Law Commons^™

Prohibited Discrimination In International Law, Dinah L. Shelton

GW Law Faculty Publications & Other Works

This essay assesses how the prohibition of discrimination is understood in contemporary international human rights law. The essay aims to determine whether human rights bodies apply coherent theories when deciding which distinctions are permitted and which are invidious. The essay begins by surveying the provisions of human rights instruments such as the U.N. Charter that call for non-discrimination and equality. Next, the essay examines the jurisprudence of international tribunals and monitoring bodies, including judgments, advisory opinions, general comments, and observations on state periodic reports. The conclusion draws from this body of law a general approach to discrimination in international human …

Which Original Meaning Of The Constitution Matters To Justice Thomas?, Gregory E. Maggs

GW Law Faculty Publications & Other Works

This essay was published as part of a symposium hosted by the New York University Journal of Law and Liberty in March 2009. The journal citation is: Gregory E. Maggs, Which Original Meaning Matters to Justice Thomas?, 4 N.Y.U. J. L. & Liberty 494 (2009).

The essay addresses a basic question about Justice Clarence Thomas’s originalist jurisprudence. When Justice Thomas looks for the original meaning of the Constitution, does he seek (a) the meaning intended by the Framers at the Constitutional Convention in Philadelphia (“original intent”), (b) the meaning as understood by the delegates to the thirteen state ratifying conventions …

Rethinking Free Speech And Civil Liability, Daniel J. Solove, Neil M. Richards

GW Law Faculty Publications & Other Works

One of the most important and unresolved quandaries of First Amendment jurisprudence involves when civil liability for speech will trigger First Amendment protections. When speech results in civil liability, two starkly opposing rules are potentially applicable. Since New York Times v. Sullivan, the First Amendment requires heightened protection against tort liability for speech, such as defamation and invasion of privacy. But in other contexts involving civil liability for speech, the First Amendment provides virtually no protection. According to Cohen v. Cowles, there is no First Amendment scrutiny for speech restricted by promissory estoppel and contract. The First Amendment rarely requires …

Litigating Animal Disputes: A Complete Guide For Lawyers (Introduction), Joan Schaffner, Julie L. Fershtman

GW Law Faculty Publications & Other Works

This chapter introduces the topics discussed throughout the book and describes the development of the field of animal law. Most of the issues pertain to state law, and the introduction notes that the book provides sample documents that practitioners will find useful.

The New Legal Pluralism, Paul Schiff Berman

GW Law Faculty Publications & Other Works

Scholars studying interactions among multiple communities have often used the term legal pluralism to describe the inevitable intermingling of normative systems that results from these interactions. In recent years, a new application of pluralist insights has emerged in the international and transnational realm. This review aims to survey and help define this emerging field of global legal pluralism. I begin by briefly describing sites for pluralism research, both old and new. Then I discuss how pluralism has come to be seen as an attractive analytical framework for those interested in studying law on the world stage. Finally, I identify advantages …

The Future Of Shareholder Democracy, Lisa M. Fairfax

GW Law Faculty Publications & Other Works

This Article seeks to ascertain the impact of the Securities and Exchange Commission's rejection in 2007 of a proxy access rule, a rule that would have required corporations to include shareholder-nominated candidates on the ballot. On the one hand, the SEC's rejection appears to be a stunning blow to the shareholders' rights campaign because many shareholders' rights advocates have long considered access to the corporate ballot as the "holy grail" of their campaign for increased shareholder power. On the other hand, some corporate experts maintain that characterizing proxy access as the indispensable ingredient for sufficient shareholder influence fails to appreciate …

America's New Climate Unilateralism: A Better Approach To Copenhagen, Steve Charnovitz

GW Law Faculty Publications & Other Works

This article criticizes the American Clean Energy and Security Act, a bill passed by the U.S. House of Representatives in June 2009 that effectively taxes importers of various projects from specific countries. Although the House tried to justify this fee as the best way to avoid carbon leakage, defined as a significant increase in the release of greenhouse gases in other countries, I argue that this bill is protectionist and creates unrealistic expectations as to how other countries will react to the United States’ attempt to establish unilateral control over such charges. I predict that a WTO dispute panel would …

Judicial Citation To Legislative History: Contextual Theory And Empirical Analysis, Michael B. Abramowicz, Emmerson H. Tiller

GW Law Faculty Publications & Other Works

Judge Leventhal famously described the invocation of legislative history as "the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one's friends." The volume of legislative history is so great and varied, some contend, that judges cite it selectively to advance their policy agendas. In this article, we employ positive political and contextual theories of judicial behavior to examine how judges use legislative history. We consider whether opinion-writing judges, as Judge Leventhal might suggest, cite legislative history from legislators who share the same political-ideological perspective as the opinion-writing judge? Or do judges make …

Cartels As Two-Stage Mechanisms: Implications For The Analysis Of Dominant-Firm Conduct, William E. Kovacic

GW Law Faculty Publications & Other Works

Cartels often act like single dominant firms. Because there are a number of difficulties in determining market effects of single dominant firms, this article proposes that enforcement policy recognize the connection between cartels and firms engaged in monopolization. The resulting insight would be useful to determine whether or not cartel conduct should be viewed with suspicion when engaged in or by a dominant firm in a similar industry. Many cartels do not focus solely on suppressing interfirm rivalry; rather, many operate as two-stage mechanisms: the first stage consists of reaching a consensus on a plan to restrict output and curb …

A Historical Perspective On Parental Alienation Syndrome And Parental Alienation, Joan S. Meier

GW Law Faculty Publications & Other Works

Claims of parental alienation syndrome (PAS) and parental alienation have come to dominate custody litigation, especially where abuse is alleged. While much psychological and legal literature has critiqued PAS, and leading researchers as well as most professional institutions have renounced the syndrome concept, alienation as a parental behavior or child’s condition continues to be extensively investigated and credited in research and forensic contexts. This article reviews the history of PAS, both as posited by its inventor, Richard Gardner, and as used and applied in courts, suggesting that it not only lacks empirical basis or objective merit, but that it derives …

Saving The Unitary Executive Theory From Those Who Would Distort And Abuse It: A Review Of The Unitary Executive, By Steven G. Calabresi And Christopher Yoo, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

Calabresi and Yoo make three important contributions to the literature on separation of powers in their new book. First, they seek to rescue the unitary executive theory from the Bush Administration lawyers who have discredited the theory in the eyes of many by relying on it to support outlandish claims of presidential power that are unrelated to the unitary executive theory. Second, they make a persuasive case for the unitary executive theory by explaining why a president must have the power to remove executive branch officers and to control policy making in the executive branch. Third, they document the ways …

Perennial Outsiders: The Educational Experience Of Turkish Youth In Germany, Catherine J. Ross

GW Law Faculty Publications & Other Works

'When you talk about the debate on Turkey’s E.U. membership,' a German of Turkish origin who serves in the Parliament of the European Union explains, 'it immediately becomes a talk about head-scarf issues and building mosques.' This is in part because Western Europe has long considered itself a 'Christian Club.' The treatment of second-generation Turks in Germany and other European countries offers a window into the obstacles that must be confronted and overcome before Turks gain full equality in Europe. Totaling about four million, persons of Turkish origin make up the largest immigrant group in Europe, and virtually all of …

The New Federal Corporation Law?, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

Could a preemptive federal incorporation law today assume the enabling character of traditional state corporation law, instead of the mandatory flavor typical of much federal securities regulation? Does global competition mean that the US should both preempt state corporation law and adopt a flexible, principles-oriented approach to business regulation? This essay, commenting on Robert Ahdieh’s Trapped in a Metaphor: The Limited Implications of Federalism for Corporate Governance, shows how this surprising approach is plausible and may be desirable but also that it is not politically likely in the current environment. The intellectual basis for a preemptive, enabling, and flexible federal …

Treatment Differences And Political Realities In The Gaap-Ifrs Debate, Lawrence A. Cunningham, William W. Bratton

GW Law Faculty Publications & Other Works

The Securities Exchange Commission has introduced a Roadmap that describes a process leading to mandatory use of IFRS by domestic issuers by 2014. The SEC justifies this initiative on the grounds that global standardization yields cost savings and an ultimate gain in comparability, facilitating the search for global opportunities by U.S. investors and making U.S. capital markets more attractive to foreign issuers.

This paper enters an objection, noting that the stakes include more than the choice of the framework for standard setting. The accounting treatments themselves are at issue, treatments that for the most part concern domestic reporting firms and …

The Case For Preferring Patent-Validity Litigation Over Second-Window Review And Gold-Plated Patents: When One Size Doesn't Fit All, How Could Two Do The Trick?, F. Scott Kieff

GW Law Faculty Publications & Other Works

Complaints about frivolous patents abound in academic, business, and policy circles, and the focus of blame is usually on the large number of junk patents that have issued from the Patent Office that are actually invalid. The underlying cause is said to be the relatively modest examination performed by the Patent Office. Most popular proposals for change suggest methods for segregating patents into two or so bundles based on whether the patents should be subject to closer examination. A so-called “second window of review” has been proposed to allow competitors to make the choice of which patents get closer examination; …

How Not To Invent A Patent Crisis, F. Scott Kieff, Henry E. Smith

GW Law Faculty Publications & Other Works

This short essay written for a broad audience addresses the problems that are at the center of current debates in academic and policy circles about the patent system. Most current patent reform proposals are designed to give officials and courts more power to weaken or eliminate ‘‘unworthy’’ patents and take primary aim at so-called patent trolls. This essay argues that in light of the rapid, and excessive, changes that have already occurred in the courts, what patent law needs is a tweaking of existing safety valves and processes - not opening the floodgates to more discretion and uncertainty.

The Second American Revolution In The Separation Of Powers, David Fontana

GW Law Faculty Publications & Other Works

The American Constitution creates three branches of government and ensures that there will be sufficiently great amounts of ideological diversity among these branches of government. Despite this regime ensuring external heterogeneity, the American system, uniquely among the world's major constitutional democracies, rarely creates the same degree of heterogeneity at the highest levels of the Executive Branch that it does among the highest levels of the various branches of government. This Article discusses the distinctiveness of the homogeneous high-level American Executive Branch and the events that led to such a situation. At the first key moment defining the separation of powers …

Access To Courts And Preemption Of State Remedies In Collective Action Perspective, Robert L. Glicksman, Ricard Levy

GW Law Faculty Publications & Other Works

Preemption of common law remedies for individual injuries such as harm to health raises fundamental questions about the proper allocation of authority between the federal and state governments and about the role of courts in interpreting statutes and providing remedies for those who suffer injuries. Developing a workable framework for analyzing what we call “remedial preemption” issues can help to ensure an appropriate accommodation of the federal and state interests at stake and promote consistent application of preemption doctrine to state judicial remedies. This article applies a “collective action” framework for preemption analysis to the issue of remedial preemption. Our …

Outsourcing Immigration Compliance, Eleanor Marie Brown

GW Law Faculty Publications & Other Works

Immigration is a hot button issue about which Americans have sent a clear message. They prefer not to admit more aliens until the government is able to credibly screen for entrants who will abide by the terms of admission and sanction those who do not. While immigration debates now focus almost entirely on undocumented workers, they have overshadowed another critical, yet poorly understood challenge: designing institutions to properly screen for aliens who are visa-compliant and sanction non-compliant aliens. Because failed guest worker programs unquestionably increase the size of the undocumented population, this article addresses the difficulty of institutional design by …

Criminal Law: Cases And Materials, Cynthia Lee, Angela Harris

GW Law Faculty Publications & Other Works

This casebook addresses the fundamental topic of criminal law. It examines how various justifications define their criminal offenses, as well as the basic elements common to crimes in the Anglo-American tradition. This casebook includes extensive discussion of the elements of, and defenses against, particular crimes such as murder, rape, and burglary.

The authors also examine criminal law’s role within the American legal system. In doing so, the casebook introduces readers to the interplay between criminal law and issues of morality. As such, the authors approach criminal law as a system of cultural meaning, and more specifically, Anglo-American criminal law as …

Book Review Of Jeremy Scahill, Blackwater: The Rise Of The Most Powerful Mercenary Army (2007/2008) And From Mercenaries To Market: The Rise And Regulation Of Private Military Companies (Simon Chesterman & Chia Lehnardt, Eds., 2008), Gregory E. Maggs

GW Law Faculty Publications & Other Works

This is a review of two books: Jeremy Scahill, Blackwater: the Rise of the Most Powerful Mercenary Army (2007/2008) and From Mercenaries to Market: the Rise and Regulation of Private Military Companies (Simon Chesterman & Chia Lehnardt, eds., 2008). Each book concerns the increasing use of contractors in military operations.

Family Classes: Rethinking Contraceptive Choice, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

The political attention paid to moral values - in the context of the high profile fights over abortion, homosexuality, and abstinence education - has developed over the past quarter century in ideological terms as though race and class no longer existed. In fact, the changing understandings that attend family formation reflect a long term shift in the pathways to middle class life which has created a new technocratic elite - an elite that invests heavily in both men and women’s advanced degrees, and has remade family life to its advantage. The success of the new model, which we call the …

The International Legality Of U.S. Military Cross-Border Operations From Afghanistan Into Pakistan, Sean D. Murphy

GW Law Faculty Publications & Other Works

To date, U.S. cross-border operations from Afghanistan into Pakistan have taken three forms: the use of Predator drones to target Al Qaeda fighters (although such drones may be launched solely from within Pakistan); the "hot pursuit" of militants who engaged in raids from Pakistan against U.S. and allied forces in Afghanistan, as well as the Afghan government; and the deployment of special operations forces into Pakistan as a means of striking at Al Qaeda. These types of cross-border operations clearly implicate the jus ad bellum, in that they entail one state projecting highly coercive military force into another state. Arguably …

Science, Politics, Law And The Arc Of The Clean Water Act: The Role Of Assumptions In The Adoption Of A Pollution Control Landmark, Robert L. Glicksman, Matthew R. Batzel

GW Law Faculty Publications & Other Works

This article examines the assumptions upon which Congress relied in enacting the 1972 Clean Water Act and the extent to which they have been borne out or belied as the federal and state governments have implemented their statutory responsibilities in the quest to achieve acceptably clean water. It traces the development of federal water pollution control legislation before 1972, highlighting the deficiencies that contributed to the need for a new approach in 1972. It then examines the scientific and technical, political, and legal assumptions that helped shape the 1972 Clean Water Act in an effort to determine whether the failure …

Living Originalism, Peter J. Smith, Thomas Colby

GW Law Faculty Publications & Other Works

Originalists routinely argue that originalism is the only coherent and legitimate theory of constitutional interpretation. This Article endeavors to undermine those claims by demonstrating that, despite the suggestion of originalist rhetoric, originalism is not a single, coherent, unified theory of constitutional interpretation, but is rather a disparate collection of distinct constitutional theories that share little more than a misleading reliance on a common label. Originalists generally agree only on certain very broad precepts that serve as the fundamental underlying principles of constitutional interpretation: specifically, that the “writtenness” of the Constitution necessitates a fixed constitutional meaning, and that courts that see …

Courts, Clergy, And Congregations: Disputes Between Religious Institutions And Their Leaders, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

For nearly forty years, the courts have barred a variety of lawsuits by clergy against their religious entity-employers. These suits frequently involve matters of civil rights, such as sex-based discrimination in employment, but they also involve claims of defamation, violation of fair labor standards, and breach of employment contracts, among others. To justify the barriers to these suits, courts typically rely on concepts drawn from the First Amendment's Religion Clauses. In particular, courts frequently invoke theories of free exercise of religion by religious institutions, or notions of "excessive entanglement" between church and state, to justify this line of case law. …

Eight Is Enough, Naomi R. Cahn, Jennifer M. Collins

GW Law Faculty Publications & Other Works

On January 26, 2009, the nation's second set of live-born octuplets was delivered. The public fascination with this event quickly turned ugly when the media revealed that the mother was thirty-three year-old Nadya Suleman, who is single, unemployed, and already caring for six children under the age of eight.

The cultural backlash against Suleman has focused on three separate issues. The first revolves around Suleman herself, and her ability as a single, unemployed mother to parent fourteen young children successfully. A second set of concerns revolves around the medical procedures at her fertility clinic. How could the clinic agree to …

The End Of Corporate Law, Dalia Tsuk Mitchell

GW Law Faculty Publications & Other Works

This article examines how corporate law, specifically the rules applicable to the allocation of power among directors, executives, and shareholders, has become ineffective as a means of regulating corporate power. I argue that in the course of the twentieth century corporate law has been used first to legitimate corporate power and then to exempt those exercising it from liability. The article focuses on jurists’ responses to the growth of the publicly held corporation in the early twentieth century, their midcentury attempts to create corporate democracy, and their ultimate turn to markets as the means of regulating corporate power.

Cases And Materials On Patent Law, Martin J. Adelman, Randall R. Rader, John R. Thomas

GW Law Faculty Publications & Other Works

This casebook provides a thorough overview of the fundamentals of U.S. patent law. The book is organized in fourteen chapters. The casebook starts with the current statute in Title 35 of the United States Code. It then considers the requirement of “usefulness” necessary to receive patent protection. The book proceeds to explain the requirement of “novelty” as well as the “nonobviousness standard.” The book also examines the various roles of the United States Patent and Trademark Office (“USPTO”), as well as the basics of the patent acquisition process.

After its discussion of the USPTO, the book provides an overview of …

What Do We Owe Future Generations?, Neil H. Buchanan

GW Law Faculty Publications & Other Works

In the United States, it is common for legal scholars, economists, politicians and others to claim that we are selfishly harming "our children and grandchildren" by (among many other things) running large government budget deficits. This article first asks two broad questions: (1) Do we owe future generations anything at all as a philosophical matter? and (2) If we do owe something to future generations, how should we balance their interests against our own? The short answers are "Probably" and "We really are not sure."

Finding only general answers to these general questions, I then look specifically at U.S. fiscal …