Law Commons^™

Judicial Innovations To Screen Eyewitness Identifications, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

This article explains how, in State v. Lawson, 291 P.3d 673 (Or. 2012), the Oregon Supreme Court reconsidered the role trial judges must play in screening eyewitness identification. The court recognized the shortcomings of eyewitness evidence, including a high number of wrongful convictions stemming from misidentification, but also recognized that eyewitness identification may be the only evidence connecting a guilty defendant to a crime. In weighing eyewitness identification admissibility questions, Oregon Evidence Code rules (similar to their Federal Rule of Evidence counterparts) 401, 602 and 701 all must be considered by the trial judge.

In The Civic Republic: Crime, The Inner City, And The Democracy Of Arms - Being A Disquisition On The Revival Of The Militia At Large, Robert J. Cottrol, Raymond T. Diamond

GW Law Faculty Publications & Other Works

This Article examines the modern utility of the Second Amendment's guarantee of "the right to keep and bear arms" in light of the phenomenon of modern crime, particularly black-on-black violence in urban America. Although many advocates of gun control have argued that crime in modern cities is a reason for modifying or severely truncating the right to have arms, the Authors argue that the right to have arms and the Second Amendment's notion of a universal militia can be the basis of a new partnership between police and citizens in urban America. This new partnership can, if properly developed, be …

Bargaining In The Shadow Of The Debt Ceiling: When Negotiating Over Spending And Tax Laws, Congress And The President Should Consider The Debt Ceiling A Dead Letter, Neil H. Buchanan, Michael C. Dorf

GW Law Faculty Publications & Other Works

If the debt ceiling is inconsistent with existing spending and taxing laws, what must the President do? In earlier work, we argued that when Congress creates a “trilemma” — making it impossible for the President to spend as much as Congress has ordered, to tax only as much as Congress has ordered, and to borrow no more than Congress has permitted — the Constitution requires the President to choose the least unconstitutional path. In particular, he must honor Congress’s decisions and priorities regarding spending and taxing, and he must issue enough debt to do so. Here, we extend the analysis …

The Use Of Alternative Dispute Resolution Techniques To Resolve Public Sector Bargaining Disputes, Charles B. Craver

GW Law Faculty Publications & Other Works

Labor organizations and employers have used various dispute resolution techniques to assist them with contract negotiations and contractual grievances. They have used negotiation, mediation, and arbitration since the 1800s. When the ADR movement was developed for conventional legal disputes, many of the techniques adopted were derived from the industrial relations movement. As states enacted public sector bargaining laws granting representational rights to state and local government employees, the parties had to determine how to resolve controversies over the terms to be included in new contracts and over grievances arising under existing accords. Most states refused to allow government personnel to …

Natural Gas Fracking Addresses All Of Our Major Problems, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

Politicians and regulators all over the world are debating the merits and demerits of horizontal drilling and fracturing of shale formations to produce natural gas (fracking) and the many legal issues that are raised by fracking. Professor Pierce provides context for those debates by describing the economic, environmental, and geopolitical advantages of fracking.

The Gender/Class Divide: Reproduction, Privilege And The Workplace, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

This article evaluates the relationship between workplace equality and the technology of egg freezing, which allows women to “bank” their eggs until they are ready to use them. As the workplace increasingly rewards education and career investment, middle class women postpone family formation until they have attained a measure of financial security and the maturity to balance dual earner arrangements. Yet, as they age, their reproductive potential diminishes dramatically. By contrast, women who do not complete college (and aren’t even thinking about graduate school) bear children at different times in their life cycles, with less leverage with employers, and different …

Jus Ad Bellum, Values, And The Contemporary Structure Of International Law, Sean D. Murphy

GW Law Faculty Publications & Other Works

In “Religion, Violence, and Human Rights: Protection of Human Rights as Justification for the Use of Armed Force,” 41 Journal of Religious Ethics 1 (2013), James Johnson discusses an important dilemma for contemporary society: when should transnational military force be permitted to protect human rights? Professor Johnson uses the relatively recent doctrine of a “responsibility to protect” as the centerpiece of his paper, characterizing it as a reaction to legal concepts that emerged in the “Westphalian system.” Yet the doctrine, at least as it relates to the use of military force, is not a reaction to that system but, rather, …

National Treatment In Copyright And Related Rights: How Much Work Does It Do?, Robert Brauneis

GW Law Faculty Publications & Other Works

The obligation of national treatment makes an appearance in all five of the major active multilateral treaties concerning copyright and related rights, including the Berne Convention, the Rome Convention, the TRIPS Agreement, the WIPO Copyright Treaty (“WCT”), and the WIPO Performances and Phonograms Treaty (“WPPT”), a group I will collectively call the “five CRR treaties.” It is principally lauded for its substantive bite, as a rule requiring that treaty parties extend protection to non-nationals on the same terms as they do to their own nationals. Yet there are reasons to question whether the national treatment obligations imposed by the five …

The Appropriate Role Of Costs In Environmental Regulation, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

In Whitman v. American Trucking Association, 121 S. Ct. 903 (2001), the Court held that EPA cannot consider costs in any way in setting air quality standards. The Court's opinion raises many more questions than it answers. This article discusses three of those questions: (1) which of three competing canons of constructions should courts use when they interpret ambiguous provisions in regulatory statutes; (2) how can an agency make and defend its line-drawing decisions when it is prohibited from considering costs in any way: and, (3) how can courts review an agency's decisions when the agency is prohibited from considering …

The Financing Of Small Businesses: A Functional Analysis Of Three Legal Models, John Andrew Spanogle Jr.

GW Law Faculty Publications & Other Works

This paper discusses the three legal regimes which furnish models of laws designed to promote the use of moveables and intangibles to finance small businesses. One is the nantissement de fonds de commerce, a device used in the French law which creates a mortgage on a business - or at least some parts of it. The second is the registered charge of the European Bank's Model Law on Secured Transactions, which is modeled in large part on the English financing device called a floating charge. The third is the North American security interest used in Article 9 of the Uniform …

The Family And The Market At Wal-Mart, Naomi Schoenbaum

GW Law Faculty Publications & Other Works

The Supreme Court’s decision in Wal-Mart Stores v. Dukes received much attention for what it means for collective litigation. Far less attention has been paid to what the case reveals about sex discrimination law. This symposium contribution uses an overlooked aspect of the Dukes case — the challenge to Wal-Mart’s relocation policy — as a lens to explore employment discrimination law’s failure to adequately take account of employees’ families in a way that further entrenches the family-market divide and seriously hinders the promise of sex discrimination law.

The challenge to the relocation policy exposes how employment discrimination law simultaneously pays …

Competition Agencies With Complex Policy Portfolios: Divide Or Conquer?, William E. Kovacic, David A. Hyman

GW Law Faculty Publications & Other Works

Antitrust law has been adopted by 120 jurisdictions worldwide. In more than half of these jurisdictions, the agency charged with enforcing antitrust law also has other responsibilities. The assignment of multiple regulatory tasks can affect the performance of a competition agency in complex and subtle ways. We present a framework for analyzing the consequences of creating public bodies with complex policy portfolios. Using examples from across the administrative state, we analyze the forces that shape the content of an agency’s policy duties, and how the portfolio of assigned duties affects the way an agency approaches its assigned tasks, and its …

International Judicial Bodies For Resolving Disputes Between States, Sean D. Murphy

GW Law Faculty Publications & Other Works

This chapter of the forthcoming Oxford Handbook on International Adjudication assesses those international judicial bodies that are established principally to resolve disputes between States, notably the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS) and the World Trade Organization (WTO) Appellate Body. Unlike courts oriented toward regional economic integration or regional human rights, such as the European Court of Justice or the Inter-American Court of Human Rights, these courts and tribunals primarily focus on resolving disputes between States. Contentious cases before these bodies, for the most part, do not involve institutional organs or …

The Past, Present And Future Of The Marital Presumption, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

The marital presumption is deeply rooted in Anglo-American law: a husband and wife are assumed to be the father and mother of any child born during their marriage. With the advent of sophisticated genetic testing, no-fault divorce and changing family structures, however, American states are now questioning the continued validity of the presumption. Paternity can be determined with certainty and much of the stigma associated with the circumstances of a child’s birth has disappeared. In the face of these changes, the presumption has been exposed as a legal fiction without a simple meaning, even as it continues to confer parenthood: …

The Rise Of Directed Verdict: Jury Power In Civil Cases Before The Federal Rules Of 1938, Renée Lettow Lerner

GW Law Faculty Publications & Other Works

Jury practice in the state and federal courts evolved dramatically in the nineteenth and early twentieth century. Around the time of the ratification of the Bill of Rights in 1791, important legal thinkers praised the civil jury as a bulwark against judicial tyranny. By the advent of the Federal Rules of Civil Procedure in 1938, many commentators regarded the civil jury as an antiquated nuisance. Diminishment of the jury and open exercise of judicial power, encouraged in the Federal Rules by procedures such as summary judgment, would not have been possible without earlier changes in jury practice. Two major changes …

Reflections On The Icj Advisory Opinion On Kosovo: Interpreting Security Council Resolution 1244 (1999), Sean D. Murphy

GW Law Faculty Publications & Other Works

In its 2010 advisory opinion on Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, the International Court of Justice was called upon to interpret the meaning and legal effects of Security Council Resolution 1244, which had authorized the deployment of international military forces and civilian administration into Kosovo in the aftermath of NATO’s 1999 bombing campaign against Serbia. The Court’s treatment of Resolution 1244 entailed a rich mosaic of issues, some of which were specific to the situation of Kosovo, but others that have ramifications for the interpretation and application of Security Council …

Regulatory Design In Context, Robert L. Glicksman, David L. Markell

GW Law Faculty Publications & Other Works

This paper offers what we hope is a constructive contribution to the debate about whether legal scholarship is (in)sufficiently tethered to the real world. To the extent there is a disconnect, we believe neither scholars nor the real world of governance are necessarily at fault. Instead, the disconnect stems from a failure to forge connections between theoretical constructs in the academic literature and their applicability to real world conditions. In part, this article is an effort to make such connections through close attention to context in regulatory design.

In an insightful recent article, Agencies as Litigation Gatekeepers, Professor David Freeman …

Citigroup: A Case Study In Managerial And Regulatory Failures, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

Citigroup has served as the poster child for the elusive promises and manifold pitfalls of universal banking. When Citicorp merged with Travelers to form Citigroup in 1998, Citigroup’s leaders and supporters asserted that the new financial conglomerate would offer unparalleled convenience to its customers through “one-stop shopping” for banking, securities and insurance services. They also claimed that Citigroup would have a superior ability to withstand financial shocks due to its broadly diversified activities.

During its early years, Citigroup was embroiled in a series of high-profile scandals, including tainted transactions with Enron and WorldCom, biased research advice, corrupt allocations of shares …

§ 5:33 Waiver Of Privilege — Voluntary Disclosure Or Failure To Claim, Laird Kirkpatrick, Christopher B. Mueller

GW Law Faculty Publications & Other Works

Evidence subject to the attorney-client privilege is protected against compelled discovery or disclosure. However, the privilege can be waived if the client who holds the privilege (or the attorney acting on his behalf) fails to claim the privilege or voluntarily discloses the subject matter of the privileged communication. This Section discusses the law governing privilege waiver by voluntary disclosure or failure to claim the privilege.

§ 5:10 Potential Constitutional Limitations On Claims Of Privilege — The Constitutional Right To Produce Evidence, Laird Kirkpatrick, Christopher B. Mueller

GW Law Faculty Publications & Other Works

Generally under the law a litigant is entitled to every person's evidence in order to pursue a claim or defense. A primary exception to this rule is where the evidence is privileged and hence protected from compelled disclosure. However, even privileged evidence can be compelled to be disclosed in some circumstances, such as where it is critical exculpatory evidence needed by a criminal defendant. This Section discusses the conflict between the law of privilege and a criminal defendant's constitutional right to produce evidence in his defense.

General Law In Federal Court, Bradford R. Clark, Anthony J. Bellia Jr.

GW Law Faculty Publications & Other Works

Conventional wisdom maintains that the Supreme Court banished general law from federal courts in 1938 in Erie Railroad Co. v. Tompkins when the Court overruled Swift v. Tyson. The narrative asserts that Swift viewed the common law as a “brooding omnipresence,” and authorized federal courts to disregard state common law in favor of general common law of their own choosing. The narrative continues that Erie constrained such judicial lawmaking by banishing general law from federal courts. Contrary to this account, Swift and Erie represent compatible conceptions of federal judicial power when each decision is understood in historical context. At the …

The Jus Ad Bellum And The 1998 Initiation Of The Eritrean-Ethopian War, Sean D. Murphy, Won Kidane, Thomas R. Snider

GW Law Faculty Publications & Other Works

From May 1998 to December 2000, Eritrea and Ethiopia engaged in an armed conflict that cost the lives of thousands of individuals, injured thousands more, and displaced tens of thousands of men, women, and children from their homes. In December 2000, the two sides concluded a comprehensive agreement that ended the war. Among other things, the agreement established the Eritrea-Ethiopia Claims Commission. Consisting of five arbitrators, the Commission’s mandate was to “decide through binding arbitration all claims for loss, damage or injury by one Government against the other” that were “related to the conflict” and that “resulted from violations of …

The Expulsion Of Aliens And Other Topics: The Sixty-Fourth Session Of The International Law Commission, Sean D. Murphy

GW Law Faculty Publications & Other Works

This essay analyzes the work of the International Law Commission during its sixty-fourth session in Geneva from May 7 to June 1, and from July 2 to August 3, 2012. The session marked the first year of a new quinquennium (2012-2016), with the Commission having completed its work during the prior quinquennium on four major topics: transboundary aquifers; reservations to treaties; responsibility of international organizations; and effects of armed conflict on treaties. The central topic under discussion during the sixty-fourth session concerned the expulsion of aliens, which led to the adoption on first reading of thirty-two articles, together with commentaries, …

The 'Federal Law Of Marriage': Deference, Deviation, And Doma, W. Burlette Carter

GW Law Faculty Publications & Other Works

The article discusses the history of federal inroads into marriage by examining federal interventions during the nineteenth and early twentieth century, argues that, in some cases but not all, marriages' federal benefits are indeed intended to support natural procreation, argues that DOMA's underlying statutes are key to ascertaining the purposes of federal marriage benefits and burdens, distinguishes sexual orientation discrimination from race discrimination and offers a proposal for dealing with equal protection challenges to denials of marriage rights to same sex couples. The proposal, which depends upon dual standards of review, recognizes the historical denial of family rights to same …

Justice Kennedy’S Use Of Sources Of The Original Meaning Of The Constitution, Gregory E. Maggs

GW Law Faculty Publications & Other Works

The essay concerns one aspect of Justice Kennedy’s jurisprudence, namely, his use of some of the principal sources of the original meaning of the Constitution in his written opinions. By the term “sources of the original meaning of the Constitution,” I refer to the records from the Federal Constitutional Convention of 1787, the records of the state ratifying conventions, the Federalist Papers, dictionaries showing usage of language during the Founding period, and the acts of the First Congress. The goals of this essay are first to identify, quote, and describe passages in which Justice Kennedy has cited these sources, and …

Does International Law Obligate States To Open Their National Courts To Persons For The Invocation Of Treaty Norms That Protect Or Benefit Persons?, Sean D. Murphy

GW Law Faculty Publications & Other Works

In its decisions in the LaGrand and Avena cases, the International Court of Justice (I.C.J. or Court) determined that Article 36 of the Vienna Convention on Consular Relations (VCCR) creates "individual rights" (as opposed to just rights of states) and that the United States has an obligation to provide an individual with meaningful access to U.S. courts to vindicate those rights. Based on those determinations, it might be thought that international law generally obligates a state to open its courts for private persons to vindicate rights or benefits that a treaty accords to them, whether or not the treaty expressly …

Book Review Of The Max Planck Encyclopedia Of Public International Law (Rüdiger Wolfrum, Ed., Oxford University Press, 2012), Sean D. Murphy

GW Law Faculty Publications & Other Works

In 2004, the Max Planck Institute launched yet another generation of its widely-used encyclopedia on public international law, this time entitled the Max Planck Encyclopedia of Public International Law (MPEPIL), under the direction of Rüdiger Wolfrum. As befits a new century, the MPEPIL was first unveiled in an online version in 2008, followed in 2012 by a print version in ten volumes plus an index volume. Even a cursory comparison with the previous version reveals that this compendium is a whole new ball game. In terms of content, only 12 of the prior edition’s articles were taken verbatim into the …

Book Review: Legal Pluralism And Empires, Paul Schiff Berman

GW Law Faculty Publications & Other Works

These are boom times for scholarship on legal pluralism. With the collapse of the bipolar Cold War order and the increasing recognition of transnational and international institutions and networks that operate distinct from nation-states, observers have used legal pluralism as a useful framework for conceptualizing a world of multiple overlapping assertions of authority. This framework challenges traditional international relations and international law scholarship that has long tended to focus almost exclusively on nation-states, their jurisdictional boundaries, and their interests, goals, and strategies. Legal pluralists insist that an assertion of jurisdiction is only one gambit in an ongoing interplay of social …

With Great Power Comes Great Responsibility: Proposed Principles Of Digital Due Process For Ict Companies, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

Information and Communications Technology (ICT) companies like Google/YouTube, Facebook, Yahoo, and Twitter are in control of an enormous amount of expression on the Internet. More so than any individual country, these companies are responsible for making decisions with regard to a vast amount of Internet expression. They host billions of pages of Internet content, while responding on a daily basis to countless requests from countries and individuals around the world to take down content that is deemed objectionable or illegal. These powerful ICT companies have become the de facto sovereigns of cyberspace, with the power to balance freedom of expression …

Introduction, June Carbone, Naomi R. Cahn

GW Law Faculty Publications & Other Works

This is an introduction to a symposium issue that brings together two different sets of paper. The first set of papers were written in honor of Catharine A. MacKinnon, “Legal Feminism: Looking Back, Looking Forward.;” The second set of papers are drawn from a conference on “The Family-Inequality Debate: A Workshop on Coercion, Class, and Paternal Participation."