Law Commons^™

Racial Disparities And The Political Function Of Property, Spencer A. Overton

GW Law Faculty Publications & Other Works

Race theorists have noted that racial discrimination has shaped the existing distribution of economic resources, and have used this observation to justify reparations, to defend affirmative action, and to call for other legal changes that would improve the socioeconomic status of people of color. This Article takes the theorists' observation further. Property has a political function. Racially discriminatory allocation rules not only impose economic and social harms upon people of color, but also impair the ability of these people to engage in political expression and participation through structures such as the privately financed campaign finance system.

Current Issues In The Changing Roles And Practices Of Community Economic Development Lawyers, Susan R. Jones

GW Law Faculty Publications & Other Works

This Article, part of a symposium entitled "Lawyering for a New Democracy," explores current issues related to the changing roles of public interest lawyers engaged in Community Economic Development (CED) in a new democracy. After discussing current issues and trends in CED practice, the author concludes that CED is inherently privatized and is becoming more so with the national emphasis on economic self-sufficiency. The author provides lessons from law school clinical practice of enhanced strategic collaborations and highlights current trends and issues involving technology, leadership development, community organizing, asset accumulation, and social capital. Furthermore, leadership development and community organizing are …

The Middle Way: What Contemporary Liberal Legal Theorists Can Learn From Aristotle, Miriam Galston

GW Law Faculty Publications & Other Works

American legal theorists frequently ask whether and how theorists, citizens, lawmakers, judges, and other public officials can attain truth, correctness, or certainty in their legal and moral views. This essay discusses the views of contemporary liberal legal theorists who have attempted to answer these questions in a way that is neither objectivist nor formalist, on the one hand, nor subjectivist or relativist, on the other, referring to authors that make up this group as theorists of the "middle way." The essay suggests areas in which such legal thinkers might profit from studying Aristotle's writings about ethics and politics. Two approaches …

Regulating Electronic Commerce, Gregory E. Maggs

GW Law Faculty Publications & Other Works

This is not an ordinary law review article. It is a report submitted at the 16th International Congress of Comparative Law, held in Brisbane, Australia, on July 14-20, 2002. The report addresses a number of subjects identified by Dr. Anne Fitzgerald, the General Reporter for the section on Electronic Commerce. The general purpose of the report is to summarize the current state of the law in the United States. At the conference, other reporters summarized the current state of the law in their own countries.

Toward A Jurisprudence Of Cost-Benefit Analysis, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

In his book, The Cost-Benefit State, democratic theorist Cass Sunstein urges regulatory agencies to make decisions based on numerical assessments of regulatory consequences, factoring in variables ranging from effects on consumer prices to lives saved. In this Review, I seek to illustrate Sunstein's conception of cost-benefit analysis and critique this conception by suggesting that cost-benefit analysis could serve a more important role than Sunstein would allow. I also argue for a more active judicial role in scrutinizing agency actions than Sunstein would recommend, though not necessarily a less deferential one. In Part I of this review, I outline Sunstein's defense …

Form Over Substance?: Officer Certification And The Promise Of Enhanced Personal Accountability Under The Sarbanes-Oxley Act, Lisa M. Fairfax

GW Law Faculty Publications & Other Works

Form Over Substance?: Officer Certification and the Promise of Enhanced Personal Accountability under the Sarbanes-Oxley Act, 55 Rutgers L. Rev. 1 (2002), argues that the requirement under the Sarbanes-Oxley Act (the "Act") that particular officers certify the accuracy of the financial information contained in their company's periodic reports fails to alter significantly existing standards of liability for officers who signed or approved such reports prior to the Act's passage. This failure creates cause for concern about the Act's potential to meet its objectives. Indeed, the certification requirement represents one of the Act's principal symbols of officer personal accountability. By demonstrating …

The Sarbanes-Oxley Act As Confirmation Of Recent Trends In Director And Officer Fiduciary Obligations, Lisa M. Fairfax

GW Law Faculty Publications & Other Works

This Article argues that, instead of dramatically altering the responsibilities of corporate officers and directors, Sarbanes-Oxley confirms at least some case law and other recent articulations of management's fiduciary duty. At a minimum, recent allegations regarding corporate misconduct may suggest some degree of confusion on the pat of corporate officers and directors about the manner in which they should comply with their fiduciary duty. By requiring more exacting standards of conduct from these corporate agents, Sarbanes-Oxley may not only clear up that confusion, but also may represent a natural extension of recent pronouncements by Delaware courts, the SEC and other …

Doing Well While Doing Good: Reassessing The Scope Of Directors' Fiduciary Obligations In For-Profit Corporations With Non-Shareholder Beneficiaries, Lisa M. Fairfax

GW Law Faculty Publications & Other Works

Doing Well While Doing Good: Reassessing the Scope of Directors' Fiduciary Obligations in For-Profit Corporations with Non-Shareholder Beneficiaries, 59 Wash. & Lee L. Rev. 414 (2002), explores corporate fiduciary duties in the context of for-profit companies that operate in traditionally non-profit spheres. The rise in "privatization" - a conversion from certain businesses being operated by nonprofit and government entities to operation by for-profit companies - has sparked considerable opposition, particularly when it occurs within industries that deliver some societal good such as health care or education. Opponents claim that for-profit companies cannot pay heed to their social or charitable commitments …

Justice Between Authors, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

Traditionally, authors' copyright rights have been limited in order to promote the progress of science and the useful arts. However, authors today are increasingly employing additional protective measures that arguably are not subject to such limitations. Even if such extra-copyright measures are not limited like copyright protections, several principles underlying the copyright regime support imposing such limits on authors' rights. In this Article, based upon John Rawls's theory of justice as fairness, I develop a theory of justice between generations of authors. This theory requires that the rights of each generation of authors be limited for the benefit of subsequent …

Intergenerational Justice Between Authors In The Digital Age, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

Authors' copyright rights have traditionally been limited, because such limitations were believed to be necessary to advance copyright law's constitutionally-mandated utilitarian purpose - "to promote the progress of science and the useful arts." But authors today - especially authors of digital works - are increasingly turning to extra-copyright measures, including encryption and "clickwrap" licenses, to customize their rights in their works of authorship. Because such privately-ordered rights are arguably outside of copyright law's framework, they are not necessarily subject to its utilitarian mandate, and need not be made subject to limitations imposed by copyright law on authors' rights. Even though …

But Some Are More Equal: Race, Exclusion, And Campaign Finance, Spencer A. Overton

GW Law Faculty Publications & Other Works

Proposed campaign finance reforms and critiques of current campaign finance jurisprudence are incomplete because campaign finance reformers overlook social and historical realities related to race. This Article uses race as an analytical factor to develop a more comprehensive understanding of campaign finance. Past state-sanctioned discrimination has contributed to current racial disparities in property. Under the current campaign finance system, these disparities in property shape the racial distribution of political influence no less than poll taxes, literacy tests, or at-large electoral districts. Further, seemingly neutral campaign finance doctrine threatens to lead to future racial disparities in the political distribution of societal …

Parenthood, Genes, And Gametes: The Family Law And Trusts And Estates Perspectives, Naomi R. Cahn

GW Law Faculty Publications & Other Works

This Article proposes a solution to resolve the legal issues that arise from the disposition of eggs, zygotes, and sperm upon divorce or death. I address two overlapping issues in family law and trusts and estates law: (1) whether the partner seeking procreation may use gametic material over the objections of the other partner and (2) how should the use of donated, willed, or marital gametic material affect the legal determination of parenthood?

In family law cases, courts generally rule in favor of the person seeking to avoid procreation, regardless of any evidence as to the intent of the parties. …

Sharing Accounting's Burden: Business Lawyers In Enron's Dark Shadows, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

A familiar pass-the-buck pas de deus in deal meetings occurs when the accountant says, after an impasse, "that's a legal problem" while the lawyer says "that's an accounting problem." The truth is, both are right; the trouble is, as Enron shows, prevailing professional cultures create a crack between law and accounting that resolute fraud artists exploit, not cultures that emphasize the intersection of law and accounting that should foil would-be fraudsters. As policymakers rush to respond to Enron, this perspective on law and accounting should be appreciated, as should Enron's place in soecity's parade of corporate debacles. At Enron's core …

Patterns Of Drafting Errors In The Uniform Commercial Code And How Courts Should Respond To Them, Gregory E. Maggs

GW Law Faculty Publications & Other Works

This article identifies eight recurring patterns of drafting in the Uniform Commercial Code (UCC). For each of these patterns, and for other idiosyncratic errors, the article recommends specific judicial responses. These responses take advantage of many of the UCC's unique characteristics. While the problem of drafting errors in the UCC may seem minor in light of the model code's high overall quality, the suggested responses can lead to a more efficient and effective application of the statute.

Faithless Wives And Lazy Husbands: Gender Norms In Nineteenth Century Divorce Law, Naomi R. Cahn

GW Law Faculty Publications & Other Works

The article examines the nature of marriage and the expectations of husbands and wives in nineteenth century America by analyzing trial reports of famous nineteenth century divorce cases. The article argues that the textured history of divorce law in the United States shows how the law has affected gendered marital roles through its regulation of divorce. While fault is no longer the focus of divorce, conformity with gendered expectations remains a central aspect of the marital dissolution legal process. In the nineteenth century, conformity benefitted women; if they were the innocent spouse who had taken care of the children, the …

Remedying Societal Discrimination Through The Government's Spending Power, Michael Selmi

GW Law Faculty Publications & Other Works

The Supreme Court has long held that the government cannot use affirmative action to remedy societal discrimination, and this restriction has severely limited the efficacy of governmental affirmative action programs. Indeed, it is not too much to suggest that most affirmative action programs that have been invalidated over the last decade would have been upheld if the government were permitted to remedy societal discrimination. This article develops an argument for how the court can - and in fact does - use its spending power to remedy societal discrimination. The argument is based largely on a series of cases involving government …

A Case For The Twenty-First Century Constitutional Canon: Schneiderman V. United States, David Fontana

GW Law Faculty Publications & Other Works

This Article examines a generally underappreciated 1943 Supreme Court case, Schneiderman v. United States. Schneiderman raises a variety of issues related to disparate subjects, such as the role of courts during wartime, the place of the Constitution in the American "civil religion," constitutional limitations on immigration regulation, and so on. Because this case discusses all of these issues (and had a major impact on the evolution of some of these issues), it is a case of substantial importance and interest that has belonged in the constitutional canon for some time. However, this Article argues that, because of the new issues …

Sites Of Redemption: A Wide-Angle Look At Government Vouchers And Sectarian Service Providers, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

The constitutional issues presented by the use at religious institutions of government-financed vouchers for social services have been addressed repeatedly, but virtually all of the writing in the field focuses exclusively on educational services. Most of that writing, moreover, takes the overly simple view that voucher programs are linear relationships running from government to recipient to service provider. Proponents of such programs argue that the presence of recipients as intermediate decision-makers breaks the link between the state and religion, and therefore solves the constitutional problem of church-state connection. Opponents argue that use of intermediaries is nothing more than "money-laundering," and …

Sounding The Death Knell For In Loco Parentis, W. Burlette Carter

GW Law Faculty Publications & Other Works

The article examines the history of the regulation of student athletes playing intercollegiate athletics through the lens of the in loco parentis doctrine. It argues that the doctrine has been abandoned in the larger college and university context, but continues to survive in the intercollegiate arena. Part I investigates the role of the in loco parentis doctrine in early college and university life. Part II discusses the general demise of the doctrine in the 1960s and 1970s and the resulting expansion of freedoms that came to college and university students. Part III demonstrates how the doctrine is reflected in modern …

Fine-Tuning Acquisition Reform's Favorite Procurement Vehicle, The Indefinite Delivery Contract, Karen Thornton

GW Law Faculty Publications & Other Works

This article provides an assessment of the effectiveness of the efforts to improve efficiency and commercialize government procurement, seven years after the passage of the Federal Acquisition Streamlining Act. The reforms that abolished inflexible rules and empowered a reduced acquisition workforce have been criticized as allowing agencies to obscure the transparency of traditionally rule-bound federal procurement, using sole source methods and bundling to limit competition. This Article asserts the problems associated with indefinite delivery contracting can be alleviated if more attention is devoted to accountability and enhancing contracting officer participation on the acquisition team.

Festo And The Doctrine Of Equivalents: Implications For Patent Infringement Litigation, Martin J. Adelman

GW Law Faculty Publications & Other Works

This article provides an in-depth analysis of the Federal Circuit’s en banc decision in Festo Corporation v. Shoketsu Kinzokukogyo Kabushiki Co., Ltd.Overall, “the Federal Circuit failed to expressly limit the application of the doctrine of equivalents to those accused products or processes that were not reasonably foreseeable at the time of the patent, but did limit the doctrine of equivalents by expanding the reach of the doctrine of prosecution history estoppel.” The article notes that the “key issue[s] left unsettled by Festo [are] the status of prosecution history by argument as well as the meaning of an amended limitation.”

The Legal Status Of The Doha Declarations, Steve Charnovitz

GW Law Faculty Publications & Other Works

This Article evaluates the uncertain legal status of two ministerial declarations approved at the Doha Conference. The Article proceeds by explaining the broad meaning and purpose of ministerial declarations, as well as the specific implications of the Doha Declarations. I conclude that the Doha Declarations may be considered either (1) the political statements or moral commitments of trade ministers or (2) as part of the constitutive process of decision-making by the WTO organization. Under the first view, the WTO Declarations are analogous to G-7 Declarations or the Malmö Declaration of environmental ministers. Under the second view, the Ministerial Conference can …

The Law Of Environmental 'Ppms' In The Wto: Debunking The Myth Of Illegality, Steve Charnovitz

GW Law Faculty Publications & Other Works

This Article explains and appraises the WTO law of Processes and Production Methods (“PPMs”). A better understanding of the law and of how PPMs operate can help governments and stakeholders improve the management of outwardly directed PPMs. Governments presently have divergent views about WTO rules. These diverging views have led to an inside-out debate from which a political consensus cannot easily emerge. This Article examines the relevant WTO case law on the issue of PPMs and concludes that PPMs are, contrary to some commentators, not prohibited by the WTO. Finally, the Article shows how a correct legal reading may enable …

Triangulating The World Trade Organization, Steve Charnovitz

GW Law Faculty Publications & Other Works

This Article presents an analytic method for considering proposals to expand the scope of the WTO. In doing so, the Article organizes competing ideas concerning the rationale for the WTO and shows how varying assumptions can lead to different conclusions on the proper content of international trade law. This Article seeks to advance the debate by comparing these assumptions and also considering the key literature about trade linkage. The Article proceeds in three parts. Part I shows why the purpose of the WTO is not self-evident and how a framework can be useful for improving the debate about the organization's …

The Seventh Amendment Right To A Civil Jury Trial: The Supreme Court Giveth And The Supreme Court Taketh Away, Joan E. Schaffner

GW Law Faculty Publications & Other Works

This article examines the Supreme Court’s jurisprudence relating to the historic Seventh Amendment right to a jury trial. I describe the three-prong analysis that the Court employs, analyze the Court’s decisions that analyze the jury trial, and conclude that the Court’s decisions are consistent with its Seventh Amendment line of cases in which it emphasizes the preservation of the basic right to jury under the first inquiry, while it de-emphasizes the essence and scope of that right under the second and third inquiries.

Trans-Parliamentary Associations In Global Functional Agencies, Steve Charnovitz

GW Law Faculty Publications & Other Works

This article examines a new phenomenon, transparliamentary activism that focuses on particular international issues or international organizations. For example, the Parliamentary Conference on the World Bank. Such parliamentary organizing has a political significance beyond the usual transnational NGO activities because parliamentarians are elected officials. The transparliamentary activism discussed here differs from the traditional interparliamentary association going back over a hundred years. The article discusses the recent developments in the World Trade Organization and the World Bank.

Gender And Negotiation Performance, Charles B. Craver

GW Law Faculty Publications & Other Works

When males and females negotiate with persons of the opposite sex - and people of the same sex - gender-based stereotypes may influence their interactions. Men and women often assume that males are more likely to be competitive, win-lose negotiators who want to maximize their own return. Women are expected to be more accommodating, win-win negotiators who try to preserve relationships by seeking to maximize the joint return achieved by the parties. If these assumptions are accurate, we might expect men to achieve better negotiating results than women. This article explores common gender-based beliefs that might affect bargaining interactions. It …

Review Of Rulemaking, Participation And The Limits Of Public Law In The Usa And Europe By Theodora Th. Ziamou And Review Of Governing By Numbers: Delegated Legislation And Everyday Policy-Making, By Edward C. Page, Francesca Bignami

GW Law Faculty Publications & Other Works

This article reviews two books: Rulemaking, Participation and the Limits of Public Law in the USA and Europe by Theodora Th. Ziamou and Governing by Numbers by Edward C. Page. In Rulemaking, Ziamou compares the law of rulemaking in the United States, Germany, Greece, and England. Ziamou covers the distinction between administrative rules and other administrative acts, the constitutional law of rulemaking, rulemaking procedure, the ability of private organizations to adopt rules that bind themselves and third parties, and judicial review. Readers are left with a better understanding of American and European rulemaking but may not be convinced that Europe …

Rational Custom, Edward T. Swaine

GW Law Faculty Publications & Other Works

This article agrees with recent papers that rational choice analysis may be a useful heuristic for customary international law, which is plagued by an incoherent approach to state interests. The theory's initial application, however, has been flawed and unduly truncated, and I provide additional illustrations from game theory and of customary rules to illustrate the point. Rational choice analysis not only explains why certain customary international law may legitimately be regarded as obligatory, thus redeeming an important legal institution, but also indicates important directions for reform.

The Globalization Of Jurisdiction, Paul Schiff Berman

GW Law Faculty Publications & Other Works

This Article begins by surveying the myriad ways that increasing globalization of communication, travel, and trade, and in particular the rise of the Internet, have forced judges and legal scholars to "adapt" traditional rules for legal jurisdiction to the new economic and social environment. For example, if a person posts content online that is legal where posted but illegal in some place where it is viewed, can that person be subject to suit in the far-off location? How should the International Shoe "minimum contacts" test account for online contacts? Is online activity sufficient to make one "present" in a jurisdiction …