Law Commons^™

Book Review: Outsourcing Sovereignty: Why Privatization Threatens Democracy, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

This is a review of Paul Verkuil's new book: Outsourcing Sovereignty: Why Privatization Threatens Democracy and What we Can Do About It. The book consists of a wide-ranging and well-documented critique of what Verkuil views as excessive reliance on private contractors to perform a variety of inherently governmental tasks, with particular emphasis on military and other national security functions. Verkuil discusses in detail numerous ways in which the U.S. might reduce the scope and severity of the severe problems that excessive reliance on poorly-supervised contractors is now having.

Pierce praises Verkuil's description and documentation of the problem he addresses in …

Legal Constraints On Child-Saving: The Strange Case Of The Fundamentalist Latter-Day Saints At Yearning For Zion Ranch, Catherine J. Ross

GW Law Faculty Publications & Other Works

It may seem counterintuitive, but children in foster care are more likely to achieve permanency if we take the legal rights of their parents seriously. When all state actors, from social workers to judges, consider parental rights before removing children from their families or terminating parental rights, subsequent adoptions are more likely to be insulated from ongoing litigation, or in the worst instance, revocation. I am a strong proponent of children’s rights. In the context of the child welfare system, however, respect for the rights of parents can protect children from unnecessary and frightening disruptions. The doctrine of parens patriae, …

Picking The Correct Argument, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

This article on trial tactics suggests that probably no rule of thumb is more important to a trial lawyer than this: You need only one good theory of admissibility or objection to win a point, and in many instances the key is to pick the winner and avoid the losers. The rule is easy to state and widely acknowledged. It is more difficult, however, to apply than to acknowledge. A related rule is that a lawyer who has a powerful, potentially winning argument, may ultimately lose if that argument is lost in a flurry of less persuasive arguments.

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 …

The Work-Family Conflict: An Essay On Employers, Men And Responsibility, Michael Selmi

GW Law Faculty Publications & Other Works

This paper, prepared for a symposium held at the University of St. Thomas Law School, explores an issue that has been largely neglected in the work-family debate, namely why the burden should be on employers to change their practices rather than on men to change theirs. Many of the policy proposals designed to facilitate the balancing of work and family demands require employers to alter their practices by creating part-time work, providing paid leave, or devising ways to limit the penalties women face for taking extended leave. At the same time, the reluctance of men to change their behavior, which …

Data Mining And The Security-Liberty Debate, Daniel J. Solove

GW Law Faculty Publications & Other Works

In this essay, written for a symposium on surveillance for the University of Chicago Law Review, I examine some common difficulties in the way that liberty is balanced against security in the context of data mining. Countless discussions about the trade-offs between security and liberty begin by taking a security proposal and then weighing it against what it would cost our civil liberties. Often, the liberty interests are cast as individual rights and balanced against the security interests, which are cast in terms of the safety of society as a whole. Courts and commentators defer to the government's assertions about …

Constitutional Change And Responsibilities Of Governance Pertaining To The Faith-Based And Community Initiative, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

This paper, commissioned and published in June 2008 in connection with the White House-sponsored Conference on Innovations in Effective Compassion, addresses the changing legal environment relevant to government partnerships with religious providers of social services. In particular, the paper maps the federal government's regulatory agenda in connection with the Faith-Based and Community Initiative (FBCI) onto the changes in constitutional law over the past several decades. After briefly surveying the key developmental points in the relevant constitutional law, the paper explores specific changes in federal regulations governing aid to religious providers of welfare services, and considers the litigation efforts that have …

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 …

Taking Care Of Treaties, Edward T. Swaine

GW Law Faculty Publications & Other Works

There is little consensus about the scope of the President's powers to cure breaches of U.S. treaty obligations, let alone the influence of decisions by international tribunals finding the United States in breach. Such decisions do not appear to be directly effective under U.S. law. Treaties and statutes address questions of domestic authority sporadically and incompletely, and are suited to the task only if construed heroically; the President's general constitutional authority relating to foreign affairs is sometimes invoked, but its extent is uncertain and turns all too little on the underlying law at issue. Relying on either theory to cope …

Why Contractor Fatalities Matter, Steven L. Schooner

GW Law Faculty Publications & Other Works

At the end of July 2008, the media reported that 4,600 service members have died in Operations Iraqi Freedom and Enduring Freedom. But reporting only military fatalities understates the human cost of America's engagements in these regions by nearly a fourth. On the modern, outsourced battlefield, the U.S. government increasingly has delegated to the private sector the responsibility to stand in harm's way and, if required, die for America. As of 30 June 2008, more than 1,350 civilian contractor personnel had died in Iraq and Afghanistan, while another 29,000 contractors have been injured; more than 8,300 seriously. Nonetheless, contractor fatalities …

Emerging Policy And Practice Issues (2007), Steven L. Schooner, Danielle M. Conway

GW Law Faculty Publications & Other Works

This paper, presented at the West Government Contracts Year in Review Conference (covering 2007), attempts to identify the key trends and issues for 2008 in U.S. federal procurement. We bemoan the absence of attention to significant issues by the current Presidential candidates, critique the leadership vacuum that sustains the longstanding and increasingly critical acquisition workforce shortage, and discuss the potentially active legislative agenda in light of the now-Final Report of the Acquisition Advisory Panel (AAP), a blue-ribbon commission mandated by Section 1423 of the Services Acquisition Reform Act (SARA). We also discuss the dramatic post-2000 trend in increased federal procurement …

Public Procurement Systems: Unpacking Stakeholder Aspirations And Expectations, Steven L. Schooner, Daniel I. Gordon, Jessica L. Clark

GW Law Faculty Publications & Other Works

Around the world, governments are increasingly becoming focused on improving their public procurement regimes. Significant developments include the establishment of internationally shared norms for public procurement systems, while, at the national level, a number of countries have adopted dramatically new public procurement regimes, and others are experimenting with new procurement vehicles, such as framework agreements and electronic reverse auctions, and new procurement schemes, including public-private partnerships. As each of these changes is contemplated, planned, implemented, and then assessed, government leaders and policy makers need a framework of analysis for decision making - a framework based on public procurement goals and …

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 …

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.

Regional Protection Of Human Rights (Introduction), Dinah L. Shelton

GW Law Faculty Publications & Other Works

This book focuses on regional approaches to human rights. It discusses regional tools such as treaties, conventions, and case law. The book then discusses state obligations under regional agreements and during various conditions, such as an emergency. Next, the book discusses regional institutions such as courts and the procedures for attempting to receive redress. The book concludes by discussing responses to violations of human rights and looking ahead by examining suggestions for moving forward.

Necessary Subjects: The Need For A Mandatory National Donor Gamete Registry, Naomi R. Cahn

GW Law Faculty Publications & Other Works

This brief article calls for a mandatory national donor gamete registry. It first discusses the history of secrecy in the adoption context before turning to issues involving confidentiality in the donor context. After analyzing the issues involved in maintaining the secrecy of donor gametes, the article ultimately recommends the establishment of a national information registry, similar to that in place in numerous other countries, to keep track of children both through donor egg, embryo, and sperm, as well as the identities of the gamete providers. Participation in the registry would be mandatory for anyone involved in supplying donor gametes. Once …

The Ilo Convention On Freedom Of Association And Its Future In The United States, Steve Charnovitz

GW Law Faculty Publications & Other Works

This paper addresses the status of the international law convention on freedom of association in the United States. Although the United States supported the adoption of the Convention on Freedom of Association (#87) in the International Labour Organization in 1948, the U.S. government has not ratified that Convention. Instead, the Convention has sat on the shelf in the United States Senate since 1949, the longest unratified convention on the treaty calendar of the Senate Foreign Relations Committee. The paper analyzes the disadvantages for the United States in failing to become a party to this important treaty. The paper notes that …

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 …

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 …

Worker Participation And Social Dialogue At The Work Place Level In The United States, Charles B. Craver

GW Law Faculty Publications & Other Works

This paper discusses the right of private sector employees to influence management decisions that may affect their working conditions. It explores the ability of workers represented by labor organizations to deal with their employers through the collective bargaining process, and through contractual grievance-arbitration procedures with respect to issues arising under current agreements. It notes the decline of unions over the past fifty years, with union membership declining from 35% in the late 1950s to under 7% today. In the absence of formal union representation, employees have no formal right to affect management decisions, even though over 85% of surveyed employees …

Protean Jus Ad Bellum, Sean D. Murphy

GW Law Faculty Publications & Other Works

The jus ad bellum is generally viewed as a static field of law. The standard account is that when the UN Charter was adopted in 1945, it enshrined a complete prohibition on the use of force in inter-state relations, except when action is being taken in self-defense against an armed attack or under authorization of the UN Security Council. Yet it seems likely that in the years to come, many states and non-state actors will increasingly insist upon a different vision of the jus ad bellum, one that conceives of it as more protean in nature.

Protean jus ad bellum …

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 …

Making The Corporation Safe For Shareholder Democracy, Lisa M. Fairfax

GW Law Faculty Publications & Other Works

This article considers the effect that increased shareholder activism may have on non-shareholder corporate stakeholders such as employees and consumers. One of the most outspoken proponents of increased shareholder power has argued that such increased power could have negative repercussions for other corporate stakeholders because it would force directors to focus on profits without regard to other interests. This article critically examines that argument. The article acknowledges that increased shareholder power may benefit some stakeholders more than others, and may have some negative consequences. However, this article demonstrates that shareholders not only have interests that align with other stakeholders, but …

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 …

The Justice System And Domestic Violence: Engaging The Case But Divorcing The Victim, Laurie S. Kohn

GW Law Faculty Publications & Other Works

This Article examines the development of an inverse relationship in the legal system between the concern accorded domestic violence cases and the concern accorded domestic violence victims. The Article analyzes both philosophical approaches and concrete mechanisms currently used by the justice system to address domestic violence. Concluding that the current system- though it signals a serious institutional attitude toward addressing domestic violence – has failed to increase victim safety, this Article advocates for a paradigm shift in the legal system’s approach to domestic violence.

Specifically, the Article analyzes the viability of a paradigm shift in the philosophy behind current policies …

Who Fears The Hpv Vaccine, Who Doesn't, And Why? An Experimental Study Of The Mechanisms Of Cultural Cognition, Donald Braman, Dan M. Kahan, Geoffrey L. Cohen, Paul Slovic, John Gastil

GW Law Faculty Publications & Other Works

The cultural cognition hypothesis holds that individuals are disposed to form risk perceptions that reflect and reinforce their commitments to contested views of the good society. This paper reports the results of a study that used the controversy over mandatory HPV vaccination to test the cultural cognition hypothesis. Although public health officials have recommended that all girls aged 11 or 12 be vaccinated for HPV - a virus that causes cervical cancer and that is transmitted by sexual contact - political controversy has blocked adoption of mandatory school-enrollment vaccination programs in all but one state. A multi-stage experimental study of …

The Case For Tolerant Constitutional Patriotism: The Right To Privacy Before The European Courts, Francesca Bignami

GW Law Faculty Publications & Other Works

The theory of constitutional patriotism has been advanced as a solution to the European Union's legitimacy woes. Europeans, according to this theory, should recognize themselves as members of a single human community and thus acknowledge the legitimacy of Europe-wide governance based on their shared belief in a common set of liberal democratic values. Yet in its search for unity, constitutional patriotism, like nationalism and other founding myths, carries the potential for the exclusion of others. This article explores the illiberal tendencies of one element of the liberal canon - the right to privacy - in the case law of Europe's …

Soft Law, Dinah L. Shelton

GW Law Faculty Publications & Other Works

International law is a largely consensual system, consisting of norms that states in sovereign equality freely accept to govern themselves and other subjects of law. International law is thus created by states, using procedures that they have agreed are legislative, that is, through procedures identified by them as the appropriate means to create legally-binding obligations. In contrast to the agreed sources listed in the International Court of Justice (ICJ) Statute, state practice in recent years, inside and outside international organizations, increasingly has placed normative statements in non binding political instruments such as declarations, resolutions, and programs of action, and has …

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 …

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 …