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 …

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 …

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. …

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 …

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: …

The Importance Of An Independent Bar, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

This paper, presented at International Bar Association's 10th Transnational Crime Conference in Washington, D.C., on June 9, 2007 begins from the premise that, as the world becomes more complex and therefore more dangerous, governments seek to limit individual rights in the name of crime control and/or national security. The paper cautions that we must always keep in mind that individual rights once lost are not easily regained. Accordingly, the unique and important role of an independent bar in protecting and defending liberty is more, not less, important than ever before. Thus, the efforts of the lawyers, military and civilian, to …

Interpreting The Americans With Disabilities Act: A Case Study In Pragmatic Judicial Reconstruction, Michael Selmi

GW Law Faculty Publications & Other Works

This article challenges the prevailing academic consensus regarding the Supreme Court's interpretation of the Americans With Disabilities Act ("ADA"). In a series of cases over the last decade, the Supreme Court has sharply limited the scope of the statute by narrowly defining what constitutes a disability, and most commentators have attributed the cases to a judicial backlash or a lack of empathy for the disabled. This article offers a counter narrative. Although the Supreme Court's interpretations have plainly narrowed the scope of the statute, and without regard to congressional intent, I suggest that the decisions are largely consistent with congressional …

Intellectual Property For Market Experimentation, Michael B. Abramowicz, John F. Duffy

GW Law Faculty Publications & Other Works

Intellectual property protects investments in the production of information, but the literature on the topic has largely neglected one type of information that intellectual property might protect: information about the market success of goods and services. A first entrant into a market often cannot prevent other firms from free-riding on information about consumer demand and market feasibility. Despite the existence of some first-mover advantages, the incentives to be the first entrant into a market may sometimes be inefficiently low, thereby giving rise to a net first-mover disadvantage and discouraging innovation. Intellectual property may counteract this inefficiency by providing market exclusivity, …

Stemming The Tide Of Law Student Depression: What Law Schools Need To Learn From The Science Of Positive Psychology, Todd Peterson, Elizabeth Waters Peterson

GW Law Faculty Publications & Other Works

A growing body of literature shows that law students exhibit unique signs of psychological distress, including elevated levels of depression, stress, and anxiety. Law students also report significantly higher incidences of alcohol and drug abuse than their peers at other graduate schools. The article assesses the programs that 75 top law schools currently use to combat these alarming trends and finds that they are primarily reactive and that they do not sufficiently address the source or the scope of the problem. This article explores some of the ways in which positive psychology may be uniquely suited to address this student …

Biased Assimilation, Polarization, And Cultural Credibility: An Experimental Study Of Nanotechnology Risk Perceptions, Donald Braman, Dan M. Kahan, Paul Slovic, John Gastil, Geoffrey L. Cohen, Douglass A. Kysar

GW Law Faculty Publications & Other Works

We present the results from the second in a series of ongoing experimental studies of public perceptions of nanotechnology risks. Like the first study, the current one found that members of the public, most of whom know little or nothing about nanotechnology, polarize along cultural lines when exposed to information about it. Extending previous results, the current study also found that cultural polarization of this sort interacts with the perceived cultural identities of policy advocates. Polarization along expected lines grew even more extreme when subjects of diverse cultural outlooks observed an advocate whose values they share advancing an argument they …

The Federal Marriage Amendment And The False Promise Of Originalism, Thomas Colby

GW Law Faculty Publications & Other Works

This Article approaches the originalism debate from a new angle - through the lens of the recently defeated Federal Marriage Amendment. There was profound and very public disagreement about the meaning of the FMA - in particular about the effect that it would have had on civil unions. The inescapable conclusion is that there was no original public meaning of the FMA with respect to the civil unions question. This suggests that often the problem with originalism is not just that the original public meaning of centuries-old provisions of the Constitution is hard to find (especially by judges untrained in …

Cultural Cognition And Synthetic Biology Risk Perceptions: A Preliminary Analysis, Donald Braman, Gregory N. Mandel, Dan M. Kahan

GW Law Faculty Publications & Other Works

We describe the results of a study to determine the synthetic-biology risk perceptions of a large and diverse sample of Americans (N = 1,500). The survey found that hierarchical, conservative, and highly religious individuals - one who normally are skeptical of claims of environmental risks (including those relating to global warming) - are the most concerned about synthetic biology risks. We offer an interpretation that identifies how selective risk-skepticism and risk-sensitivity can convey a cultural commitment to traditional forms of authority.

Book Review Of Gatekeepers: The Professions And Corporate Governance By John C. Coffee, Jr., Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

This is a short review of Gatekeepers by John C. Coffee, Jr.

Sustainable Federal Land Management: Protecting Ecological Integrity And Preserving Environmental Principal, Robert L. Glicksman

GW Law Faculty Publications & Other Works

This article explores the application of the principles of sustainability to management of lands and resources under the jurisdiction of the U.S. Forest Service and the Bureau of Land Management. These two agencies operate a mandate to manage the resources under their control to achieve sustained yield. In this context, sustainability has operated to date primarily in an aspirational fashion, as a broad objective of public land management, rather than as a useful management tool or an enforceable constraint on agency management discretion. The article urges the adoption of amendments to the laws under which the Forest Service and the …

Where Is Criminal Justice In This Presidential Year?, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

This article notes that throughout the presidential campaigns there has been little emphasis on criminal justice and few serious proposals by candidates for changing or improving the way in which the federal government enforces criminal law. There has been little discussion about the respective roles that the federal government and the states should play in law enforcement. The author calls for the next president to convene an inclusive national congress on criminal justice. He encourages the president to bring together prosecutors, defense counsel, judges, legislators, law enforcement, correctional officials, probation and parole officers, academics, victims advocacy groups, other public interest …

Climate Change "Crisis" - Struggling For Worldwide Collective Action, Lisa M. Schenck

GW Law Faculty Publications & Other Works

Global climate change due to increased levels of atmospheric greenhouse gases caused by human activity has the potential to threaten life on earth. International cooperation is required to effectively address this threat; however the climate crisis represents a classic collective action problem in response to overexploitation of a global commons. This article explains the global climate change issue, traces efforts to confront it, and argues that inherent difficulties plague collective responses to global commons problems. It pinpoints individual reasons for collective action failures, examines background economic and scientific problems, and analyzes how group factors such as strategy and coalition building …

The Future Of Nanotechnology Risk Perceptions: An Experimental Investigation Of Two Hypotheses, Donald Braman, Dan M. Kahan, Paul Slovic, John Gastil, Geoffrey L. Cohen

GW Law Faculty Publications & Other Works

This paper reports the results of an experiment designed to test competing conjectures about the evolution of public attitudes toward nanotechnology. The rational enlightenment hypothesis holds that members of the public will become favorably disposed to nanotechnology as balanced and accurate information about it disseminates. The cultural cognition hypothesis, in contrast, holds that members of the public are likely to polarize along cultural lines when exposed to such information. Using a between-subjects design (N = 1,862), the experiment compared the perceptions of subjects exposed to balanced information on the risks and benefits of nanotechnology to the perceptions of subjects exposed …

The Cross At College: Accommodation And Acknowledgment Of Religion At Public Universities, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

In the fall of 2006, President Gene Nichol of the College of William & Mary decided that the college - a public institution - should no longer display a cross on the altar table of the college's Wren Chapel. He ordered the cross moved to a back room, from which it could be returned to the altar table during Christian worship. This decision sparked an outcry from many Christian conservatives, who asserted that President Nichol was undermining the college's historical legacy. After a period of campus furor, a special Committee proposed and the President accepted a compromise - the cross …

Patent Law In A Nutshell, Martin J. Adelman, Randall R. Rader, Gordon P. Klancnik

GW Law Faculty Publications & Other Works

This book provides a concise description of the fundamentals of U.S. patent law. The book is organized in sixteen chapters, covering topics such as the foundations of patent law, patent acquisition, anticipation, patent eligibility, patent claims, construction, and remedies. The book discusses the key statutes, rules, and cases that have shaped present-day patent law doctrine.

Revitalizing The U.S. Compliance Power, Steve Charnovitz

GW Law Faculty Publications & Other Works

This essay provides a commentary on Medellin v. Texas, where the Supreme Court invalidated a presidential memorandum directing states to comply with a judgment of the International Court of Justice. As a consequence of Medellin, the president and the courts may now at times be powerless to achieve compliance with a U.S. treaty. This essay considers how the U.S. compliance power can be revitalized after Medellin. Part I critiques the approach taken by the Court in Medellin and shows that there was an alternative interpretation of the United Nations Charter and the U.S. Constitution. Part II considers the implications of …

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

GW Law Faculty Publications & Other Works

On Tuesday November 20th, 2007 the United States Supreme Court granted certiorari in a case involving the District of Columbia's ban on handguns. The statute had been successfully challenged in the United States Court of Appeals for the District of Columbia Circuit on the grounds that it violated the Second Amendment's guarantee of "the right of the people to keep and bear arms." With its decision to grant certiorari, the Supreme Court entered a constitutional controversy from which it had been largely absent for nearly seventy years, the meaning and scope of the Second Amendment. That controversy, the debate over …

Textualism And Jurisdiction, Peter J. Smith

GW Law Faculty Publications & Other Works

Recent legislation has reinvigorated the scholarly debate over the proper relationship between Congress and the federal courts in matters of federal-court jurisdiction. The traditional view of jurisdiction-stripping is that Congress has virtually plenary power to determine the jurisdiction of the federal courts. Others have argued that there are substantial limits on Congress's authority to deprive the federal courts of jurisdiction over certain matters. A similar debate has raged over the obligation of federal courts to exercise jurisdiction that Congress ostensibly has conferred. Since the debate over Congress's role in crafting a jurisdictional regime last flared in full force, textualism has …