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Whose Eyes Are You Going To Believe? Scott V. Harris And The Perils Of Cognitive Illiberalism, Donald Braman, Dan M. Kahan, David A. Hoffman Jan 2009

Whose Eyes Are You Going To Believe? Scott V. Harris And The Perils Of Cognitive Illiberalism, Donald Braman, Dan M. Kahan, David A. Hoffman

GW Law Faculty Publications & Other Works

This paper accepts the unusual invitation to see for yourself issued by the Supreme Court in Scott v. Harris, 127 S. Ct. 1769 (2007). Scott held that a police officer did not violate the Fourth Amendment when he deliberately rammed his car into that of a fleeing motorist who refused to pull over for speeding and instead attempted to evade the police in a high-speed chase. The majority did not attempt to rebut the arguments of the single Justice who disagreed with its conclusion that no reasonable juror could find the fleeing driver did not pose a deadly risk to ...


Laws And Policy To Address The Link Of Family Violence, Joan Schaffner Jan 2009

Laws And Policy To Address The Link Of Family Violence, Joan Schaffner

GW Law Faculty Publications & Other Works

This chapter argues that there is a link between animal cruelty and physical abuse of humans and advocates for focusing on the link between the two behavioral patterns. I suggest that the law may capitalize upon this link to better address the violence by incorporating compassion into educational programs, enacting laws that properly indicate the seriousness of animal abuse, with stiff penalties, require cross-reporting of abuses among agencies, providing safe havens for all victims of family abuse, and more aggressively prosecuting and punishing abusers.


Saving The Unitary Executive Theory From Those Who Would Distort And Abuse It: A Review Of The Unitary Executive, By Steven G. Calabresi And Christopher Yoo, Richard J. Pierce Jr Jan 2009

Saving The Unitary Executive Theory From Those Who Would Distort And Abuse It: A Review Of The Unitary Executive, By Steven G. Calabresi And Christopher Yoo, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

Calabresi and Yoo make three important contributions to the literature on separation of powers in their new book. First, they seek to rescue the unitary executive theory from the Bush Administration lawyers who have discredited the theory in the eyes of many by relying on it to support outlandish claims of presidential power that are unrelated to the unitary executive theory. Second, they make a persuasive case for the unitary executive theory by explaining why a president must have the power to remove executive branch officers and to control policy making in the executive branch. Third, they document the ways ...


Perennial Outsiders: The Educational Experience Of Turkish Youth In Germany, Catherine J. Ross Jan 2009

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 ...


The Constitutionality Of Breed Discriminatory Legislation: A Summary, Joan E. Schaffner Jan 2009

The Constitutionality Of Breed Discriminatory Legislation: A Summary, Joan E. Schaffner

GW Law Faculty Publications & Other Works

This chapter focuses on Toledo v. Tellings, an Ohio case dealing with breed-specific legislation that restricted a Toledo resident to owning one “vicious” dog, defined purely by breed as a pit bull. This case implicated numerous constitutional issues, including vagueness, procedural due process, equal protection, substantive due process, takings, and privileges and immunities. Although the Ohio Sixth Appellate District struck down the breed-specific legislation, the Ohio Supreme Court reversed, and I find this reversal at odds with the constitutional issues at play.


Process-Based Preemption, Bradford R. Clark Jan 2009

Process-Based Preemption, Bradford R. Clark

GW Law Faculty Publications & Other Works

The question of preemption arises because the Constitution establishes a federal system with two governments (one federal and one state) that have overlapping power to regulate the same matters involving the same parties in the same territory. To succeed, such a system requires a means of deciding when federal law displaces state law. The Founders chose the Supremacy Clause (reinforced by Article III) to perform this function. Although seemingly one-sided, the Clause actually incorporates several important political and procedural safeguards designed to preserve the proper balance between the governance prerogatives of the federal government and the states. It does this ...


Ecosystem Resilience To Disruptions Linked To Global Climate Change: An Adaptive Approach To Federal Land Management, Robert L. Glicksman Jan 2009

Ecosystem Resilience To Disruptions Linked To Global Climate Change: An Adaptive Approach To Federal Land Management, Robert L. Glicksman

GW Law Faculty Publications & Other Works

Global climate change presents daunting challenges to the federal government’s ability to manage its lands and resources in ways that ensure that the priceless natural heritage that these land and resources comprise remains available in substantially unimpaired condition to both present and future generations of Americans. One of the challenges results from the fact that the laws governing the activities of federal land management agencies have outlasted the scientific assumptions on which those laws were based. In particular, Congress adopted many of those laws on the assumption that ecological systems tend toward a natural equilibrium. Subsequently, the science of ...


Cartels As Two-Stage Mechanisms: Implications For The Analysis Of Dominant-Firm Conduct, William E. Kovacic Jan 2009

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 Jan 2009

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 ...


Emerging Policy And Practice Issues (2008), Steven L. Schooner, David J. Berteau Jan 2009

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. To exacerbate ...


The Enduring Connections Between Law And Culture: Reviewing Lawrence Rosen, Law As Culture, And Oscar Chase, Law, Culture, And Ritual, Paul Schiff Berman Jan 2009

The Enduring Connections Between Law And Culture: Reviewing Lawrence Rosen, Law As Culture, And Oscar Chase, Law, Culture, And Ritual, Paul Schiff Berman

GW Law Faculty Publications & Other Works

In an era of globalization, "culture" is sometimes treated as a dirty word. For those who see the world as increasingly "flat," culture can seem to be merely a retrograde imposition of local prerogative that stands in the way of progress. Likewise, those who seek greater harmonization of human rights norms, commercial trade rules, or other legal standards may view culture as simply a monkey wrench in the machinery of global consensus and cooperation. In such debates, culture is often conceptualized as fundamentally pre-modern, something "they" cling to, but that "we" have long since jettisoned.

Two recent books - Law as ...


Placing Children In Context: Parents, Foster Care, And Poverty, Naomi R. Cahn Jan 2009

Placing Children In Context: Parents, Foster Care, And Poverty, Naomi R. Cahn

GW Law Faculty Publications & Other Works

This essay provides an overview of federal involvement in foster care, starting with the 1909 White House Conference on Dependent Care, to show the historical relationship between aid to children and in-home care. This historical look reveals a shift toward child rescue that amounts to an overreaction to a perceived bias towards family preservation.

This essay advocates a returned focus on children as members of an existing family within a larger community as the means for grounding the child welfare system. I suggest alternative approaches to the current abuse and neglect system that will keep children safe in their families ...


America's New Climate Unilateralism: A Better Approach To Copenhagen, Steve Charnovitz Jan 2009

America's New Climate Unilateralism: A Better Approach To Copenhagen, Steve Charnovitz

GW Law Faculty Publications & Other Works

This article criticizes the American Clean Energy and Security Act, a bill passed by the U.S. House of Representatives in June 2009 that effectively taxes importers of various projects from specific countries. Although the House tried to justify this fee as the best way to avoid carbon leakage, defined as a significant increase in the release of greenhouse gases in other countries, I argue that this bill is protectionist and creates unrealistic expectations as to how other countries will react to the United States’ attempt to establish unilateral control over such charges. I predict that a WTO dispute panel ...


Notice-And-Comment Judicial Decisionmaking, Michael B. Abramowicz, Thomas Colby Jan 2009

Notice-And-Comment Judicial Decisionmaking, Michael B. Abramowicz, Thomas Colby

GW Law Faculty Publications & Other Works

Executive branch agencies typically use a process of "notice-and-comment" to permit the public to respond to the proposed text of rules. The legal literature has not considered whether a similar process would be helpful for the judicial branch. In this Article, Professors Abramowicz and Colby argue that it would be. Neither the parties to a litigation nor third parties generally have an opportunity to comment on judicial opinions after they are drafted but before they are made final. As a result, judicial opinions often contain errors and frequently have far-ranging and unanticipated negative consequences. A notice-and-comment system could mitigate these ...


Judicial Citation To Legislative History: Contextual Theory And Empirical Analysis, Michael B. Abramowicz, Emmerson H. Tiller Jan 2009

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 ...


'Generational Theft'? Even With Stimulus And Bailout Spending, U.S. Fiscal Policy Does Not Cheat Future Generations, Neil H. Buchanan Jan 2009

'Generational Theft'? Even With Stimulus And Bailout Spending, U.S. Fiscal Policy Does Not Cheat Future Generations, Neil H. Buchanan

GW Law Faculty Publications & Other Works

Despite the oft-heard claims that current generations are stealing from future generations by running fiscal deficits, both theory and evidence suggest that this is either not true or not knowable. Intergenerational justice is not an appropriate lens through which to analyze fiscal issues, because there is no obvious starting point from which to build a moral consensus about whether current generations owe anything at all to future generations - and even if we do believe that we owe something to future generations, no one has offered a useful method by which we can determine whether we are doing enough for our ...


Four Out Of Four Panelists Agree: U.S. Fiscal Policy Does Not Cheat Future Generations, Neil H. Buchanan Jan 2009

Four Out Of Four Panelists Agree: U.S. Fiscal Policy Does Not Cheat Future Generations, Neil H. Buchanan

GW Law Faculty Publications & Other Works

As part of the George Washington Law Review's symposium "What Does Our Legal System Owe Future Generations? New Analyses of Intergenerational Justice for a New Century," participants discussed the nature of intergenerational obligations as they relate to fiscal policy. The panelists reached consensus that intergenerational justice is not an appropriate lens through which to analyze fiscal issues, because there is no obvious starting point from which to build a moral consensus about whether current generations owe anything at all to future generations, much less how to quantify any such obligation. In addition, even pessimistic forecasts indicate that future generations ...


International Human Rights In A Nutshell, Thomas Buergenthal, Dinah L. Shelton, David P. Stewart Jan 2009

International Human Rights In A Nutshell, Thomas Buergenthal, Dinah L. Shelton, David P. Stewart

GW Law Faculty Publications & Other Works

This book describes the development of international human rights law. The main difference today is that individuals receive protection as individuals independent from their affiliation with a nation, as compared to the traditional consideration that only states had rights under international law. The law of humanitarian intervention first suggested that states do not receive unlimited discretion in their behavior under international law. The first chapter describes the earliest treaties and agreements giving rise to the current status of international law, such as the League of Nations and the International Labor Organization.


Constitutional Patriotism And The Right To Privacy: A Comparison Of The European Court Of Justice And The European Court Of Human Rights, Francesca Bignami Jan 2009

Constitutional Patriotism And The Right To Privacy: A Comparison Of The European Court Of Justice And The European Court Of Human Rights, Francesca Bignami

GW Law Faculty Publications & Other Works

This chapter examines attitudes towards national diversity in one piece of the emerging European constitution-the right to privacy. There is a thick constitutional culture of privacy in Europe. The familiar debate of how to balance the right to privacy against freedom of expression, the market, and public security can be heard in many places: before the Court of Justice and the European Court of Human Rights, in the European Parliament and the European Council, and before Europe's numerous data privacy ombudsmen. And in these places, the less familiar problem of tolerance of diversity within Europe, among Europe's different ...


The Jurisprudence Of Human Rights Tribunals On Remedies For Human Rights Violations, Dinah L. Shelton Jan 2009

The Jurisprudence Of Human Rights Tribunals On Remedies For Human Rights Violations, Dinah L. Shelton

GW Law Faculty Publications & Other Works

This essay reviews the power of international human rights bodies to award remedies to parties before them. The essay looks first at the duties and obligations of states to afford remedies in domestic law. It then examines the express and implied remedial powers of human rights institutions and then discusses the various types of remedies that have been afforded by different international bodies. Finally, it notes how these remedies have evolved over time and suggests possible ways in which the law may develop in the future.


Litigating A Rights-Based Approach To Climate Change, Dinah L. Shelton Jan 2009

Litigating A Rights-Based Approach To Climate Change, Dinah L. Shelton

GW Law Faculty Publications & Other Works

Most discussions of a rights-based approach to the environmental crises facing the planet have centered on demanding that governments take action to prevent or mitigate environmental harm that diminishes, for those within their territory and jurisdiction, the enjoyment of internationally-guaranteed human rights. Yet, the consequences of pollution -- especially anthropogenic climate change due to greenhouse gas emissions -- are not confined within the boundaries of a single state: pollution knows no boundaries. Instead, throughout the world, individuals, communities and entire nations face significant threats to their wellbeing and even their lives from climate change and its effects.

A key fact in the ...


Prohibited Discrimination In International Law, Dinah L. Shelton Jan 2009

Prohibited Discrimination In International Law, Dinah L. Shelton

GW Law Faculty Publications & Other Works

This essay assesses how the prohibition of discrimination is understood in contemporary international human rights law. The essay aims to determine whether human rights bodies apply coherent theories when deciding which distinctions are permitted and which are invidious. The essay begins by surveying the provisions of human rights instruments such as the U.N. Charter that call for non-discrimination and equality. Next, the essay examines the jurisprudence of international tribunals and monitoring bodies, including judgments, advisory opinions, general comments, and observations on state periodic reports. The conclusion draws from this body of law a general approach to discrimination in international ...


Cases And Materials On Patent Law, Martin J. Adelman, Randall R. Rader, John R. Thomas Jan 2009

Cases And Materials On Patent Law, Martin J. Adelman, Randall R. Rader, John R. Thomas

GW Law Faculty Publications & Other Works

This casebook provides a thorough overview of the fundamentals of U.S. patent law. The book is organized in fourteen chapters. The casebook starts with the current statute in Title 35 of the United States Code. It then considers the requirement of “usefulness” necessary to receive patent protection. The book proceeds to explain the requirement of “novelty” as well as the “nonobviousness standard.” The book also examines the various roles of the United States Patent and Trademark Office (“USPTO”), as well as the basics of the patent acquisition process.

After its discussion of the USPTO, the book provides an overview ...


The Enforcement Of Wto Judgments, Steve Charnovitz Jan 2009

The Enforcement Of Wto Judgments, Steve Charnovitz

GW Law Faculty Publications & Other Works

This essay examines the WTO’s dispute resolution system known as the Dispute Settlement Understanding (“DSU”). Inspiration for this essay comes from an influential article written by Michael Reisman four decades ago titled “The Enforcement of International Judgments.” Professor Reisman’s article presented a model for improving enforcement of international judicial decisions in cases between states. My essay shows that the DSU has achieved much of what Professor Reisman envisioned with respect to systematic enforcement of multilateral tribunal decisions. My essay begins by summarizing the institutional improvements recommended by Professor Reisman. Then the essay demonstrates how the DSU achieves many ...


The Federal Common Law Of Nations, Bradford R. Clark Jan 2009

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 ...


Lifting The Floor: Sex, Class, And Education, Naomi R. Cahn, June Carbone Jan 2009

Lifting The Floor: Sex, Class, And Education, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

This paper was written for a conference on third wave feminism. Third wave feminism recognizes the importance of "raising the floor," and this paper - from two second wave feminists - helps in developing an agenda for achieving that goal. After a brief exploration of two different models that we label "red families" and "blue families," this paper makes two critical points: first, it correlates the different models to the varying approaches to parental leave laws; and second, it expands our discussion of women and care beyond the workplace and child care, exploring what contributes to women's ability to care for ...


The New Federal Corporation Law?, Lawrence A. Cunningham Jan 2009

The New Federal Corporation Law?, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

Could a preemptive federal incorporation law today assume the enabling character of traditional state corporation law, instead of the mandatory flavor typical of much federal securities regulation? Does global competition mean that the US should both preempt state corporation law and adopt a flexible, principles-oriented approach to business regulation? This essay, commenting on Robert Ahdieh’s Trapped in a Metaphor: The Limited Implications of Federalism for Corporate Governance, shows how this surprising approach is plausible and may be desirable but also that it is not politically likely in the current environment. The intellectual basis for a preemptive, enabling, and flexible ...


Treatment Differences And Political Realities In The Gaap-Ifrs Debate, Lawrence A. Cunningham, William W. Bratton Jan 2009

Treatment Differences And Political Realities In The Gaap-Ifrs Debate, Lawrence A. Cunningham, William W. Bratton

GW Law Faculty Publications & Other Works

The Securities Exchange Commission has introduced a Roadmap that describes a process leading to mandatory use of IFRS by domestic issuers by 2014. The SEC justifies this initiative on the grounds that global standardization yields cost savings and an ultimate gain in comparability, facilitating the search for global opportunities by U.S. investors and making U.S. capital markets more attractive to foreign issuers.

This paper enters an objection, noting that the stakes include more than the choice of the framework for standard setting. The accounting treatments themselves are at issue, treatments that for the most part concern domestic reporting ...


The Three Or Four Approaches To Financial Regulation: A Cautionary Analysis Against Exuberance In Crisis Response, Lawrence A. Cunningham, David T. Zaring Jan 2009

The Three Or Four Approaches To Financial Regulation: A Cautionary Analysis Against Exuberance In Crisis Response, Lawrence A. Cunningham, David T. Zaring

GW Law Faculty Publications & Other Works

Unprecedented interest in financial regulation reform accompanies the nearly-unprecedented scale of financial calamity facing the world. Dozens of elaborate reform proposals are in circulation, most determined to revolutionize financial regulation. No doubt, the crisis makes reevaluation essential, but we contribute a cautionary analysis amid the exuberant atmosphere. Reforms should not discount the value of traditional financial regulation, overlook the functional regulatory reform that has already occurred, or overstate ultimate differences between contending reform proposals. Despite proliferation of dozens of reform proposals, our analysis leads us to conclude that there are ultimately only three or four principal alternatives: (1) the traditional ...


Military Lawyers On The Battlefield: An Empirical Account Of International Law Compliance, Laura T. Dickinson Jan 2009

Military Lawyers On The Battlefield: An Empirical Account Of International Law Compliance, Laura T. Dickinson

GW Law Faculty Publications & Other Works

This empirical study, based on personal interviews, draws on insights from organizational theory to consider how military lawyers embedded with troops can help produce battlefield decisions that comply with international legal norms. These lawyers appear to be most likely to function effectively and encourage legal compliance if certain organizational features are present. Accordingly, focusing on the links between organizational structure, institutional culture, and legal compliance through more nuanced qualitative analysis should contribute to a better understanding of international law compliance.