This essay is a contribution to the War Crimes Research Symposium: "Torture and the War on Terror” at Case Western Reserve University School of Law, October 7, 2005. The symposium raised important questions about the problem of torture and the use of torture in the so-called "War on Terror." In considering this problem, this essay focuses on an aspect of the issue that has only recently received popular and scholarly attention, but that is likely to have profound implications: the privatization of military functions, and specifically, the privatization of torture. Such privatization may, at first blush, seem to render it …

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Filartiga’S Legacy In An Era Of Military Privatization, Laura T. Dickinson Jan 2006

Filartiga’S Legacy In An Era Of Military Privatization, Laura T. Dickinson

GW Law Faculty Publications & Other Works

Filartiga v. Pena-Irala established the idea that domestic tort suits might be brought under the Alien Tort Claims Act ("ATCA") against those accused of violating human rights norms. But what is the legacy of this case in an era of military privatization? Are there available legal responses to what we might call the privatization of torture? In the Abu Ghraib prison in Iraq, where detainees were tortured and abused, the individuals involved in the torture included not only members of the military, but contractors hired from the private sector. Because U.S. constitutional scrutiny traditionally applies only to state actors, privatization …

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The Jurisdictional Heritage Of The Grand Jury Clause, Roger A. Fairfax Jr. Jan 2006

The Jurisdictional Heritage Of The Grand Jury Clause, Roger A. Fairfax Jr.

GW Law Faculty Publications & Other Works

For the first 150 years of our constitutional history, a valid grand jury indictment was deemed to be a mandatory prerequisite to a federal court's exercise of criminal subject matter jurisdiction. Under that view of the Grand Jury Clause, a defendant in a federal felony case could neither waive nor forfeit the right to grand jury indictment. A critical examination of the historical evidence reveals that the legal realist criminal procedure reform project of the early twentieth century advanced a pragmatic critique of the usefulness of the grand jury that culminated in a provision of the Federal Rules of Criminal …

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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 and …

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Engineering A Deal: Toward A Private Ordering Solution To The Anticommons Problem, F. Scott Kieff, Troy A. Paredes Jan 2006

Engineering A Deal: Toward A Private Ordering Solution To The Anticommons Problem, F. Scott Kieff, Troy A. Paredes

GW Law Faculty Publications & Other Works

The problems of the intellectual property ("IP") anticommons are infamous. Many people fear that the potential for vast numbers of IP rights to cover a single good or service will prevent an enterprise from even attempting to launch a business for fear of being unduly taxed or retarded or simply held up. This Article offers a solution based on private ordering within the context of existing laws. This approach uses a limited liability entity structured so that IP owners are given an actual stake in the operating business and thus an incentive to participate in the enterprise; and yet at …

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Constructing A Bid Protest Process: Choices Every Procurement Challenge System Must Make, Daniel I. Gordon Jan 2006

Constructing A Bid Protest Process: Choices Every Procurement Challenge System Must Make, Daniel I. Gordon

GW Law Faculty Publications & Other Works

Many public procurement systems, within the United States and abroad, have established systems for allowing vendors to challenge the conduct of procurement processes. Providing an effective domestic review mechanism for vendors who believe that government procurement officials have not conducted an acquisition lawfully brings an important measure of transparency and accountability to public procurement systems. This brief article discusses the goals of these bid protest systems, and then presents key choices that must be made in crafting such a system. For example: Where in the government is the protest forum located? How broad is the forum's jurisdiction? Who has standing …

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The American Transformation Of Waste Doctrine: A Pluralist Interpretation, Jedediah S. Purdy Jan 2006

The American Transformation Of Waste Doctrine: A Pluralist Interpretation, Jedediah S. Purdy

Faculty Scholarship

This Article draws on an episode of nineteenth-century American doctrinal history to develop a pluralist approach to explaining changes in property law. It addresses the question: What causes ac­count for the development of property regimes across time? The courts' answer emerges from examination of nineteenth-century American reform of the law of waste, which governs the changes te­nants may make in the estates they occupy. A line of state supreme court cases, beginning in 1810, transformed the doctrine from the strict rule of English common law to a flexible standard. Economic analysis helps to explain the change; the full story, however, …

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Faculty Masthead, Mjlst Editorial Board Jan 2006

Faculty Masthead, Mjlst Editorial Board

Minnesota Journal of Law, Science & Technology

No abstract provided.

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Student Masthead, Mjlst Editorial Board Jan 2006

Student Masthead, Mjlst Editorial Board

Minnesota Journal of Law, Science & Technology

No abstract provided.

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Share And Share Alike: Increasing Access To Government-Funded Inventions Under The Bayh-Dole Act, Gary Pulsinelli Jan 2006

Share And Share Alike: Increasing Access To Government-Funded Inventions Under The Bayh-Dole Act, Gary Pulsinelli

Minnesota Journal of Law, Science & Technology

No abstract provided.

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Biotech Patents And Indigenous Peoples, Dennis S. Karjala Jan 2006

Biotech Patents And Indigenous Peoples, Dennis S. Karjala

Minnesota Journal of Law, Science & Technology

No abstract provided.

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Access To And Control Over Plant Genetic Resources For Food And Agriculture In South And Southern Africa: How Many Wrongs Before A Right?, Debbie Collier Jan 2006

Access To And Control Over Plant Genetic Resources For Food And Agriculture In South And Southern Africa: How Many Wrongs Before A Right?, Debbie Collier

Minnesota Journal of Law, Science & Technology

No abstract provided.

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Property Rights Legislation In Agricultural Biotechnology: United States And Argentina, Andres A. Gallo, Jay P. Kesan Jan 2006

Property Rights Legislation In Agricultural Biotechnology: United States And Argentina, Andres A. Gallo, Jay P. Kesan

Minnesota Journal of Law, Science & Technology

No abstract provided.

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Genetic Discrimination, Torben Spaak Jan 2006

Genetic Discrimination, Torben Spaak

Minnesota Journal of Law, Science & Technology

No abstract provided.

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Testing Drugs And Testing Limits: Merck Kgaa V. Integra Lifesciences I, Ltd. And The Scope Of The Hatch-Waxman Safe Harbor Provision, Jonathan Hareid Jan 2006

Testing Drugs And Testing Limits: Merck Kgaa V. Integra Lifesciences I, Ltd. And The Scope Of The Hatch-Waxman Safe Harbor Provision, Jonathan Hareid

Minnesota Journal of Law, Science & Technology

No abstract provided.

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Throwing Out The (Electronic) Trash: True Deletion Would Soothe E-Discovery Woes, Andrew Moerke Mason Jan 2006

Throwing Out The (Electronic) Trash: True Deletion Would Soothe E-Discovery Woes, Andrew Moerke Mason

Minnesota Journal of Law, Science & Technology

No abstract provided.

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Faculty Masthead, Mjlst Editorial Board Jan 2006

Faculty Masthead, Mjlst Editorial Board

Minnesota Journal of Law, Science & Technology

No abstract provided.

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Student Masthead, Mjlst Editorial Board Jan 2006

Student Masthead, Mjlst Editorial Board

Minnesota Journal of Law, Science & Technology

No abstract provided.

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