Law Commons^™

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 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 …

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 …

What A Difference A Year Makes: The International Court Of Justice's 2012 Jurisprudence, Sean D. Murphy

GW Law Faculty Publications & Other Works

An analysis of any particular decision of the International Court of Justice sometimes misses broader, cross-cutting themes that animate the Court’s jurisprudence. This essay, prepared for an April 2013 symposium at the European University Institute, Robert Schuman Centre for Advanced Studies, in Florence, explores a few of the themes that emerged from the Court’s 2012 jurisprudence. First, notwithstanding the development of treaty regimes across a broad array of international law, there remains an enduring relevance of customary international law and general principles of law as sources of international law. Second, when identifying rules of customary international law, there is an …

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 …

Incentive Effects From Different Approaches To Holdup Mitigation Surrounding Patent Remedies And Standard-Setting Organizations, F. Scott Kieff, Anne Layne-Farrar

GW Law Faculty Publications & Other Works

Debates about patent policy often focus on the potential for the threat of a court-imposed remedy for patent infringement to cause manufacturing entities and others to suffer patent holdup, especially when standardized industries are involved. This article uses lessons from the broader economics and political science literatures on holdup to explore various approaches to setting remedies for patent infringement—namely injunctions and money damages in the form of lost profits or reasonable royalties—with an eye towards the nature and extent of various forms of holdup they each might generate. In so doing, the article contrasts various narrower sub-categories of the broad …

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 …

Who's The Father?, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

As this brief online essay observes, the litigation that produced the Supreme Court' 2013 decision in Adoptive Couple v. Baby Girl demonstrates why we are no closer to a definitive resolution of what to do when parents do not share assumptions about how to raise their child. The case illustrates the national lack of agreement on what makes someone a parent. At the core of these differences is the question of how to align parental behavior with the promotion of the child’s interest in stable and secure relationships.

Rethinking The World Bank’S Sanctions System, Christopher R. Yukins

GW Law Faculty Publications & Other Works

The World Bank is reviewing its system for suspending and debarring contractors (known formally as the World Bank sanctions system). The system is used to suspend and debar contractors that have engaged in fraud or corruption (and other enumerated bad acts) related to Bank-financed projects. After reviewing the sanctions process, and identifying what appear to be the Bank’s current goals in its sanctions system (stemming reputational and fiduciary risks), the article recommends that the World Bank defer finalizing any reforms until it concludes its assessment of first principles, and has at hand all the data necessary to assess the sanctions …

How Legal Pluralism Is And Is Not Distinct From Liberalism: A Response To Dennis Patterson And Alexis Galán, Paul Schiff Berman

GW Law Faculty Publications & Other Works

Alexis Galan and Dennis Patterson largely accept the descriptive account of plural authority described in my book, Global Legal Pluralism: A Jurisprudence of Law Beyond Borders. However, they are concerned that my normative argument for procedural mechanisms, institutional designs, and discursive practices for managing pluralism is simply liberalism in another guise and not pluralist enough. Given that pluralists are usually criticized from the opposite side for an approach that results in too much fragmentation and destabilization, I am in some sense happy to welcome this new critique. After all, a position cannot easily be simultaneously too radical and not …

Political Law, Spencer A. Overton

GW Law Faculty Publications & Other Works

Traditional “election law” or “the law of democracy” concentrated largely on constitutional analysis by judicial actors. That narrow focus, however, distorted scholars’ understanding of the problems confronting democracy and possible solutions. This Foreword proposes that the field should be understood more properly as “political law,” which includes the study of the activities not only of judges but also of policymakers, regulators, and practitioners. The Foreword also examines the concept of “political law community”—a concentration of scholars, judges, policymakers, regulators, and practitioners interested in the subject that can give rise to innovation and creativity. Finally, the Foreword reviews the George Washington …

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 …