Law Commons^™

The False Promise Of Custody In Domestic Violence Protection Orders, Laurie S. Kohn

GW Law Faculty Publications & Other Works

This Article reveals the disconnect between the power and the will to enforce the custody and parenting time provisions of protection orders through criminal mechanisms and explores the further infirmity of civil enforcement by illustrating the shortcomings of available relief. Together, these barriers to effective enforcement threaten to render this court-granted protection meaningless and dangerously misleading. The barriers also undermine the many years of advocacy invested to secure these protections in the first place - reforms aimed at protecting victims and children from abusive parents.

This Article explores ways to bring together the will and the power to enforce all …

Money Can’T Buy You Love: Valuing Contributions By Nonresidential Fathers, Laurie S. Kohn

GW Law Faculty Publications & Other Works

This article examines the roots of the disproportionate values the legal system assigns to paternal roles in the family law and child support system, looking to social norms, traditional family law, and the state's interests in the well-being of children. This hierarchy of values reveals itself in the current structure of child support laws and in the enforcement of parenting-time orders on the one hand and child support obligations on the other. The article considers how the allocation of disproportionate values impacts low-income fathers, mothers, children, and the state. The article envisions ways in which the family law system could …

Don't End Or Audit The Fed: Central Bank Independence In An Age Of Austerity, Neil H. Buchanan, Michael C. Dorf

GW Law Faculty Publications & Other Works

The Federal Reserve (“Fed”) is the central bank of the United States. Because of its power and importance in guiding the economy, the Fed’s independence from direct political influence has made it a target of ideologically motivated attacks throughout its history, with an especially aggressive round of attacks coming in the wake of the 2008 financial crisis and ongoing today. We defend Fed independence. We point to the Fed’s exemplary performance during and after the 2008 crisis, and we offer the example of a potential future crisis in which Congress fails to increase the debt ceiling to show how the …

"Bitch," Go Directly To Jail: Student Speech And Entry Into The School-To-Prison Pipeline, Catherine J. Ross

GW Law Faculty Publications & Other Works

This article demonstrates the close connection between student speech that the First Amendment protects (even for students in grades K-12) and penalties school authorities impose on speech they find controversial or offensive. The penalties include deprivation of instructional time—suspension, expulsion and assignment to alternative school for troubled and disruptive youth. The link between the exercise of First Amendment rights and school discipline that starts young people on the school-to-prison pipeline is even more dramatic when on-site police officers arrest students or schools refer them to the juvenile justice system for violating a school speech code – rules imposed by the …

Placing The Government In Fragile Democracies, David Fontana

GW Law Faculty Publications & Other Works

No abstract provided.

Explaining Variations In Bailout Policies: A Review Of Cornelia Woll's The Power Of Inaction, Arthur E. Wilmarth Jr., Kelsey M. Barnes

GW Law Faculty Publications & Other Works

In The Power of Inaction: Bank Bailouts in Comparison (Cornell Univ. Press, 2014), Professor Cornelia Woll asks a question of fundamental importance: "What was the nature of power [that] finance wielded over the fate of the economy and the crisis management in 2008, which affected the lives of so many?" To measure the effective power that the financial industry wielded during the crisis, Woll compares the terms of bailout programs that governments adopted in six countries. She contends that financial institutions were more likely to receive larger amounts of public support, and to make minimal contributions to rescue plans, in …

Incomplete Dispositions, Naomi R. Cahn

GW Law Faculty Publications & Other Works

In Irresolute Testators, Professor Jane Baron provocatively suggests the existence of two distinct types of testators: the rational, autonomous testator who has made deliberate choices about the contents of her will and whose errors, if any, are minor; and the more vulnerable, less resolute testator who may not have actually made the final decisions enshrined in a formal will. To illustrate how these testators appear in wills law, she analyzes how courts apply the doctrines of harmless error and mistake reformation. While the two doctrines appear to be intended to help the resolute testator, courts instead, she suggests, also apply …

Berkshire's Blemishes: Lessons For Buffett's Successors, Peers, And Policy, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

Berkshire Hathaway’s unique managerial model is lauded for its great value; this article highlights its costs. Most costs stem from the same features that yield such great value, which boil down, ironically, to Berkshire trying to be something it isn’t: it is a massive industrial conglomerate run as an old-fashioned investment partnership. An advisory board gives unchecked power to a single manager (Warren Buffett); Buffett makes huge capital allocations and pivotal executive hiring-and-firing decisions with modest investigation and scant oversight; Berkshire’s autonomous and decentralized structure grants operating managers enormous discretion with limited second-guessing; its trust-based culture relies on a cultivated …

What's Warren Buffett's Secret To Great Writing?, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

The gold standard in corporate communications is that of Warren Buffett’s letters to shareholders. When leaders of the National Association of Corporate Directors wanted to understand exactly why they are so valuable, they turned to Lawrence Cunningham, an incomparably informed and knowledgeable expert on the subject, having since 1995 been Buffett’s handpicked compiler and editor of The Essays Warren Buffett: Lessons for Corporate America. The editors of NACD’s quarterly, Directorship, published Cunningham’s article as their cover story in the summer of 2016. They explained:

The legendary chair and CEO of Berkshire Hathaway has nearly perfected the art of writing his …

Stranded Costs And Grid Decarbonization, Emily Hammond, Jim Rossi

GW Law Faculty Publications & Other Works

Over the past half century, energy law has endured many stranded cost experiments, each helping firms and customers adjust to a new normal. However, these past experiments have contributed to a myopic regulatory approach to past stranded cost recovery by: (1) endorsing a preference for addressing all stranded costs only after energy resource investment decisions have been made; and (2) fixating on the firm’s financial costs and protection of investors, rather than on the broader impacts of each on the energy system.

The current transition to decarbonization is already giving rise to stranded cost claims related to existing energy assets …

Technological Innovation, Data Analytics, And Environmental Enforcement, Robert L. Glicksman

GW Law Faculty Publications & Other Works

Technical innovation is ubiquitous in contemporary society and contributes to its extraordinarily dynamic character. Sometimes these innovations have significant effects on the state of the environment or on human health and they have stimulated efforts to develop second order technologies to ameliorate those effects. The development of the automobile and its impact on life in the United States and throughout the world is an example. The story of modern environmental regulation more generally includes chapters filled with examples of similar efforts to respond to an enormous array of technological advances.

This Article uses a different lens to consider the role …

The Eritrean-Ethiopian War (1998-2000), Sean D. Murphy

GW Law Faculty Publications & Other Works

The Eritrean-Ethiopian War of 1998-2000 was a tragic conflict that resulted in a widespread loss of life, as well as other injury and damage, for these two developing countries in the Horn of Africa. A unique feature of this incident is that the December 2000 Algiers agreement ending the conflict provided for the establishment of an Eritrea-Ethiopia Claims Commission (claims commission), charged with deciding claims for loss, damage or injury resulting from a violation of international law committed by either country. One of Ethiopia’s claims was that Eritrea initiated the armed conflict by an illegal use of force. Thus, the …

Introductory Chapter To Elgar Encyclopedia Of Environmental Law: Decisionmaking In Environmental Law, Robert L. Glicksman, Lee C. Paddock

GW Law Faculty Publications & Other Works

This introductory chapter provides an overview of the growth of environmental law and the decision making structures that governments have developed to adopt, administer, and enforce it. It traces the manner in which cooperative federalism and public participation have affected decision making structures in environmental law, primarily in the United States. It summarizes key challenges that policymakers continue to face in designing environmental laws, including choices on the allocation of authority among different levels of government, the appropriate mix of regulatory and non-regulatory tools to use in environmental protection initiatives, efforts to accommodate environmental protection and economic growth objectives, techniques …

Making Black And Brown Lives Matter: Incorporating Race Into The Criminal Procedure Curriculum, Cynthia Lee

GW Law Faculty Publications & Other Works

In this article, Cynthia Lee addresses the issue of incorporating race into the criminal procedure curriculum. She notes that incorporating discussions about race into the curriculum involves some risk, particularly for junior professor of color but even for senior professors of color who might be perceived as promoting a personal agenda. She discusses ways that a law professor of any race who wishes to incorporate issues of race into the criminal procedure curriculum can do so.

Digital Assets And Fiduciaries, Naomi R. Cahn, Christina Kunz, Suzanne Brown Walsh

GW Law Faculty Publications & Other Works

This chapter addresses the appropriate treatment of a person's digital life when the account holder can no longer manage it. As the Internet becomes an increasingly important presence in our daily lives, the law has a significant role to play in determining the management of digital assets upon the account holder's incapacity or death. In the past, people put hard copies of photos in albums, listened to record albums, and paid bills with a stamped envelope. Today, most people use the Internet to store photos, listen to music, and pay bills. Yet few people have considered how to dispose of …

Protection Of Persons In The Event Of Disasters And Other Topics: The Sixty-Eighth Session Of The International Law Commission, Sean D. Murphy

GW Law Faculty Publications & Other Works

The International Law Commission held its sixty-eighth session in Geneva from May 2 to June 10, and from July 4 to August 12, 2016, under the chairmanship of Pedro Comissário Afonso (Mozambique). Notably, the Commission completed on second reading a full set of eighteen draft articles with commentary on the protection of persons in the event of disasters and recommended to the United Nations General Assembly that it elaborate a convention based on the draft articles.

Additionally, the Commission adopted on first reading a complete set of draft conclusions, with commentary, for two topics: identification of customary international law; and …

Towards A Law Of Coworkers, Naomi Schoenbaum

GW Law Faculty Publications & Other Works

A growing body of research reveals what most Americans already know from experience: that our coworkers play a central role in our lives. The significance of coworker relationships is only magnified in an era of expanding work hours in the twenty-four-seven economy. But the law does not reflect this reality, and instead relegates coworkers to the status of legal strangers. This Article argues that the law’s failure to recognize coworker relationships undermines not only these relationships, but also the goals of work law, and makes the case for a law of coworker relationships that would promote the equal, fair, and …

Gender And The Sharing Economy, Naomi Schoenbaum

GW Law Faculty Publications & Other Works

While the sharing economy has been celebrated as a flexible alternative to traditional employment for those with family responsibilities, especially women, it presents challenges for gender equality. Many of the services that are “shared” take place in the context of intimacy, which can have substantial consequences for transacting, particularly by enhancing the importance of identity of both the worker and the customer. Expanding on previous research on intimate work — a critical area that exists largely in limbo between the law of the market and the law of the family — this Article, written for the Cooper-Walsh Colloquium, explores the …

Patent Transfer And The Bundle Of Sticks, Andrew Michaels

GW Law Faculty Publications & Other Works

In the age of the patent troll, patents are often licensed and transferred. A transferred patent may have been subject to multiple complex license agreements. It cannot be that such a transfer wipes the patent clean of all outstanding license agreements; the licensee must keep the license. But at the same time, it cannot be that the patent transferee becomes a party to a complex and sweeping license agreement – the contract – merely by virtue of acquiring one patent. This article attempts to separate the in personam aspects of a license agreement from its effects on the underlying in …

Nonmarriage, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

Now that the Supreme Court has reshaped the laws of marriage, attention is shifting to nonmarriage. The law no longer treats intimate couples who do not marry as either deviant or deprived. Yet, rather than regulate nonmarriage in a systematic way, the law applies two inconsistent doctrines to govern these relationships. This Article is the first to explore the fundamental contradiction in the legal approach to unmarried partners. While the laws governing financial obligations between unmarried couples are moving toward a deregulatory model that radically differs from the status-based regulation of marriage, the laws of custody and support insist on …

Causal Responsibility And Patent Infringement, Dmitry Karshtedt

GW Law Faculty Publications & Other Works

It is not uncommon for multiple parties in the stream of commerce — manufacturers, distributors, end users — to be involved in the infringement of a single patent. Yet courts continue to struggle with such scenarios. Attempts to deal with them — particularly when plaintiffs asserted so-called method patents, which cover specific “steps,” or actions — have produced results that defy commonsense notions of legal responsibility. In method patent cases, the patentee must clear much higher legal hurdles to prevail against a manufacturer who designed and supplied an infringing device than against an end user who simply bought that device …

Copyright's Race, Gender And Age: A First Quantitative Look At Registrations, Robert Brauneis, Dotan Oliar

GW Law Faculty Publications & Other Works

On a per capita basis, do African-American authors produce more copyright registrations than non-Hispanic whites? Do men and women show a within-group bias in choosing co-authors? And what decade in the average musician’s life is the most productive? This article provides answers to these questions – which happen to be yes, yes, and the 20s, respectively – and many more by statistically analyzing the 15 million entries that comprise the Copyright Office’s full record of registered works from 1978 through 2012. It provides a variety of perspectives on individuals’ creativity in modern-day America and on the beneficiaries of our copyright …

Photocopies, Patents, And Knowledge Transfer: 'The Uneasy Case' Of Justice Breyer's Patentable Subject Matter Jurisprudence, Dmitry Karshtedt

GW Law Faculty Publications & Other Works

One aspect of Justice Stephen Breyer’s discomfort with patents, as expressed in his opinion for the Supreme Court in Mayo v. Prometheus and his dissent from the order dismissing certiorari in LabCorp v. Metabolite, is strikingly similar to one of his critiques of copyright law in The Uneasy Case for Copyright, a well-known article he wrote as Professor Breyer more than forty-five years ago. In The Uneasy Case, Breyer argued that the burdens on duplication of technical articles imposed by copyright law restrict the flow of information and prevent scientists from enjoying spillover benefits of published research. His patent opinions …

Infrequently Asked Questions, Edward T. Swaine

GW Law Faculty Publications & Other Works

If appellate advocates could hear from courts about topics that might be raised during oral argument—as opposed to relying solely on their ability to anticipate the issues—might their answers be better? That seems likely, but it is unlikely that research could confirm that, as judicial practice overwhelmingly favors impromptu questioning. Spontaneity may be harmless if the question was predictable, or unavoidable if a judge just thought of the question. But sometimes advocates have to answer challenging questions concerning the law, facts, or implications of a position—questions that help decide the case, either due to the quality of the answer or …

The Case For Symmetry In Antidiscrimination Law, Naomi Schoenbaum

GW Law Faculty Publications & Other Works

Antidiscrimination law faces a fundamental design question: the choice between symmetry and asymmetry. A symmetrical law prohibits discrimination on the basis of a trait for a universal class of persons, and for both “sides” of the trait. An asymmetrical law prohibits discrimination on the basis of one “side” of the trait, and for a limited class of persons. Current law is inconsistent in its design. For example, employment discrimination law prohibits race discrimination symmetrically (everyone is protected, and on the basis of any race), but prohibits disability discrimination asymmetrically (only the disabled are protected, and only on the basis of …

Regulation And The Courts: Judicial Review In Comparative Perspective, Francesca Bignami

GW Law Faculty Publications & Other Works

After a historical survey of the literature, this chapter puts forward a new analytical scheme to capture variation in comparative judicial review. The earliest, and still relevant, classification developed in the scholarly literature turns on the difference between judicial review of administrative action by the ordinary courts in the English common law and by a special body (Conseil d’Etat) connected to the executive branch in the French droit administratif. This is followed chronologically by the contrast that has been drawn by Robert Kagan and public-choice scholars between the litigious and formal American system of law and public policy and the …

Theories Of Civil Society And Global Administrative Law: The Case Of The World Bank And International Development, Francesca Bignami

GW Law Faculty Publications & Other Works

For over two decades, the concept of civil society has informed institutional design in the international realm. Empowering civil society has served as a key rhetorical and policy response to the criticism that the social and economic processes of globalization and the international organizations that have emerged to govern the global realm are illegitimate, elite driven, and anti-democratic. This chapter, which appears in the Elgar Research Handbook on Global Administrative Law, unpacks the concept of civil society with the aim of understanding the institutional reforms that have been undertaken in one important area of global governance—the international development law of …

The Inevitable Legal Pluralism Within Universal Harmonization Regimes: The Case Of The Cisg, Paul Schiff Berman

GW Law Faculty Publications & Other Works

Faced with a world of multiple overlapping normative communities and jurisdictions, law often seeks universal rules and harmonization regimes. Such rules and regimes offer to tame pluralism through the imposition of common codes of conduct. The 1980 Convention on Contracts for the International Sale of Goods (CISG) is a useful example of this phenomenon. Arising from harmonization efforts dating back at least to the 1920s, the CISG purports to solve the problem of jurisdictional overlap and inconsistency in the application of domestic law to cross-border commercial transactions. To its back-ers, the CISG addresses intractable problems of legal uncertainty and forum …

Second Report On Crimes Against Humanity, Sean D. Murphy

GW Law Faculty Publications & Other Works

In July 2014, the U.N. International Law Commission placed the topic “Crimes against humanity” on its current program of work and appointed a Special Rapporteur. According to the topic proposal, the objective of the Commission is to draft articles for what could become a Convention on the Prevention and Punishment of Crimes against Humanity.

In July 2015, based on the Special Rapporteur’s First Report, the Commission provisionally adopted the first four draft articles with commentary. In this Second Report, which will be debated by the Commission during the summer of 2016, the Special Rapporteur proposes an additional six draft articles, …

Dynamic Governance In Theory And Application, Part I, Robert L. Glicksman, David L. Markell

GW Law Faculty Publications & Other Works

This article is the first of two that grapple with a central policy challenge facing the administrative state: how to govern in times of dynamic change, when challenges, and opportunities to address them, are both shifting rapidly. The article suggests that, conceptually, process design that is likely to produce effective regulatory governance requires attention to three key distinct but interrelated variables – the actors who are or should be involved in program implementation in different capacities, the mechanisms (legal and otherwise) available to promote good governance, and the tools available to advance desired results. To demonstrate the value of the …