Law Commons^™

Public Safety And The Right To Bear Arms, Robert J. Cottrol, Raymond T. Diamond

GW Law Faculty Publications & Other Works

This article first recontextualizes the Second Amendment debate by examining the two main interpretations of militia clause of the amendment. First, this article examines the two main interpretations of the amendment while pushing the historical lens back to an examination of English law and society. Then, this article surveys the jurisprudence and the interpretation of the right to bear arms throughout American history. This article also addresses the rise of the academic debate and significant legal scholarship. Public Safety concludes with a look at then current and future cases and a call for the expansion of boundaries of the Second …

Why Do Women Lawyers Earn Less Than Men? Parenthood And Gender In A Survey Of Law School Graduates, Neil H. Buchanan

GW Law Faculty Publications & Other Works

Using a dataset of survey responses from University of Michigan Law School graduates from the classes of 1970 through 1996, I find that fathers tend to receive higher salaries than non-fathers (a "daddy bonus"). In addition, mothers earn less than non-mothers (a "mommy penalty"). There is also some statistical support for the inference that there is a penalty associated purely with gender (women earning less than men, independent of parenthood), another result that is unique to the literature. Analyzing full- or part-time status as well as work hours also suggests a key difference between women and men. Those who take …

Regional Protection Of Human Rights (Introduction), Dinah L. Shelton

GW Law Faculty Publications & Other Works

This book focuses on regional approaches to human rights. It discusses regional tools such as treaties, conventions, and case law. The book then discusses state obligations under regional agreements and during various conditions, such as an emergency. Next, the book discusses regional institutions such as courts and the procedures for attempting to receive redress. The book concludes by discussing responses to violations of human rights and looking ahead by examining suggestions for moving forward.

Necessary Subjects: The Need For A Mandatory National Donor Gamete Registry, Naomi R. Cahn

GW Law Faculty Publications & Other Works

This brief article calls for a mandatory national donor gamete registry. It first discusses the history of secrecy in the adoption context before turning to issues involving confidentiality in the donor context. After analyzing the issues involved in maintaining the secrecy of donor gametes, the article ultimately recommends the establishment of a national information registry, similar to that in place in numerous other countries, to keep track of children both through donor egg, embryo, and sperm, as well as the identities of the gamete providers. Participation in the registry would be mandatory for anyone involved in supplying donor gametes. Once …

The Ilo Convention On Freedom Of Association And Its Future In The United States, Steve Charnovitz

GW Law Faculty Publications & Other Works

This paper addresses the status of the international law convention on freedom of association in the United States. Although the United States supported the adoption of the Convention on Freedom of Association (#87) in the International Labour Organization in 1948, the U.S. government has not ratified that Convention. Instead, the Convention has sat on the shelf in the United States Senate since 1949, the longest unratified convention on the treaty calendar of the Senate Foreign Relations Committee. The paper analyzes the disadvantages for the United States in failing to become a party to this important treaty. The paper notes that …

Worker Participation And Social Dialogue At The Work Place Level In The United States, Charles B. Craver

GW Law Faculty Publications & Other Works

This paper discusses the right of private sector employees to influence management decisions that may affect their working conditions. It explores the ability of workers represented by labor organizations to deal with their employers through the collective bargaining process, and through contractual grievance-arbitration procedures with respect to issues arising under current agreements. It notes the decline of unions over the past fifty years, with union membership declining from 35% in the late 1950s to under 7% today. In the absence of formal union representation, employees have no formal right to affect management decisions, even though over 85% of surveyed employees …

The Self-Defensive Cognition Of Self-Defense, Donald Braman, Dan M. Kahan

GW Law Faculty Publications & Other Works

Why do certain self-defense cases - ones, e.g., involving battered women who kill their sleeping abusers, or beleaguered commuters who shoot panhandling minority teens - provoke intense political conflict? The conventional and seemingly obvious answer is that people judge such cases in a politically partisan fashion. This paper, however, suggests a subtler and more complex explanation. Social psychologists have shown that individuals resolve factual ambiguities in a manner supportive of their defining values, both to minimize dissonance and to protect their connection to others who share their commitments. This form of self-defensive cognition, it is submitted, shapes individuals' perceptions of …

Randomized Legal Experimentation, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

Social scientists have performed and analyzed a number of randomized studies of policies, but the legal literature has not addressed whether and how the legal system should incorporate experimental methods. This Article identifies several benefits of randomized legal experimentation and argues that these benefits supports self-executing experiments, whose results would lead to policy changes agreed upon in advance. Randomized experiments can generate information, and self-execution can help ensure that this information affects the policy process. Such experiments may be easier to enact than other legal reforms, because each side of a policy debate may believe that an experiment is likely …

Why Contractor Fatalities Matter, Steven L. Schooner

GW Law Faculty Publications & Other Works

At the end of July 2008, the media reported that 4,600 service members have died in Operations Iraqi Freedom and Enduring Freedom. But reporting only military fatalities understates the human cost of America's engagements in these regions by nearly a fourth. On the modern, outsourced battlefield, the U.S. government increasingly has delegated to the private sector the responsibility to stand in harm's way and, if required, die for America. As of 30 June 2008, more than 1,350 civilian contractor personnel had died in Iraq and Afghanistan, while another 29,000 contractors have been injured; more than 8,300 seriously. Nonetheless, contractor fatalities …

Bridging Data Gaps Through Modeling And Evaluation Of Surrogates: Use Of The Best Available Science To Protect Biological Diversity Under The National Forest Management Act, Robert L. Glicksman

GW Law Faculty Publications & Other Works

The implementation of environmental law and policy typically proceeds in the face of scientific uncertainty. Despite this pervasive uncertainty, Congress has directed environmental and resource management agencies to ground their policy decisions in science. Agencies sometimes cope with the paradox of making science-based decisions in the face of uncertainty by using scientific models or other surrogacy techniques to simulate reality. Such simulation enables agencies to conform to their statutory responsibilities to base decisions on scientific considerations, even though a complete understanding of the relationships between their actions and the resulting environmental effects may be beyond their current capabilities.

This article …

The Gay Panic Defense, Cynthia Lee

GW Law Faculty Publications & Other Works

In this article, I examine the use of gay panic defense strategies in the criminal courtroom. I argue that such strategies are problematic because they reinforce and promote negative stereotypes about gay men as sexual deviants and sexual predators. Gay panic defense strategies are also troubling because they seek to capitalize on unconscious bias in favor of heterosexuality which is prevalent in today's heterocentric society. Most critics of the gay panic defense have proposed that judges or legislatures should bar gay panic arguments from the criminal courtroom. I take a contrary position and argue that banning gay panic arguments from …

Book Review: Outsourcing Sovereignty: Why Privatization Threatens Democracy, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

This is a review of Paul Verkuil's new book: Outsourcing Sovereignty: Why Privatization Threatens Democracy and What we Can Do About It. The book consists of a wide-ranging and well-documented critique of what Verkuil views as excessive reliance on private contractors to perform a variety of inherently governmental tasks, with particular emphasis on military and other national security functions. Verkuil discusses in detail numerous ways in which the U.S. might reduce the scope and severity of the severe problems that excessive reliance on poorly-supervised contractors is now having.

Pierce praises Verkuil's description and documentation of the problem he addresses in …

Legal Constraints On Child-Saving: The Strange Case Of The Fundamentalist Latter-Day Saints At Yearning For Zion Ranch, Catherine J. Ross

GW Law Faculty Publications & Other Works

It may seem counterintuitive, but children in foster care are more likely to achieve permanency if we take the legal rights of their parents seriously. When all state actors, from social workers to judges, consider parental rights before removing children from their families or terminating parental rights, subsequent adoptions are more likely to be insulated from ongoing litigation, or in the worst instance, revocation. I am a strong proponent of children’s rights. In the context of the child welfare system, however, respect for the rights of parents can protect children from unnecessary and frightening disruptions. The doctrine of parens patriae, …

The Work-Family Conflict: An Essay On Employers, Men And Responsibility, Michael Selmi

GW Law Faculty Publications & Other Works

This paper, prepared for a symposium held at the University of St. Thomas Law School, explores an issue that has been largely neglected in the work-family debate, namely why the burden should be on employers to change their practices rather than on men to change theirs. Many of the policy proposals designed to facilitate the balancing of work and family demands require employers to alter their practices by creating part-time work, providing paid leave, or devising ways to limit the penalties women face for taking extended leave. At the same time, the reluctance of men to change their behavior, which …

The Sec's Global Accounting Vision: A Realistic Appraisal Of A Quixotic Quest, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

In the most revolutionary securities law development since the New Deal, the SEC is poised to jettison rules requiring companies to apply recognized US accounting standards by inviting use of a new set of international ones created by a private London-based organization. This radical shift follows decades of gradual movement towards international standards that has gained momentum since 2005 when all listed companies in the European Union were required to use them. For the US, the SEC could give companies the option to use either or establish a medium-term plan to move US companies to international standards within a decade. …

More Than One Cent For Tribute, Gregory E. Maggs

GW Law Faculty Publications & Other Works

This is a book review of Fred S. McChesney, Money for Nothing: Politicians, Rent Extraction & Political Extortion (Harvard University Press 1997).

The Ecology Of Corporate Governance In China, Donald C. Clarke

GW Law Faculty Publications & Other Works

The substantive norms of Chinese corporate governance have been studied extensively inside and outside China. Yet much less attention has been paid to the Chinese institutional environment that determines whether and how far those norms will be made meaningful. While complaints about general lack of enforcement are common, less common are analyzes that concretely tie institutional capacity to specific enforcement problems. This article aims to fill that gap. It surveys a number of state and non-state channels for the enforcement of corporate governance rules and standards in China, from markets to regulatory bodies, looking at the specific capacities of each. …

Emerging Policy And Practice Issues (2007), Steven L. Schooner, Danielle M. Conway

GW Law Faculty Publications & Other Works

This paper, presented at the West Government Contracts Year in Review Conference (covering 2007), attempts to identify the key trends and issues for 2008 in U.S. federal procurement. We bemoan the absence of attention to significant issues by the current Presidential candidates, critique the leadership vacuum that sustains the longstanding and increasingly critical acquisition workforce shortage, and discuss the potentially active legislative agenda in light of the now-Final Report of the Acquisition Advisory Panel (AAP), a blue-ribbon commission mandated by Section 1423 of the Services Acquisition Reform Act (SARA). We also discuss the dramatic post-2000 trend in increased federal procurement …

Beyond Course Evaluations: Yaynay Sheets, Jessica L. Clark

GW Law Faculty Publications & Other Works

Collecting student evaluation data is a common practice among law professors, but the evaluation data can come too late if not collected until the end of a semester. Opportunities for student feedback happen in every class; at the end of each class period, students can evaluate what just happened in class, and professors can use this information to make immediate adjustments to their teaching. This article argues that law teachers should take advantage of these opportunities for collecting student feedback to improve both the students’ learning experience and the teacher’s teaching experience. The article gives an example of one way …

Public Procurement Systems: Unpacking Stakeholder Aspirations And Expectations, Steven L. Schooner, Daniel I. Gordon, Jessica L. Clark

GW Law Faculty Publications & Other Works

Around the world, governments are increasingly becoming focused on improving their public procurement regimes. Significant developments include the establishment of internationally shared norms for public procurement systems, while, at the national level, a number of countries have adopted dramatically new public procurement regimes, and others are experimenting with new procurement vehicles, such as framework agreements and electronic reverse auctions, and new procurement schemes, including public-private partnerships. As each of these changes is contemplated, planned, implemented, and then assessed, government leaders and policy makers need a framework of analysis for decision making - a framework based on public procurement goals and …

Protean Jus Ad Bellum, Sean D. Murphy

GW Law Faculty Publications & Other Works

The jus ad bellum is generally viewed as a static field of law. The standard account is that when the UN Charter was adopted in 1945, it enshrined a complete prohibition on the use of force in inter-state relations, except when action is being taken in self-defense against an armed attack or under authorization of the UN Security Council. Yet it seems likely that in the years to come, many states and non-state actors will increasingly insist upon a different vision of the jus ad bellum, one that conceives of it as more protean in nature.

Protean jus ad bellum …

The United States And The International Court Of Justice: Coping With Antinomies, Sean D. Murphy

GW Law Faculty Publications & Other Works

Since 1946, the United States has had an uneasy relationship with the International Court of Justice (ICJ or World Court or Court). This chapter addresses certain salient aspects of that relationship. Following an introductory Part I, Part II briefly sets forth three "antinomies" (i.e. equally rational but conflicting principles) in U.S. foreign relations that have had important ramifications for the U.S. relationship with the Court from the outset. First, the United States operates on the basis of conflicting principles with respect to the relevance of international law and institutions for U.S. foreign policy. These conflicting principles have been referred to …

Shareholder Democracy On Trial: International Perspective On The Effectiveness Of Increased Shareholder Power, Lisa M. Fairfax

GW Law Faculty Publications & Other Works

Shareholder democracy - efforts to increase shareholder power within the corporation - appears to have come of age, both within the United States and abroad. In the past few years, U.S. shareholders have worked to strengthen their voice within the corporation by seeking to remove perceived impediments to their voting authority. These impediments include classified boards, the plurality standard for board elections, and the inability to nominate directors on the corporation's ballot. Shareholders' efforts have also extended to seeking a voice on the compensation of corporate officers and directors. Advocates of shareholder democracy believe that such efforts are critical to …

Hate Crimes And The War On Terror, Cynthia Lee

GW Law Faculty Publications & Other Works

This chapter, which will be part of a 5 volume treatise entitled, Hate Crimes: Perspectives and Approaches (Barbara Perry ed. forthcoming 2009), situates the private acts of hate violence committed against Arab-Americans, Muslim-Americans, Sikh-Americans, and South Asian-Americans in the aftermath of 9/11 into the broader context of the war on terror. In Part I, after providing some general background information on hate crimes, I discuss some of the hate crimes committed in the aftermath of 9/11. In Part II, I examine two common stereotypes about Arabs and Muslims which likely contributed to the post 9/11 backlash against Arabs and Muslims …

Rating Risk After The Subprime Mortgage Crisis: A User Fee Approach For Rating Agency Accountability, Jeffrey Manns

GW Law Faculty Publications & Other Works

This article argues that an absence of accountability and interconnections of interest between rating agencies and their debt issuer clients fostered a system of lax ratings that provided false assurances on the risk exposure of subprime mortgage-backed securities and collateralized debt obligations. It lays out an innovative, yet practical pathway for reform by suggesting how debt purchasers, the primary beneficiaries of ratings, may bear both the burdens and benefits of rating agency accountability by financing ratings through an SEC-administered user fee system in exchange for enforceable rights. The SEC user fee system would require rating agencies both to bid for …

Net Neutrality, Free Speech, And Democracy In The Internet Age, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

Professor Nunziato's book explains why the growth of the Internet as the most open forum for free expression in history is now threatened by the privatization of the Internet, the gatekeeper control over expression exercised by a handful of corporate owners, and their power to censor what we say and read online. She sets forth how we got to this place and what must be done about it to guarantee meaningful free speech rights in the Internet age.

Coal-Fired Power Plants, Greenhouse Gases, And State Statutory Substantial Endangerment Provisions: Climate Change Comes To Kansas, Robert L. Glicksman

GW Law Faculty Publications & Other Works

State legislatures and environmental agencies have taken the lead in combating climate change, in the absence of leadership by the federal government. The most widely publicized efforts have involved the imposition of emission controls and fuel economy standards on motor vehicles by states such as California. But the states have also targeted stationary sources of greenhouse gases. In particular, they have sought to minimize carbon dioxide emissions from coal-fired power plants. States have used different approaches to reducing greenhouse gas emissions from electric utilities, including the adoption of renewable portfolio standards and cap-and-trade emission control programs. Increasingly, states are also …

Effectiveness Of Government Interventions At Inducing Better Environmental Performance: Does Effectiveness Depend On Facility Or Firm Features?, Robert L. Glicksman, Dietrich Earnhart

GW Law Faculty Publications & Other Works

Environmental agencies have several options for dealing with alleged noncompliance with environmental regulations. These options include pursuit of administrative or judicial civil penalties and injunctions to prevent future violations. Scholars have begun exploring whether these options induce better performance by regulated entities. This Article addresses a largely neglected question: whether a regulated facility's characteristics affect the efficacy of the different enforcement options. The Article stems from a study of compliance by the chemical industry with federal Clean Water Act permits. It assesses whether facility characteristics, including effluent limit level and type, permit modifications, facility size, capacity utilization, discharge volatility, and …

Children And Religious Expression In School: A Comparative Treatment Of The Veil And Other Religious Symbols In Western Democracies, Catherine J. Ross

GW Law Faculty Publications & Other Works

Whether and how to accommodate students' personal religious symbols worn in public schools are part of a mounting global debate. The competing claims of the body politic and the religious or cultural identity of minority groups came to a head in what the French called the "affair of the veil." This chapter examines the problem of the veil from a cross-cultural perspective, comparing the United States to several other western democracies. The comparison involves both legal and cultural premises. In each instance, the analysis must consider the fundamental values of the body politic, the laws and covenants that govern decision-making, …

There Is A There There: How The Zippo Sliding Scale Has Destabilized The Structural Foundation Of Personal Jurisdiction Analysis, Catherine J. Ross

GW Law Faculty Publications & Other Works

In 1997, the Federal District Court for the Western District of Pennsylvania evaluated one in a line of emerging personal jurisdiction cases that raised the question of whether Internet-based contacts with citizens of the forum state can alone establish the defendant purposefully availed himself of the benefits and protections of the forum state. In this unlikely watershed case, Zippo Mfg. Co. v. Zippo Dot Com, the District Court wrangled with the new concept of purposeful availment through electronic contact with the forum state. The court viewed Zippo and its antecedents as components of a new body of personal jurisdiction law: …