Law Commons^™

The Imperialism Of American Constitutional Law, David Fontana

GW Law Faculty Publications & Other Works

This Book Review examines the ways in which comparative constitutional law scholarship has, to this point, been dominated by the same concerns and issues which predominate domestic American constitutional law scholarship.

Which Original Meaning Of The Constitution Matters To Justice Thomas?, Gregory E. Maggs

GW Law Faculty Publications & Other Works

This essay was published as part of a symposium hosted by the New York University Journal of Law and Liberty in March 2009. The journal citation is: Gregory E. Maggs, Which Original Meaning Matters to Justice Thomas?, 4 N.Y.U. J. L. & Liberty 494 (2009).

The essay addresses a basic question about Justice Clarence Thomas’s originalist jurisprudence. When Justice Thomas looks for the original meaning of the Constitution, does he seek (a) the meaning intended by the Framers at the Constitutional Convention in Philadelphia (“original intent”), (b) the meaning as understood by the delegates to the thirteen state ratifying conventions …

A Concise Guide To The Records Of The State Ratifying Conventions As A Source Of The Original Meaning Of The U.S. Constitution, Gregory E. Maggs

GW Law Faculty Publications & Other Works

This article was published by the University of Illinois Law Review in 2009. The citation is: Gregory E. Maggs, A Concise Guide to the Records of the State Ratifying Conventions as a Source of the Original Meaning of the U.S. Constitution, 2009 U. Ill. L. Rev. 457.

Starting in the fall of 1787, legislatures in the original thirteen states called for conventions for the purpose of deciding whether to ratify the U.S. Constitution. Many of the records of these state ratifying conventions have survived. The records reveal some of what the delegates at the state conventions said during their debates …

Ending The Patent Monopoly, Michael B. Abramowicz, John H. Duffy

GW Law Faculty Publications & Other Works

For nearly two centuries, an inventor applying for a U.S. patent has been required to obtain the opinion of an expert who has searched the prior art and determined that the inventor’s application meets the standards of patentability. And for nearly two centuries, those expert opinions could be obtained only from a single office run by the U.S. government. The patenting monopoly, which is almost certainly undesirable, is now being eroded. Rising global trade and technological sophistication have increased the number of patent filings in every country; government patent offices here and abroad are thus being driven to rely on …

What Factors Can An Agency Consider In Making A Decision?, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

In State Farm, the Supreme Court said that an agency decision is arbitrary and capricious if the agency did not consider adequately a relevant factor or did consider an impermissible factor. The Court did not indicate how courts should distinguish among three categories of potential decision making factors: mandatory, discretionary but permissible, and impermissible. Until 2007, the case law in both the D.C. Circuit and the Supreme Court addressed these questions in sensible ways. In particular, both courts held consistently that congressional silence with respect to a logically relevant factor rendered the factor a permissible factor that an agency could …

Science, Politics, Law And The Arc Of The Clean Water Act: The Role Of Assumptions In The Adoption Of A Pollution Control Landmark, Robert L. Glicksman, Matthew R. Batzel

GW Law Faculty Publications & Other Works

This article examines the assumptions upon which Congress relied in enacting the 1972 Clean Water Act and the extent to which they have been borne out or belied as the federal and state governments have implemented their statutory responsibilities in the quest to achieve acceptably clean water. It traces the development of federal water pollution control legislation before 1972, highlighting the deficiencies that contributed to the need for a new approach in 1972. It then examines the scientific and technical, political, and legal assumptions that helped shape the 1972 Clean Water Act in an effort to determine whether the failure …

Rating The Competition Agencies: What Constitutes Good Performance?, William E. Kovacic

GW Law Faculty Publications & Other Works

Debates about the U.S. federal competition agencies have revealed a serious need to return to a basic question: what is good performance? Assessments of agency performance are important for many reasons: public perception, the ability to influence legislative actions, judicial decisions to defer, and the morale of current employees. Recent critiques on competition agencies and related commentary have demonstrated a need for better performance standards by begging two basic questions: (1) by what criteria should the performance of competition agencies be judged?; and (2) once the criteria for the agency report card have been set, how should they be applied …

Cartels As Two-Stage Mechanisms: Implications For The Analysis Of Dominant-Firm Conduct, William E. Kovacic

GW Law Faculty Publications & Other Works

Cartels often act like single dominant firms. Because there are a number of difficulties in determining market effects of single dominant firms, this article proposes that enforcement policy recognize the connection between cartels and firms engaged in monopolization. The resulting insight would be useful to determine whether or not cartel conduct should be viewed with suspicion when engaged in or by a dominant firm in a similar industry. Many cartels do not focus solely on suppressing interfirm rivalry; rather, many operate as two-stage mechanisms: the first stage consists of reaching a consensus on a plan to restrict output and curb …

The Continuing Pursuit Of Better Practices, William E. Kovacic

GW Law Faculty Publications & Other Works

Due to the approaching 100th anniversary of the statute that gave the FTC life, the FTC conducted a self-assessment to consider what it must do to continue the valuable work it performs and to identify steps it must take to do better in the future. The consultations for the project identified general characteristics of good administration practice the FTC should strive to achieve in the coming years.

Part two of the report discusses various foundations of successful FTC performance and identifies institutional features that beget good substantive outcomes over time. These foundations and features include the agency’s mission, structure, resources, …

By Any Means Necessary? The Fcc's Implementation Of Net Neutrality, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

Since the Federal Communications Commission (FCC) removed common carriage obligations from Internet cable broadband providers in 2002, free speech and open access advocates have been lamenting the FCC’s market-oriented, laissez-faire approach and have called for net neutrality regulation to remedy the problems brought about by an unregulated market for Internet communications. Such regulation would reimpose some of the common carriage/non-discrimination obligations historically imposed on telecommunications providers and would prohibit broadband providers from censoring, blocking, or otherwise discriminating against any legal content or applications that users sought to communicate via broadband pipes. In August 2008, however, the FCC reversed its laissez-faire …

Making Sense Of Procedural Injury, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

This essay uses the Supreme Court’s 2009 opinion describing the version of the harmless error rule courts must use in administrative law cases as a point of entry in attempting to understand the Court’s 1992 opinion recognizing that 'procedural rights are special' for standing purposes. It concludes that courts should apply an easy-to-meet plausibility test in determining whether an agency’s refusal to provide a procedure required by statute or by the constitution has a causal relationship with the challenged agency action sufficient to allow the petitioner to obtain review of the action based on a procedural injury theory. Such a …

Perennial Outsiders: The Educational Experience Of Turkish Youth In Germany, Catherine J. Ross

GW Law Faculty Publications & Other Works

'When you talk about the debate on Turkey’s E.U. membership,' a German of Turkish origin who serves in the Parliament of the European Union explains, 'it immediately becomes a talk about head-scarf issues and building mosques.' This is in part because Western Europe has long considered itself a 'Christian Club.' The treatment of second-generation Turks in Germany and other European countries offers a window into the obstacles that must be confronted and overcome before Turks gain full equality in Europe. Totaling about four million, persons of Turkish origin make up the largest immigrant group in Europe, and virtually all of …

Emerging Policy And Practice Issues (2008), Steven L. Schooner, David J. Berteau

GW Law Faculty Publications & Other Works

This paper, presented at the West Government Contracts Year in Review Conference (covering 2008), attempts to identify the key trends and issues for 2009 in U.S. federal procurement. In large part, the paper focuses upon the challenges facing the incoming Obama administration, which faces a number of interrelated, critical, systemic challenges that pervade the acquisition landscape. Federal procurement spending has exploded in this decade. As a result - and, in addition to decisions made during the 1990's - the Government is heavily outsourced, dependent upon contractors to an extent - in degree and in type - that makes many uncomfortable. …

Book Review Of Jeremy Scahill, Blackwater: The Rise Of The Most Powerful Mercenary Army (2007/2008) And From Mercenaries To Market: The Rise And Regulation Of Private Military Companies (Simon Chesterman & Chia Lehnardt, Eds., 2008), Gregory E. Maggs

GW Law Faculty Publications & Other Works

This is a review of two books: Jeremy Scahill, Blackwater: the Rise of the Most Powerful Mercenary Army (2007/2008) and From Mercenaries to Market: the Rise and Regulation of Private Military Companies (Simon Chesterman & Chia Lehnardt, eds., 2008). Each book concerns the increasing use of contractors in military operations.

Litigating Animal Disputes: A Complete Guide For Lawyers (Introduction), Joan Schaffner, Julie L. Fershtman

GW Law Faculty Publications & Other Works

This chapter introduces the topics discussed throughout the book and describes the development of the field of animal law. Most of the issues pertain to state law, and the introduction notes that the book provides sample documents that practitioners will find useful.

Contraception: Securing Feminism’S Promise, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

This paper traces the history of attempts to restrict contraception, the legal events securing widespread access to contraception and their importance to a generation of college-aged women, the short-lived nature of the consensus that produced them, and the potential of the issue to serve as a rallying point for a revitalized feminism. It explores the hypocrisy of a system that, whatever its values, makes reproductive autonomy readily available for the affluent and the sophisticated and increasingly beyond the reach of the most vulnerable. Finally, it considers the potential of contraception as a reframing device, capable of exposing the hypocrisy of …

The International Legality Of U.S. Military Cross-Border Operations From Afghanistan Into Pakistan, Sean D. Murphy

GW Law Faculty Publications & Other Works

To date, U.S. cross-border operations from Afghanistan into Pakistan have taken three forms: the use of Predator drones to target Al Qaeda fighters (although such drones may be launched solely from within Pakistan); the "hot pursuit" of militants who engaged in raids from Pakistan against U.S. and allied forces in Afghanistan, as well as the Afghan government; and the deployment of special operations forces into Pakistan as a means of striking at Al Qaeda. These types of cross-border operations clearly implicate the jus ad bellum, in that they entail one state projecting highly coercive military force into another state. Arguably …

The Transformation Of Originality In The Progressive-Era Debate Over Copyright In News, Robert Brauneis

GW Law Faculty Publications & Other Works

In the 1991 case of Feist Publications, Inc. v. Rural Telephone Service Co., Inc., the Supreme Court held unanimously that only those aspects of works which exhibited a "modicum of creativity" could be protected by copyright, and hence that factual matter was not copyrightable. Feist confirmed and expanded on the Court's statements in the 1918 case of International News Service v. Associated Press that news was not copyrightable apart from its literary form. Yet for the first three-quarters of the nineteenth century, the notion that copyright incorporated an originality requirement which excluded factual matter from protection was unknown to Anglo-American …

The Victim-Informed Prosecution Project: A Quasi-Experimental Test Of A Collaborative Model For Cases Of Intimate Partner Violence, Laurie S. Kohn, Laura Bennett Cattaneo, Lisa A. Goodman, Deborah Epstein, Holly A. Zanville

GW Law Faculty Publications & Other Works

This Article describes the Victim-Informed Prosecution Project (VIP), a program that, over its 6-year tenure, aimed to amplify the voice of the victim in the handling of interpersonal violence (IPV) prosecutions in Washington, D.C. The Article discusses the rationale for and design and implementation of VIP and then explores whether it increased the victim’s sense of influence over the justice system response. While some VIP services, including legal advocacy and civil protection order representation, were associated with increased perceived victim voice, the program as a whole reflected more limited levels of perceived victim voice in the area of criminal prosecution. …

Judicial Citation To Legislative History: Contextual Theory And Empirical Analysis, Michael B. Abramowicz, Emmerson H. Tiller

GW Law Faculty Publications & Other Works

Judge Leventhal famously described the invocation of legislative history as "the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one's friends." The volume of legislative history is so great and varied, some contend, that judges cite it selectively to advance their policy agendas. In this article, we employ positive political and contextual theories of judicial behavior to examine how judges use legislative history. We consider whether opinion-writing judges, as Judge Leventhal might suggest, cite legislative history from legislators who share the same political-ideological perspective as the opinion-writing judge? Or do judges make …

Cultural Cognition Of The Risks And Benefits Of Nanotechnology, Donald Braman, Dan M. Kahan, Paul Slovic, John Gastil, Geoffrey L. Cohen

GW Law Faculty Publications & Other Works

We conducted an experimental public opinion study of the effect of balanced information on nanotechnology risk-benefit perceptions. The study found that subjects did not react in a uniform, much less a uniformly positive manner, but rather polarized along lines consistent with cultural predispositions toward technological risk generally.

The Federal Common Law Of Nations, Bradford R. Clark

GW Law Faculty Publications & Other Works

Courts and scholars have vigorously debated the proper role of customary international law in American courts: To what extent should it be considered federal common law, state law, or general law? The debate has reached something of an impasse, in part because various positions rely on, but also are in tension with, historical practice and constitutional structure. This Article describes the role that the law of nations actually has played throughout American history. In keeping with the original constitutional design, federal courts for much of that history enforced certain rules respecting other nations' "perfect rights" (or close analogues) under the …

The Second American Revolution In The Separation Of Powers, David Fontana

GW Law Faculty Publications & Other Works

The American Constitution creates three branches of government and ensures that there will be sufficiently great amounts of ideological diversity among these branches of government. Despite this regime ensuring external heterogeneity, the American system, uniquely among the world's major constitutional democracies, rarely creates the same degree of heterogeneity at the highest levels of the Executive Branch that it does among the highest levels of the various branches of government. This Article discusses the distinctiveness of the homogeneous high-level American Executive Branch and the events that led to such a situation. At the first key moment defining the separation of powers …

Eight Is Enough, Naomi R. Cahn, Jennifer M. Collins

GW Law Faculty Publications & Other Works

On January 26, 2009, the nation's second set of live-born octuplets was delivered. The public fascination with this event quickly turned ugly when the media revealed that the mother was thirty-three year-old Nadya Suleman, who is single, unemployed, and already caring for six children under the age of eight.

The cultural backlash against Suleman has focused on three separate issues. The first revolves around Suleman herself, and her ability as a single, unemployed mother to parent fourteen young children successfully. A second set of concerns revolves around the medical procedures at her fertility clinic. How could the clinic agree to …

What Do We Owe Future Generations?, Neil H. Buchanan

GW Law Faculty Publications & Other Works

In the United States, it is common for legal scholars, economists, politicians and others to claim that we are selfishly harming "our children and grandchildren" by (among many other things) running large government budget deficits. This article first asks two broad questions: (1) Do we owe future generations anything at all as a philosophical matter? and (2) If we do owe something to future generations, how should we balance their interests against our own? The short answers are "Probably" and "We really are not sure."

Finding only general answers to these general questions, I then look specifically at U.S. fiscal …

Rethinking Free Speech And Civil Liability, Daniel J. Solove, Neil M. Richards

GW Law Faculty Publications & Other Works

One of the most important and unresolved quandaries of First Amendment jurisprudence involves when civil liability for speech will trigger First Amendment protections. When speech results in civil liability, two starkly opposing rules are potentially applicable. Since New York Times v. Sullivan, the First Amendment requires heightened protection against tort liability for speech, such as defamation and invasion of privacy. But in other contexts involving civil liability for speech, the First Amendment provides virtually no protection. According to Cohen v. Cowles, there is no First Amendment scrutiny for speech restricted by promissory estoppel and contract. The First Amendment rarely requires …

Implementing The Social And Economic Promise Of The Constitution: The Role Of South African Legal Education, Susan R. Jones, Peggy Maisel

GW Law Faculty Publications & Other Works

The South African Constitution recognizes socio-economic rights as a necessary foundation for the enjoyment of civil and political rights. The South African Constitution, one of the most progressive in the world, contains many important protections such as the rights to equality, housing, and education. The Broad-Based Black Economic Empowerment Law (BEE) was designated to address the economic inequities of apartheid. South Africa’s commitment to economic justice is also evidenced by the fact that it is a signatory to the International Covenant on Economic, Social and Cultural Rights (ICESCR). The challenge is translating these rights into opportunities for social and economic …

The Color Of Our Future: The Pitfalls And Possibilities Of The Race Card In American Culture, Christopher A. Bracey

GW Law Faculty Publications & Other Works

We live in a country haunted by a past of slavery, segregation, racism, and violence. Though many systemic corrections have been attempted, a large percentage of African-Americans continue to fall behind their White counterparts in nearly every index of socio-economic well-being. The debate rages on as to why this situation exists and persists, and people on both sides of the color divide have become increasingly sensitive to perceptions and accusations of racial injustice. In his book, The Race Card: How Bluffing About Bias Makes Race Relations Worse, Richard Thompson Ford explores the phenomenon called “the race card,” wherein individuals play …

Status Bound: The Twentieth Century Evolution Of Directors’ Liability, Dalia Tsuk Mitchell

GW Law Faculty Publications & Other Works

This article examines scholarly debates and judicial decisions, ranging from the turn of the twentieth century to its end, about the appropriate status of directors and the standard of liability that each status carried—specifically in situations involving allegations of breaches of the duty of care. I argue that during the course of the twentieth century, jurists moved from viewing directors as trustees, to describing directors as representatives of the shareholders, to holding that directors were mere agents of shareholders who typically served as passive principals. Each of these descriptions corresponded to a particular understanding of the role of corporations in …

Teaching Criminal Law From A Critical Perspective, Angela P. Harris, Cynthia Lee

GW Law Faculty Publications & Other Works

Recent turmoil in the marketplace has led to a massive attorney layoffs and the folding of several major law firms. Current prospective law students are fast becoming aware of the fact that having a law degree is no guarantee that one will be employed after graduation. Many parents, who have seen their retirement accounts shrink over the last three years can no longer afford to send their kids to law schools that charge $40,000 or more per year in tuition. This state of events in turn has prompted law students to take a hard look at proposals for curriculum reform …