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2011

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Problems In Environmental Protection And Human Rights: A Human Right To The Environment, Dinah L. Shelton Jan 2011

Problems In Environmental Protection And Human Rights: A Human Right To The Environment, Dinah L. Shelton

GW Law Faculty Publications & Other Works

This "case study" was intended to be included in Anton & Shelton, Environmental Problems and Human Rights (Cambridge, 2011), but space limitations forced its omission from the printed text. The assertion of a human right to a healthy environment has persisted over the last 40 years. Here we examine the international guarantees and national guarantees that have developed. We also look at moves toward a Declaration on Human Rights and the Environment.

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Pathway To Minority Shareholder Protection: Derivative Actions In The People's Republic Of China, Donald C. Clarke Jan 2011

Pathway To Minority Shareholder Protection: Derivative Actions In The People's Republic Of China, Donald C. Clarke

GW Law Faculty Publications & Other Works

Using a dataset of Chinese judicial opinions arising in over fifty cases, this paper analyses the development and current implementation of shareholder derivative actions in the courts of the People’s Republic of China (“PRC”), both before and after the derivative lawsuit was explicitly authorized in the PRC’s 2006 Company Law effective January 1, 2006. In addition, we describe the very unique ecology of enterprise organization and corporate governance in modern China, and critique the formal design of the derivative action and offer reform suggestions.

We find the design of the Chinese derivative lawsuit to be, in some respects, innovative and …

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Problems In Human Rights And Large Dams, Dinah L. Shelton, Donald K. Anton Jan 2011

Problems In Human Rights And Large Dams, Dinah L. Shelton, Donald K. Anton

GW Law Faculty Publications & Other Works

This "case study" was intended to be included in Anton & Shelton, Environmental Problems and Human Rights (Cambridge, 2011), but space limitations forced its omission from the printed text. Among large infrastructure projects, damming rivers to provide hydroelectric power have been the source of considerable conflict between governments and the people who are affected by such projects, especially those forced to relocate. In many instances dams are built in pristine natural areas, destroying or degrading nature reserves, indigenous lands and/or archaeological sites. Increasing opposition to large dams has resulted in national and international litigation, as well as substantial changes in …

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Problems In Human Rights And Transboundary Pollution, Dinah L. Shelton, Donald K. Anton Jan 2011

Problems In Human Rights And Transboundary Pollution, Dinah L. Shelton, Donald K. Anton

GW Law Faculty Publications & Other Works

This "case study" was intended to be included in Anton & Shelton, Environmental Problems and Human Rights (Cambridge, 2011), but space limitations forced its omission from the printed text. Using the Application Instituting Proceedings in the International Court of Justice case involving Arial Herbicide Spraying (Ecuador v. Columbia) [2008] ICJ 4-28 General List No. 138 (March 31, 2008)(footnote omitted), this case study raises questions associated with human rights and international environmental law.

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Federal Rule Of Evidence 408 And Criminal Cases, Stephen A. Saltzburg Jan 2011

Federal Rule Of Evidence 408 And Criminal Cases, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

This article examines United States v. Davis, 596 F.3d 852 (D.C. Cir. 2010) to illustrate the kind of protection Federal Rule of Evidence 408 can afford a criminal defendant who seeks to exclude evidence of an offer to settle what appears to be a civil dispute.

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The Right Objection, Stephen A. Saltzburg Jan 2011

The Right Objection, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

Crafting the right objection to evidence presented at trial is important both to win an evidence fight and to preserve an issue for appeal. This article examines United States v. Davis, 596 F.3d 852 (D.C. Cir. 2010) to illustrate just how difficult making the right objection can be.

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What Is International Economic Law?, Steve Charnovitz Jan 2011

What Is International Economic Law?, Steve Charnovitz

GW Law Faculty Publications & Other Works

This article attempts to define international economic law and its role in the international legal regime. After describing various options for the definition of international economic law, the article discusses the history of policy developments that led to the creation of international economic law as a field of legal scholarship. The article then discusses the role that various academics have played in the development of scholarship in this area and notes that international economic law garnered high popularity in the early 1980s because of a treatise written by Pieter VerLoren van Themaat. The article concludes by considering the relationship of …

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Train Wrecks, Budget Deficits, And The Entitlements Explosion: Exploring The Implications Of The Fourteenth Amendment's Public Debt Clause, Michael B. Abramowicz Jan 2011

Train Wrecks, Budget Deficits, And The Entitlements Explosion: Exploring The Implications Of The Fourteenth Amendment's Public Debt Clause, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

This Article explores the implications of the Fourteenth Amendment's Public Debt Clause for the debt ceiling and fiscal policy.

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‘They Saw A Protest’: Cognitive Illiberalism And The Speech-Conduct Distinction, Donald Braman, Dan M. Kahan, David A. Hoffman, Danieli Evans, Jeffrey J. Rachlinski Jan 2011

‘They Saw A Protest’: Cognitive Illiberalism And The Speech-Conduct Distinction, Donald Braman, Dan M. Kahan, David A. Hoffman, Danieli Evans, Jeffrey J. Rachlinski

GW Law Faculty Publications & Other Works

“Cultural cognition” refers to the unconscious influence of individuals’ group commitments on their perceptions of legally consequential facts. We conducted an experiment to assess the impact of cultural cognition on perceptions of facts relevant to distinguishing constitutionally protected “speech” from unprotected “conduct.” Study subjects viewed a video of a political demonstration. Half the subjects believed that the demonstrators were protesting abortion outside of an abortion clinic, and the other half that the demonstrators were protesting the military’s “don’t ask, don’t tell” policy outside a campus recruitment facility. Subjects of opposing cultural outlooks who were assigned to the same experimental condition …

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Cooperative Legalism And The Non-Americanization Of European Regulatory Styles: The Case Of Data Privacy, Francesca Bignami Jan 2011

Cooperative Legalism And The Non-Americanization Of European Regulatory Styles: The Case Of Data Privacy, Francesca Bignami

GW Law Faculty Publications & Other Works

European countries have experienced massive structural transformations over the past twenty-five years with the privatization of state-owned industries, the liberalization of markets, and the rise of the European Union. According to one prominent line of analysis, these changes have led to the Americanization of European regulatory styles: previously informal and cooperative modes of regulation are becoming adversarial and litigation-driven, as in the American system. This article explores the Americanization hypothesis with a structured comparison of data privacy regulation in four countries (France, Britain, Germany, and Italy) and a review of three other policy areas. It finds that European regulatory systems …

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From Expert Administration To Accountability Network: A New Paradigm For Comparative Administrative Law, Francesca Bignami Jan 2011

From Expert Administration To Accountability Network: A New Paradigm For Comparative Administrative Law, Francesca Bignami

GW Law Faculty Publications & Other Works

Notwithstanding the radically changed landscape of contemporary administrative governance, the categories that guide comparative administrative law and that determine what will be compared remain similar to those used at the founding of the discipline in the late 1800s. These categories are rooted in confidence in an expert bureaucracy to accomplish public purposes and are mainly twofold - administrative organization and judicial review. This outdated model has limited the ability of comparative law to engage with contemporary debates on the administrative state, which instead display considerable skepticism of public administration and are premised on achieving the public good through a plural …

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Creating European Rights: National Values And Supranational Interests, Francesca Bignami Jan 2011

Creating European Rights: National Values And Supranational Interests, Francesca Bignami

GW Law Faculty Publications & Other Works

This Article develops an explanation for the emergence of individual rights before the European Commission, one of the oldest and most powerful international organizations in existence today. I argue that, in the early days of the European Community, rights before the Commission were patterned on the laws and legal traditions of the dominant Member States. Changing political circumstances largely outside the control of the Commission and other European institutions gave rise to a number of discrete, historical challenges to their authority. Most of these challenges came from citizens with allegiances to minority, national constitutional symbols and practices who were determined …

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Randomizing Law, Michael B. Abramowicz, Ian Ayers, Yair Listokin Jan 2011

Randomizing Law, Michael B. Abramowicz, Ian Ayers, Yair Listokin

GW Law Faculty Publications & Other Works

Governments should embrace randomized trials to estimate the efficacy of different laws and regulations. Just as random assignment of treatments is the most powerful method of testing for the causal impact of pharmaceuticals, randomly assigning individuals or firms to different legal rules can help resolve uncertainty about the consequential impacts of law. We explain why randomized testing is likely to produce better information than nonrandom evaluation of legal policies and offer guidelines for conducting legal experimentation successfully, considering a variety of obstacles, including ethical ones. Randomization will not be useful for all policies, but once government gains better experience with …

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The Inducement Standard Of Patentability, Michael B. Abramowicz, John F. Duffy Jan 2011

The Inducement Standard Of Patentability, Michael B. Abramowicz, John F. Duffy

GW Law Faculty Publications & Other Works

In Graham v. John Deere, the Supreme Court explained that patent law’s nonobviousness doctrine is meant to restrict the award of patents only to “those inventions which would not be disclosed or devised but for the inducement of a patent.” This Article argues that this inducement standard, largely ignored in practice, should serve as the doctrinal polestar. Such an approach would provide a solid economic foundation for the patentability standard and would align patent law with the many other fields of regulatory law that currently apply economic analysis in determining the scope and content of regulation. The Article also offers …

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Thomas Nast's Crusading Legal Cartoons, Renée Lettow Lerner Jan 2011

Thomas Nast's Crusading Legal Cartoons, Renée Lettow Lerner

GW Law Faculty Publications & Other Works

The cartoonist Thomas Nast (1840-1902) was in his heyday a political institution, with each of his pictures helping to form public opinion. His influence reached its height in the late 1860s and early 1870s with his relentless caricatures of Boss Tweed and the Tammany Hall Ring in New York City. One part of Nast’s work not often highlighted but as brilliant as the rest is his legal cartoons. Nast’s best work was done with high moral zeal, and his satire of lawyers and the legal system was no exception. His attacks grew out of frustration with the ineffectiveness of legal …

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Visa As Property, Visa As Collateral, Eleanor Marie Brown Jan 2011

Visa As Property, Visa As Collateral, Eleanor Marie Brown

GW Law Faculty Publications & Other Works

Although the "tragic choice" framework has not been applied in the context of U.S. immigration law, current immigration policy is rife with tragic choices, defined as a commitment by policy elites to maintaining certain illusions which shield from public view tough policy choices that offend deeply held values. Take, for example, the issue of commodification of visas. Policy makers remain committed to maintaining the historical illusion that U.S. visas are open to well-deserving migrants, and are not being "sold" Yet U.S. immigration practice has long made concessions to commodification at the margins. Indeed, some migrants “pay” very high prices to …

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Trademark Infringement, Trademark Dilution, And The Decline In Sharing Of Famous Brand Names: An Introduction And Empirical Study, Robert Brauneis, Paul J. Heald Jan 2011

Trademark Infringement, Trademark Dilution, And The Decline In Sharing Of Famous Brand Names: An Introduction And Empirical Study, Robert Brauneis, Paul J. Heald

GW Law Faculty Publications & Other Works

This article provides an introduction to the study of brand-name sharing, and presents results from an empirical study of sharing rates among 131 famous brand names from 1940 through 2010, conducted through an examination of business names in the white pages telephone directories of Chicago, Philadelphia, and Manhattan. Perhaps the most dramatic finding of the study is that independent uses of the 131 brand names – that is, uses of those names by businesses other than those that made the names famous – have declined from 3000 to 1380 between 1960 and 2010, a 54% drop. The article then assesses …

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Self-Determination In Regional Human Rights Law: From Kosovo To Cameroon, Dinah L. Shelton Jan 2011

Self-Determination In Regional Human Rights Law: From Kosovo To Cameroon, Dinah L. Shelton

GW Law Faculty Publications & Other Works

This article discusses the right to self-determination in Africa and America and begins by examining the right to self-determination in regional human rights treaties. No treaty in the Inter-American system provides a right to self-determination; however, the African Charter provides a right to self-determination, which I attribute to its history of colonization and apartheid. Next, the article describes secession claims made in Africa, starting in 1995 and discusses self-determination of indigenous and tribal groups by analyzing case law from the Inter-American system and the African Commission. The article concludes that these regions have established the framework for self-determination and must …

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Human Rights And The Environment: Substantive Rights, Dinah L. Shelton Jan 2011

Human Rights And The Environment: Substantive Rights, Dinah L. Shelton

GW Law Faculty Publications & Other Works

This chapter focuses on the relationship between human rights and the environment. The chapter describes multiple sources of human rights and environmental obligations, including international treaties, national law, and the judicial decisions of international courts. Human rights that indirectly call for environmental conservatism include the rights to life, health, privacy, and standard of living. This chapter concludes by noting that governments must balance human rights related to the environment with other concerns such as economic advancement.

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International Human Rights: Problems Of Law, Policy, And Practice, Dinah L. Shelton, Hurst Hannum, S. James Anaya Jan 2011

International Human Rights: Problems Of Law, Policy, And Practice, Dinah L. Shelton, Hurst Hannum, S. James Anaya

GW Law Faculty Publications & Other Works

The introductory chapter of this book discusses how a unifying concern for human dignity led to the establishment of human rights as part of the body of international law. Next, the chapter includes excerpts from multiple writers’ works to employ slavery as a case study to demonstrate how the international community has used the notion of human rights to create binding law. Third, this chapter discusses the philosophical drivers of human rights by including writings from other scholars and the history of the presence of human rights in international law. The chapter concludes that increasing concern for human rights may …

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User Experiments Of A Social, Faceted Multimedia Classification System, Liuliu Fu, Kurt Maly, Elizabeth Rasnick, Harris Wu, Mohammad Zubair Jan 2011

User Experiments Of A Social, Faceted Multimedia Classification System, Liuliu Fu, Kurt Maly, Elizabeth Rasnick, Harris Wu, Mohammad Zubair

Computer Science Faculty Publications

Internet document sharing systems such as Flickr store billions of user-contributed images. Many collections on the Web contain large numbers of multimedia objects such as images. While such systems are designed to encourage user contributions and sharing, they are not well-organized collections on any given subject and are not easy to browse for specific subject matters. We have built a system that systematically organizes a large multimedia collection into an evolving faceted classification. This paper discusses the evaluation of such a system through a number of usage studies in a university setting.

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The Impact Of Negotiator Styles On Bargaining Interactions, Charles B. Craver Jan 2011

The Impact Of Negotiator Styles On Bargaining Interactions, Charles B. Craver

GW Law Faculty Publications & Other Works

This article examines the different techniques and bargaining traits associated with negotiator styles. It explores the Cooperative/Problem Solving, Competititve-Adversarial, and Competitive/Problem-Solving styles to determine which ones are more common among practicing lawyers, and which one is likely to be employed by proficient negotiators.

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Computational Network Analysis Of The Anatomical And Genetic Organizations In The Mouse Brain, Shuiwang Ji Jan 2011

Computational Network Analysis Of The Anatomical And Genetic Organizations In The Mouse Brain, Shuiwang Ji

Computer Science Faculty Publications

Motivation: The mammalian central nervous system (CNS) generates high-level behavior and cognitive functions. Elucidating the anatomical and genetic organizations in the CNS is a key step toward understanding the functional brain circuitry. The CNS contains an enormous number of cell types, each with unique gene expression patterns. Therefore, it is of central importance to capture the spatial expression patterns in the brain. Currently, genome-wide atlas of spatial expression patterns in the mouse brain has been made available, and the data are in the form of aligned 3D data arrays. The sheer volume and complexity of these data pose significant challenges …

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Government Governance And The Need To Reconcile Government Regulation With Board Fiduciary Duties, Lisa M. Fairfax Jan 2011

Government Governance And The Need To Reconcile Government Regulation With Board Fiduciary Duties, Lisa M. Fairfax

GW Law Faculty Publications & Other Works

Corporate governance scandals inevitably raise concerns about the extent to which corporate directors failed in their responsibility to monitor the corporation and its managers, especially in terms of the latter's’ misdeeds. Corporate governance reforms strive to shore up directors' roles by seeking to ensure that boards have sufficient incentives to engage in effective oversight and to hold the boards more accountable. The current financial crisis has ushered in an era of significant government reform of the financial system and involvement in corporate governance matters. Such involvement has increased board of directors' responsibilities but has not reconciled those responsibilities with board …

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Federalism, Lochner, And The Individual Mandate, Peter J. Smith Jan 2011

Federalism, Lochner, And The Individual Mandate, Peter J. Smith

GW Law Faculty Publications & Other Works

The individual mandate provision in the Affordable Care Act requires individuals to obtain minimum essential health insurance coverage. This provision has been the focus of legal attacks on the Act. Opponents of the mandate have contended that Congress lacks power to compel individuals to engage in a private, commercial transaction. These claims are most sensibly understood as libertarian objections - that is, objections to government attempts to regulate certain personal decisions or actions, on the ground that those decisions or actions are for the individual, and only the individual, to make or take. As such, as a doctrinal matter this …

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How Different Are Originalism And Non-Originalism?, Peter J. Smith Jan 2011

How Different Are Originalism And Non-Originalism?, Peter J. Smith

GW Law Faculty Publications & Other Works

The academic debate about originalism remains vibrant and dynamic, and the theoretical case for originalism is more nuanced now than ever before. So nuanced, in fact, that - at least as described by several prominent originalists - originalism is no longer very different, either in theory or in application, from non-originalism. These self-described “new originalists” have begun to contend that the objective original meaning of many of the Constitution’s provisions - including the broad rights-granting provisions in the Fourteenth Amendment - should be ascertained at a very high level of generality. They have also urged recognition of a distinction between …

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The Pentagon Papers Case And The Wikileaks Controversy: National Security And The First Amendment, Jerome A. Barron Jan 2011

The Pentagon Papers Case And The Wikileaks Controversy: National Security And The First Amendment, Jerome A. Barron

GW Law Faculty Publications & Other Works

This Essay focuses on two clashes between national security and the First Amendment - the Pentagon Papers case and the WikiLeaks controversy. The two cases are hardly exact parallels. In the Pentagon Papers case the government was seeking to enjoin publications, asking for the imposition of a prior restraint. In that context, the press received the benefit of the "heavy presumption" against prior restraints. In the WikiLeaks controversy, because the discussion centers on the possibility of a criminal prosecution against Julian Assange, there is no equivalent "heavy presumption" against such a prosecution. In each case, the actual leaker was arrested, …

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Biblical Literalism And Constitutional Originalism, Peter J. Smith, Robert W. Tuttle Jan 2011

Biblical Literalism And Constitutional Originalism, Peter J. Smith, Robert W. Tuttle

GW Law Faculty Publications & Other Works

Critics of constitutional originalism have often described originalists as “fundamentalists” or “literalists” as a way of discrediting originalism. This comparison has obvious rhetorical force because it tends implicitly to taint originalism with guilt by association, given views in the academy of Protestant fundamentalism. But originalism’s critics are not the only ones who appear to have noticed the similarities between the two interpretive approaches; when they have entered the arena of policy and judicial politics, proponents of biblical literalism have generally embraced originalism as the correct approach to constitutional interpretation.

It is not surprising that both critics of constitutional originalism and …

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The Crow's Nest A Family Memoir, Virginia Neal Drago Jan 2011

The Crow's Nest A Family Memoir, Virginia Neal Drago

Honors Theses

For my thesis, I have created a family memoir about my family’s summers spent on Mobile Bay in Mobile, Alabama. Through interviews with family members, research of photographs, and delving into my own memories and experiences during my childhood, I have resurrected this past existence we had on the Bay and brought it to life once more through my thesis. The memoir is meant to be a journey through death that culminates in an unexpected discovery of life. By reexamining this past part of my life that I thought was dead, as well as the literal deaths of my grandmother, …

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How (Not) To Censor: Procedural First Amendment Values And Internet Censorship Worldwide, Dawn C. Nunziato Jan 2011

How (Not) To Censor: Procedural First Amendment Values And Internet Censorship Worldwide, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

A growing number of countries censor speech on the Internet-- dictatorships and democracies alike. Free speech advocates deplore this state of affairs and argue for achievement of a worldwide consensus in which all countries accord their citizens nearly unrestricted Internet access. This Utopia of uncensored Internet access is, however, radically different from the current state of affairs and--given the trend toward more, not less, control over Internet access--is not likely to be achieved in the near future. Calls for the rest of the world to adopt the United States’ First Amendment’s version of broad free speech protections are not likely …

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