Law Commons^™

Book Review, S. James Anaya

Publications

No abstract provided.

Fighting To Keep Employment Discrimination Class Actions Alive: How Allison V. Citgo's Predomination Requirement Threatens To Undermine Title Vii Enforcement, Suzette M. Malveaux

Publications

The Civil Rights Act of 1991, which provides compensatory and punitive damages and attendant jury trials in cases alleging intentional discrimination, was designed to enhance enforcement and expand remedies. Its enactment, however, has triggered a schism among the circuit courts over what the proper standard is for determining whether monetary damages or injunctive relief predominates, a necessary inquiry for determining whether plaintiffs are entitled to class certification for Title VII claims under Rule 23(b)(2) of the Federal Rules of Civil Procedure. Led by the Fifth Circuit, some federal appeals courts contend that monetary relief predominates unless it is “incidental,” and …

Inter-American System, Claudia Martin

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Inter-American System, Diego Rodriguez-Pinzon

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Judging Art, Christine Farley

Articles in Law Reviews & Other Academic Journals

What is art? Surprisingly, this question is addressed in various places in the law. At these junctures, courts typically attempt to avoid making a judgment. Indeed, the law generally resists any definition of art. The reasons given for this are that these determinations are too subjective for the courts and that judges lack proper training and expertise. Thus, the doctrine of avoidance is the most stable and explicitly stated proposition to be found in these encounters. However, the question of whether an object is a work of art for treatment under the law is often unavoidable. This question gets resolved …

The Right Of States To Repatriate Former Refugees, James C. Hathaway

Articles

Armed conflict often results in the large-scale exodus of refugees into politically and economically fragile neighboring states. The burdens on asylum countries can be extreme, and may only be partly offset by the arrival of international aid and protection resources. Moreover, difficulties inherent in the provision of asylum have been exacerbated in recent years by the increasing disinclination of the wealthier countries that fund the United Nations High Commissioner for Refugees (UNHCR) and most other assistance agencies to meet the real costs of protection. In such circumstances, it is unsurprising that as conflicts wind down, host countries ordinarily seek to …

Earl Warren: Law Enforcement Leads To Defendants' Rights, Yale Kamisar

Articles

Before becoming governor of California, Earl Warren spent 22 years in law enforcement: five as a deputy district attorney (1920- 25); thirteen as head of the Alameda County district attorney's office (1925-38); and four as state attorney general (1939-42). My thesis is that Warren's many years in law enforcement significantly affected his work as Chief Justice of the United States.

Learning The Value Of Drugs - Is Rofecoxib A Regulatory Success Story?, Rebecca S. Eisenberg

Articles

Controversy over recent revelations concerning the adverse cardiovascular effects of selective cyclooxygenase- 2 (COX-2) inhibitors has generally been framed as a story of regulatory failure, in which the Food and Drug Administration (FDA) has failed in its mission to protect the public from unsafe products. But this simplistic understanding of the mission of the FDA seems to make failure all but inevitable, if the reliable observation of the risks and benefits of a drug requires rigorous long-term studies. Perhaps in an earlier era the goal of drug regulation was simply to protect the public from poisons. Today, drug regulation guides …

Exonerations In The United States 1989 Through 2003, Samuel R. Gross, Kriten Jacoby, Daniel J. Matheson, Nicholas Montgomery, Sujata Patil

Articles

On August 14, 1989, the Cook County Circuit Court in Chicago, Illinois, vacated Gary Dotson's 1979 rape conviction and dismissed the charges.1 Mr. Dotson-who had spent ten years in and out of prison and on parole for this conviction-was not the first innocent prisoner to be exonerated and released in America. But his case was a breakthrough nonetheless: he was the first who was cleared by DNA identification technology. It was the beginning of a revolution in the American criminal justice system. Until then, exonerations of falsely convicted defendants were seen as aberrational. Since 1989, these once-rare events have become …

The Silver Lining: The International Tax Provisions Of The American Jobs Creation Act - A Reconsideration, Reuven S. Avi-Yonah

Articles

The American Jobs Creation Act of 2004, passed by the US Congress on 12 October and signed into law by President Bush on 22 October 2004, has been greeted by general dismay by various critics. The Act has been described as overloaded with “pork” and giveaways to special interest groups like tobacco farmers. The critics contend that the only achievement of the Act, the repeal of the “extraterritorial income” (ETI) regime that was ruled by the WTO to be a prohibited export subsidy, is dwarfed by 633 pages of special interest legislation. Even the Bush Administration distanced itself from the …

Reflections On The Practice Of Law As A Religious Calling, From A Perspective Of Jewish Law And Ethics, Samuel J. Levine

Scholarly Works

This Essay is based on introductory remarks Levine delivered at the inaugural conference of the Pepperdine Institute on Law, Religion, and Ethics, "Can the Ordinary Practice of Law be a Religious Calling?," held on February 6-7, 2004 at Pepperdine University School of Law. In thinking about the practice of law as a religious calling, Levine argues that we should first consider the broader issue of the general relevance of religion to various areas of life, including work. From a perspective of Jewish law and ethics, moral conduct comprises an imperative at home and at the workplace no less than at …

Paper Versus Electronic Sources For Law Review Cite Checking: Should Paper Be The Gold Standard?, April Schwartz, Mary Rumsey

Scholarly Works

Despite law students' reliance on electronic sources for legal research, a survey confirmed that many journals make their staff members check authors' citations against paper sources. Rumsey and Schwartz argue that the advent of image-based document collections should change this practice, making life easier for law students and law school librarians.

Grappling With The Meaning Of 'Testimonial', Richard D. Friedman

Articles

Crawford v. Washington, has adopted a testimonial approach to the Confrontation Clause of the Sixth Amendment. Under this approach, a statement that is deemed to be testimonial in nature may not be introduced at trial against an accused unless he has had an opportunity to cross-examine the person who made the statement and that person is unavailable to testify at trial. If a statement is not deemed to be testimonial, then the Confrontation Clause poses little if any obstacle to its admission.2 A great deal therefore now rides on the meaning of the word "testimonial."

Lessons From The Nextwave Saga: The Federal Communications Commission, The Courts, And The Use Of Market Forms To Perform Public Functions, Rodger D. Citron, John A. Rogovin

Scholarly Works

No abstract provided.

Central American-Dominican Republic Free Trade Agreement: Sources Of Information, Barbara H. Garavaglia

Articles

Globalization and fre trade are usually discussed in a political context in the United States as well as in other areas of the world. As a consequence, it can be difficult to find neutral, basic information about recent new trade agreements, such as the Central American-Dominican Republic Free Trade Agreement (CAFTA-DR), because much of the information found in the news or on the Web is polemical, and it takes time for the legal literature to provide the kind of legal analysis needed by practicing attorneys. This short piece is an attempt to provide links to free, Web-based information on CAFTA-DR …

Confrontation After Crawford, Richard D. Friedman

Articles

The following edit excerpt, drawn from "The Confrontation Clause Re-Rooted and Transformed," 2003-04 Cato Supreme Court Review 439 (2004), by Law School Professor Richard D. Friedman, discusses the impact, effects, and questions generated by the U.S. Supreme Court's ruling in Crawford v. Washington last year that a defendant is entitled to confront and cross-examine any testimonial statement presented against him. In Crawford, the defendant, charged with attacking another man with a knife, contested the trial court's admission of a tape-recorded statement his wife made to police without giving him the opportunity to cross-examine. The tiral court admitted the statement, and …

The Futility Of Appeal: Disciplinary Insights Into The "Affirmance Effect" On The United States Courts Of Appeals, Chris Guthrie, Tracey E. George

Vanderbilt Law School Faculty Publications

In contrast to the Supreme Court, which typically reverses the cases it hears, the United States Courts of Appeals almost always affirm the cases that they hear. We set out to explore this affirmance effect on the U.S. Courts of Appeal by using insights drawn from law and economics (i.e., selection theory), political science (i.e., attitudinal theory and new institutionalism), and cognitive psychology (i.e., heuristics and biases, including the status quo and omission biases).

Playing With Fire: Feminist Legal Theorists And The Tools Of Economics, Neil H. Buchanan

GW Law Faculty Publications & Other Works

During the discussions at Professor Fineman’s recent feminist legal theory workshops, several participants argued that feminists should use the “tools” of mainstream economics to build a more rigorous foundation for their analyses. Feminist legal theorists, it was argued, had their hearts in the right place, but their arguments lacked sufficient intellectual (“hard-headed”) rigor to carry the day. Based on this view, the best strategy would be to use economic tools (which, these participants argued, are value neutral) to build a rigorous, logical foundation on which legal feminists could confidently stand. The problem – which applies to all areas of legal …

The Uses Of The Concept Of Efficiency In Tax Analysis, Neil H. Buchanan

GW Law Faculty Publications & Other Works

The flexibility and ubiquity of the term efficiency in tax analysis can be a double-edged sword. While tax scholars are naturally drawn to the notion of efficiency, with its implied virtues of eliminating waste and of guiding policy choices through objective, non-normative analysis, the danger exists that we can lose sight of which type of efficiency we are talking about when we invoke the concept. What one scholar calls efficient might be quite inefficient under the definition or perspective used by another scholar.

Remedies In International Human Rights Law (Chapter One), Dinah L. Shelton

GW Law Faculty Publications & Other Works

This book discusses the various approaches to and types of remedies available for violations of international human rights law. The first point is that remedies have both a procedural and substantive component. Procedural remedies means that there is an opportunity to be heard, while the substantive facet refers to the “relief afforded the successful claimant.” The first chapter of the book notes that preliminary requirements are availability of the justice system and discusses the purposes of remedies, including compensating the victim, deterring future crimes, condemnation, retribution, and restorative justice (which aims to find options other than punishment and focusing more …

Accountability Of Nongovernmental Organizations (Ngos) In Global Governance, Steve Charnovitz

GW Law Faculty Publications & Other Works

The issue of the accountability on nongovernmental organizations (NGOs) in global governance has received increased attention in recent years. The purpose of this paper is to analyze the issue, to consider whether any public problems exist, and to make recommendations on what should be done. The paper contains three parts. Part I examines the historical context of NGO accountability starting with the Papal Encylical Rerum Novarum of 1891 and considering episodes relating to the League of Nations and the founding of the United Nations. Part II provides an overview of the contemporary debate on NGO accountability and uses a recent …

The Labor Dimension Of The Emerging Free Trade Area Of The Americas, Steve Charnovitz

GW Law Faculty Publications & Other Works

This study explores a potential labor dimension for the FTAA. The study is divided into four parts: Part 1 provides context by reviewing the history of Inter-American economic cooperation, especially on labor and trade. Part 2 examines how labor has been addressed in the major free trade agreements of the Americas. Part 3 looks at the normative basis for international labor cooperation. Part 4 makes specific recommendations for addressing labor issues in the FTAA. The ideas in Part 4 seek to stimulate practical, concerted action to address labor and employment problems of regional economic integration. My recommendations for the FTAA …

Should Lawyers Participate In Rigged Systems: The Case Of The Military Commissions, Mary M. Cheh

GW Law Faculty Publications & Other Works

Lawyers often represent clients when the odds are long or a catastrophe likely. The facts might be harmful, the evidence overwhelming, or the law clearly on the side of the opponent. Still, we do the best we can. But what if the system is rigged? What if the system has the trappings of a fair fight, but is, in fact, skewed to one side and, by design, the lawyer cannot fully defend the client? What if the lawyer can only lend legitimacy to a process that at its core is biased, slanted in favor of the other side, or fundamentally …

Legislative Oversight Of Police: Lessons Learned From An Investigation Of Police Handling Of Demonstrations In Washington, D.C., Mary M. Cheh

GW Law Faculty Publications & Other Works

There are various ways to oversee police behavior including internal discipline, civilian review boards, civil law suits, and criminal prosecutions. These are important tools but an equally important but less examined mechanism is legislative oversight, and, in particular, the legislative investigation. A legislature may choose to review police policies concerning the use of surveillance, informants and undercover operatives, the implementation of community policing, the use of force, eradication of gang activity, and perhaps most prominently in the post 9/11 world, counter terrorism initiatives. All of these matters involve policy decisions at the departmental level and not actions taken at the …

Revitalizing The Forgotten Uniformity Constraint On The Commerce Power, Thomas Colby

GW Law Faculty Publications & Other Works

Employing a straightforward textual reading of the Commerce Clause, which, unlike various other constitutional clauses, does not expressly mandate uniform regulation, the Supreme Court has recently declared that Congress is free to enact commercial regulations that apply in some states, but not in others, or that explicitly treat some states differently than others. This Article seeks to call that conclusion into question, and in the course of doing so, to explore the proper roles of history and text in constitutional decisionmaking.

From a historical perspective, the desire for uniformity was both the precipitating factor in the creation of the federal …

Uncitral Model Law: Reforming Electronic Procurement, Reverse Auctions, And Framework Contracts, Christopher R. Yukins, Don Wallace Jr., Jason P. Matechak

GW Law Faculty Publications & Other Works

A Working Group of the United Nations Commission on International Trade Law (UNCITRAL) is working on potential reforms to UNCITRAL's Model Procurement Law and its Guide to Enactment. This article, written by several advisors to the U.S. delegation to the UNCITRAL Working Group, reviews the Working Group's progress on several important fronts. The Working Group has reached initial consensus on a number of difficult procurement issues, including electronic commerce, reverse auctions and framework contracts, and significant progress has been made in a number or other areas, including the procurement of services, the strengthening of procurement remedies (known in the United …

Reenvisioning Law Through The Dna Lens, Edward K. Cheng

Vanderbilt Law School Faculty Publications

In recent times, no development has transformed the practice of criminal justice as much as DNA evidence. In little over fifteen years, DNA profiling has produced nothing short of a paradigm shift.1 For police and prosecutors, DNA has become a potent weapon for identifying and convicting criminals. Trace biological material left at a crime scene now provides critical evidence for generating leads through "cold searches" of DNA databases and for convicting defendants at trial. At the same time, for defense attorneys, DNA has become an invaluable tool for seeking exonerations, because just as DNA can link defendants to crimes, it …

Subpoenas And Privacy, Christopher Slobogin

Vanderbilt Law School Faculty Publications

This symposium article, the first of two on regulation of government's efforts to obtain paper and digital records of our activities, analyzes the constitutional legitimacy of subpoenas. Whether issued by a grand jury or an administrative agency, subpoenas are extremely easy to enforce, merely requiring the government to demonstrate that the items sought pursuant to the subpoena are "relevant" to a investigation. Yet today subpoenas and pseudo-subpoenas are routinely used not only to obtain business records and the like, but also documents containing significant amounts of personal information about individuals, including medical, financial, and email records. Part I provides an …

Legal Scholarship Symposium: The Scholarship Of Lawrence M. Friedman, Robert J. Cottrol

GW Law Faculty Publications & Other Works

Lawrence M. Friedman has achieved a singular preeminence as a legal historian for articulating a new vision of legal history as a discipline in his 1973 work entitled A History of American Law. This book treats American law as a mirror of society. At the time, Friedman's vision was still something quite new in American legal historiography. James Willard Hurst's notions of legal history as a sociolegal inquiry would heavily influence Friedman, helping to move the field into new and often surprising precincts. Friedman's approach to legal history is one that introduced us to previously unexamined actors and institutions.

Whether …

Gender, Race, And Risk Perception: The Influence Of Cultural Status Anxiety, Donald Braman, Dan M. Kahan, John Gastil, Paul Stovic, C.K. Mertz

GW Law Faculty Publications & Other Works

Why do white men fear various risks less than women and minorities? Known as the white male effect, this pattern is well documented but poorly understood. This paper proposes a new explanation: cultural status anxiety. The cultural theory of risk posits that individuals selectively credit and dismiss asserted dangers in a manner supportive of their preferred form of social organization. This dynamic, it is hypothesized, drives the white male effect, which reflects the risk skepticism that hierarchical and individualistic white males display when activities integral to their status are challenged as harmful. The paper presents the results of an 1800-person …