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Articles 1 - 30 of 70
Full-Text Articles in Law
The Inevitable Legal Pluralism Within Universal Harmonization Regimes: The Case Of The Cisg, Paul Schiff Berman
The Inevitable Legal Pluralism Within Universal Harmonization Regimes: The Case Of The Cisg, Paul Schiff Berman
GW Law Faculty Publications & Other Works
Faced with a world of multiple overlapping normative communities and jurisdictions, law often seeks universal rules and harmonization regimes. Such rules and regimes offer to tame pluralism through the imposition of common codes of conduct. The 1980 Convention on Contracts for the International Sale of Goods (CISG) is a useful example of this phenomenon. Arising from harmonization efforts dating back at least to the 1920s, the CISG purports to solve the problem of jurisdictional overlap and inconsistency in the application of domestic law to cross-border commercial transactions. To its back-ers, the CISG addresses intractable problems of legal uncertainty and forum …
The Troublesome Inheritance Of Americans In Magna Carta And Trial By Jury, Renée Lettow Lerner
The Troublesome Inheritance Of Americans In Magna Carta And Trial By Jury, Renée Lettow Lerner
GW Law Faculty Publications & Other Works
Many Americans insisted on their traditional rights as Englishmen in the conflict with Britain before and after declaring independence. Magna Carta—particularly the provisions concerning the “law of the land” and “judgment of his peers”—embodied fundamental rights of Englishmen that American revolutionaries were willing to fight to protect. As Edward Coke had found more than a century before, American revolutionaries understood that invoking such an ancient document inspired resistance to authority.
Americans cherished Magna Carta most because of its association with jury trial. Juries had proved useful to Americans in their conflict with Britain. Colonial American juries had nullified the law …
Why Black Homeowners Are More Likely To Be Caribbean-American Than African-American In New York: A Theory Of How Early West Indian Migrants Broke Racial Cartels In Housing, Eleanor Marie Brown
Why Black Homeowners Are More Likely To Be Caribbean-American Than African-American In New York: A Theory Of How Early West Indian Migrants Broke Racial Cartels In Housing, Eleanor Marie Brown
GW Law Faculty Publications & Other Works
Why are the black brownstone owners in Harlem and Brooklyn disproportionately West Indian? The landlords, West Indian-American? The tenants African-American? These are tough questions. For students of housing discrimination, West Indian Americans have long presented a quandary. If it is reasonable to assume that racial exclusions are being consistently applied to persons who are dark-skinned, one would expect to find that housing discrimination has had similar effects on West Indian-Americans and African-Americans. Yet this is not the case: West Indian-Americans generally own and rent higher quality housing than African-Americans.
Moreover, these advantages began long ago. For example, when racial covenants, …
Berkshire's Blemishes: Lessons For Buffett's Successors, Peers, And Policy, Lawrence A. Cunningham
Berkshire's Blemishes: Lessons For Buffett's Successors, Peers, And Policy, Lawrence A. Cunningham
GW Law Faculty Publications & Other Works
Berkshire Hathaway’s unique managerial model is lauded for its great value; this article highlights its costs. Most costs stem from the same features that yield such great value, which boil down, ironically, to Berkshire trying to be something it isn’t: it is a massive industrial conglomerate run as an old-fashioned investment partnership. An advisory board gives unchecked power to a single manager (Warren Buffett); Buffett makes huge capital allocations and pivotal executive hiring-and-firing decisions with modest investigation and scant oversight; Berkshire’s autonomous and decentralized structure grants operating managers enormous discretion with limited second-guessing; its trust-based culture relies on a cultivated …
Incomplete Dispositions, Naomi R. Cahn
Incomplete Dispositions, Naomi R. Cahn
GW Law Faculty Publications & Other Works
In Irresolute Testators, Professor Jane Baron provocatively suggests the existence of two distinct types of testators: the rational, autonomous testator who has made deliberate choices about the contents of her will and whose errors, if any, are minor; and the more vulnerable, less resolute testator who may not have actually made the final decisions enshrined in a formal will. To illustrate how these testators appear in wills law, she analyzes how courts apply the doctrines of harmless error and mistake reformation. While the two doctrines appear to be intended to help the resolute testator, courts instead, she suggests, also apply …
Race, Policing, And Lethal Force: Remedying Shooter Bias With Martial Arts Training, Cynthia Lee
Race, Policing, And Lethal Force: Remedying Shooter Bias With Martial Arts Training, Cynthia Lee
GW Law Faculty Publications & Other Works
This paper seeks to join the national conversation on race and policing. This conversation about race and policing should be of concern to everyone because problematic shootings by police cost taxpayers millions of dollars in settlements arising from civil lawsuits. These monies could instead be going towards improving social services, schools, and jobs. The need for reform of policing practices also transcends race. Almost half of all individuals shot and killed by police each year are White.
The paper starts by examining the social science research on race and the decision to shoot. By and large, this research demonstrates that …
Health Care Competition Law In The Shadow Of State Action: Minimizing Macs, David A. Hyman, William E. Kovacic
Health Care Competition Law In The Shadow Of State Action: Minimizing Macs, David A. Hyman, William E. Kovacic
GW Law Faculty Publications & Other Works
How should we go about reconciling competition and consumer protection in health care, given the long shadow cast by the state action doctrine? We consider that issue, using a case study drawn from an obscure corner of the pharmaceutical reimbursement market to motivate and inform our analysis. We show how the balance between competition and consumer protection has been distorted by the political economy of health care regulation – compounded by the extension of the state action doctrine far past its defensible borders. If anything, considerations of political economy argue for much greater skepticism about the utility of regulation – …
Stranded Costs And Grid Decarbonization, Emily Hammond, Jim Rossi
Stranded Costs And Grid Decarbonization, Emily Hammond, Jim Rossi
GW Law Faculty Publications & Other Works
Over the past half century, energy law has endured many stranded cost experiments, each helping firms and customers adjust to a new normal. However, these past experiments have contributed to a myopic regulatory approach to past stranded cost recovery by: (1) endorsing a preference for addressing all stranded costs only after energy resource investment decisions have been made; and (2) fixating on the firm’s financial costs and protection of investors, rather than on the broader impacts of each on the energy system.
The current transition to decarbonization is already giving rise to stranded cost claims related to existing energy assets …
Gender And The Sharing Economy, Naomi Schoenbaum
Gender And The Sharing Economy, Naomi Schoenbaum
GW Law Faculty Publications & Other Works
While the sharing economy has been celebrated as a flexible alternative to traditional employment for those with family responsibilities, especially women, it presents challenges for gender equality. Many of the services that are “shared” take place in the context of intimacy, which can have substantial consequences for transacting, particularly by enhancing the importance of identity of both the worker and the customer. Expanding on previous research on intimate work — a critical area that exists largely in limbo between the law of the market and the law of the family — this Article, written for the Cooper-Walsh Colloquium, explores the …
Photocopies, Patents, And Knowledge Transfer: 'The Uneasy Case' Of Justice Breyer's Patentable Subject Matter Jurisprudence, Dmitry Karshtedt
Photocopies, Patents, And Knowledge Transfer: 'The Uneasy Case' Of Justice Breyer's Patentable Subject Matter Jurisprudence, Dmitry Karshtedt
GW Law Faculty Publications & Other Works
One aspect of Justice Stephen Breyer’s discomfort with patents, as expressed in his opinion for the Supreme Court in Mayo v. Prometheus and his dissent from the order dismissing certiorari in LabCorp v. Metabolite, is strikingly similar to one of his critiques of copyright law in The Uneasy Case for Copyright, a well-known article he wrote as Professor Breyer more than forty-five years ago. In The Uneasy Case, Breyer argued that the burdens on duplication of technical articles imposed by copyright law restrict the flow of information and prevent scientists from enjoying spillover benefits of published research. His patent opinions …
Infrequently Asked Questions, Edward T. Swaine
Infrequently Asked Questions, Edward T. Swaine
GW Law Faculty Publications & Other Works
If appellate advocates could hear from courts about topics that might be raised during oral argument—as opposed to relying solely on their ability to anticipate the issues—might their answers be better? That seems likely, but it is unlikely that research could confirm that, as judicial practice overwhelmingly favors impromptu questioning. Spontaneity may be harmless if the question was predictable, or unavoidable if a judge just thought of the question. But sometimes advocates have to answer challenging questions concerning the law, facts, or implications of a position—questions that help decide the case, either due to the quality of the answer or …
The False Promise Of Custody In Domestic Violence Protection Orders, Laurie S. Kohn
The False Promise Of Custody In Domestic Violence Protection Orders, Laurie S. Kohn
GW Law Faculty Publications & Other Works
This Article reveals the disconnect between the power and the will to enforce the custody and parenting time provisions of protection orders through criminal mechanisms and explores the further infirmity of civil enforcement by illustrating the shortcomings of available relief. Together, these barriers to effective enforcement threaten to render this court-granted protection meaningless and dangerously misleading. The barriers also undermine the many years of advocacy invested to secure these protections in the first place - reforms aimed at protecting victims and children from abusive parents.
This Article explores ways to bring together the will and the power to enforce all …
"Bitch," Go Directly To Jail: Student Speech And Entry Into The School-To-Prison Pipeline, Catherine J. Ross
"Bitch," Go Directly To Jail: Student Speech And Entry Into The School-To-Prison Pipeline, Catherine J. Ross
GW Law Faculty Publications & Other Works
This article demonstrates the close connection between student speech that the First Amendment protects (even for students in grades K-12) and penalties school authorities impose on speech they find controversial or offensive. The penalties include deprivation of instructional time—suspension, expulsion and assignment to alternative school for troubled and disruptive youth. The link between the exercise of First Amendment rights and school discipline that starts young people on the school-to-prison pipeline is even more dramatic when on-site police officers arrest students or schools refer them to the juvenile justice system for violating a school speech code – rules imposed by the …
The Law Of China's Local Government Debt Crisis: Local Government Financing Vehicles And Their Bonds, Donald C. Clarke
The Law Of China's Local Government Debt Crisis: Local Government Financing Vehicles And Their Bonds, Donald C. Clarke
GW Law Faculty Publications & Other Works
Local government financing vehicles (“LGFVs”)—companies capitalized and owned by local government and established for the purpose of raising funds for municipal infrastructure construction—emerged in China in the 1980s as a response to the severe constraints on indebtedness by local governments themselves. The mushrooming of their number and indebtedness has sparked fears about their ability to repay the debt and the consequences of a default. In addition to taking on bank debt, a number of LGFVs have also issued bonds. While observers have questioned the value of collateral typically offered as security for the bonds, we know of no extensive analysis …
Patent Transfer And The Bundle Of Sticks, Andrew Michaels
Patent Transfer And The Bundle Of Sticks, Andrew Michaels
GW Law Faculty Publications & Other Works
In the age of the patent troll, patents are often licensed and transferred. A transferred patent may have been subject to multiple complex license agreements. It cannot be that such a transfer wipes the patent clean of all outstanding license agreements; the licensee must keep the license. But at the same time, it cannot be that the patent transferee becomes a party to a complex and sweeping license agreement – the contract – merely by virtue of acquiring one patent. This article attempts to separate the in personam aspects of a license agreement from its effects on the underlying in …
Nonmarriage, Naomi R. Cahn, June Carbone
Nonmarriage, Naomi R. Cahn, June Carbone
GW Law Faculty Publications & Other Works
Now that the Supreme Court has reshaped the laws of marriage, attention is shifting to nonmarriage. The law no longer treats intimate couples who do not marry as either deviant or deprived. Yet, rather than regulate nonmarriage in a systematic way, the law applies two inconsistent doctrines to govern these relationships. This Article is the first to explore the fundamental contradiction in the legal approach to unmarried partners. While the laws governing financial obligations between unmarried couples are moving toward a deregulatory model that radically differs from the status-based regulation of marriage, the laws of custody and support insist on …
In Defense Of The Equal Sovereignty Principle, Thomas Colby
In Defense Of The Equal Sovereignty Principle, Thomas Colby
GW Law Faculty Publications & Other Works
The Supreme Court of the United States based its landmark decision in Shelby County v. Holder on the proposition that the Constitution contains “a fundamental principle of equal sovereignty among the States.” For the central holding of a blockbuster constitutional case, that assertion was surprisingly unsupported. The Court simply declared it to be true, and made little effort to substantiate it. Naked as it was, the Court’s conclusion prompted savage criticism not only from the left, but also from the right. The consensus critical reaction was epitomized by Judge Richard Posner’s remark that “the court’s invocation of ‘equal sovereignty’ is …
Teaching Lawyering With Heart In The George Washington University Law School Domestic Violence Project, Joan S. Meier
Teaching Lawyering With Heart In The George Washington University Law School Domestic Violence Project, Joan S. Meier
GW Law Faculty Publications & Other Works
The Domestic Violence Project (DVP) began as an experiment and has become my favorite model for teaching law students about domestic violence work. The heart of the course is its emphasis on developing awareness of and compassion for the personally and emotionally challenging dimensions of this work. I achieve this (i) through a dialogue between students’ journals and my written responses, (ii) by inviting students to produce a creative project, and (iii) by teaching reflexively about vicarious trauma. Many students experience this course as an oasis of holistic professional and personal growth within the often dispiriting experience of law school.
Unequal Terms: Gender, Power, And The Recreation Of Hierarchy, Naomi R. Cahn, June Carbone
Unequal Terms: Gender, Power, And The Recreation Of Hierarchy, Naomi R. Cahn, June Carbone
GW Law Faculty Publications & Other Works
This paper explores the relationship between feminist theory and rising economic inequality. It shows how greater inequality reflects the valorization of the stereotypically male qualities of competition and hierarchy, producing a greater concentration of wealth among a small number of men at the top, shortchanging men more than women through the rest of the economy, and altering the way that men and women match up to each other in the creation of families. By creating a framework for further research on the relationship between the norms of the top and the disadvantages of everyone else in more unequal societies, the …
Brief Of The Domestic Violence Legal Empowerment And Appeals Project, Aequitas: The Prosecutors' Resource On Violence Against Women, & Futures Without Violence As Amici Curiae In Support Of Respondent, Voisine V. United States, No. 14-10154 (U.S. Jan. 26, 2016)., Joan S. Meier
GW Law Faculty Publications & Other Works
No abstract provided.
Emerging Policy And Practice Issues (2016), Steven L. Schooner, Neal J. Couture
Emerging Policy And Practice Issues (2016), Steven L. Schooner, Neal J. Couture
GW Law Faculty Publications & Other Works
This paper, presented at the West Government Contracts Year in Review Conference (covering 2015), attempts to identify the key trends and issues in U.S. federal procurement. Consistent with prior practice, this chapter offers extensive coverage of the federal procurement, grant, and defense spending trends and attempts to predict what lies ahead, particularly with regard to legislative and executive activity. The paper discusses, in addition to the macro-level data, initiatives from OFPP and DoD, including the Better Buying Power 3.0's less-than-obvious focus on innovation, the need for investment in research and development, information technology and category management, acquisition performance measurement (or …
Spoe + Tlac = More Bailouts For Wall Street, Arthur E. Wilmarth Jr.
Spoe + Tlac = More Bailouts For Wall Street, Arthur E. Wilmarth Jr.
GW Law Faculty Publications & Other Works
A primary goal of the Dodd-Frank Act is to end “too big to fail” (TBTF) bailouts for systemically important financial institutions (SIFIs) and their creditors. Title II of Dodd-Frank establishes the Orderly Liquidation Authority (OLA), which empowers the Secretary of the Treasury to appoint the Federal Deposit Insurance Corporation (FDIC) as receiver for failed SIFIs. Title II requires the FDIC to liquidate failed SIFIs and to impose any resulting losses on their shareholders and creditors. Title II establishes a liquidation-only mandate because Congress did not want a failed megabank to emerge from an OLA receivership as a “rehabilitated” SIFI.
The …
Taming The Wild West: Online Excesses, Reactions And Overreactions, Catherine J. Ross
Taming The Wild West: Online Excesses, Reactions And Overreactions, Catherine J. Ross
GW Law Faculty Publications & Other Works
A review essay discussing Danielle Keats Citron’s Hate Crimes in Cyberspace (Harvard University Press 2014) and Amy Adele Hasinoff’s, Sexting Panic: Rethinking Criminalization, Privacy and Consent (University of Illinois Press 2015). Both books consider the risks and harms in cyberspace, blaming of victims, and the interaction between law and online expression. Citron documents widespread hate speech, cyberstalking, revenge porn, and other speech that especially targets women online. Hasinoff, grounded in feminist and cultural studies, emphasizes the positive aspects of the agency girls who sext voluntarily display in exploring and displaying their sexuality, arguing that advising girls that control of their …
Second Report On Crimes Against Humanity, Sean D. Murphy
Second Report On Crimes Against Humanity, Sean D. Murphy
GW Law Faculty Publications & Other Works
In July 2014, the U.N. International Law Commission placed the topic “Crimes against humanity” on its current program of work and appointed a Special Rapporteur. According to the topic proposal, the objective of the Commission is to draft articles for what could become a Convention on the Prevention and Punishment of Crimes against Humanity.
In July 2015, based on the Special Rapporteur’s First Report, the Commission provisionally adopted the first four draft articles with commentary. In this Second Report, which will be debated by the Commission during the summer of 2016, the Special Rapporteur proposes an additional six draft articles, …
Adversary Breakdown And Judicial Role Confusion In “Small Case” Civil Justice, Jessica K. Steinberg
Adversary Breakdown And Judicial Role Confusion In “Small Case” Civil Justice, Jessica K. Steinberg
GW Law Faculty Publications & Other Works
This Article calls attention to the breakdown of adversary procedure in a largely unexplored area of the civil justice system: the ordinary, two-party case. The twenty-first century judge confronts an entirely new state of affairs in presiding over the average civil matter. In place of the adversarial party contest, engineered and staged by attorneys, judges now face the rise of an unrepresented majority unable to propel claims, facts, and evidence into the courtroom. The adversary ideal favors a passive judge, but the unrealistic demands of such a paradigm in today’s “small case” civil justice system have sparked role confusion among …
The Ultimate Unifying Approach To Complying With All Laws And Regulations, Daniel J. Solove, Woodrow Hartzog
The Ultimate Unifying Approach To Complying With All Laws And Regulations, Daniel J. Solove, Woodrow Hartzog
GW Law Faculty Publications & Other Works
There are countless laws and regulations that must be complied with, and the task of figuring out what to do to satisfy all of them seems nearly impossible. In this article, Professors Daniel Solove and Woodrow Hartzog develop a unified approach to doing so. This approach (patent pending) was developed over the course of several decades of extensive analysis of every relevant law and regulation.
Individual Sanctions For Competition Law Infringements: Pros, Cons And Challenges, William E. Kovacic, Florian Wagner-Von Paap, Autorite De La Concurrence, Daniel Zimmer, Andreas Stephan
Individual Sanctions For Competition Law Infringements: Pros, Cons And Challenges, William E. Kovacic, Florian Wagner-Von Paap, Autorite De La Concurrence, Daniel Zimmer, Andreas Stephan
GW Law Faculty Publications & Other Works
Following the substantive harmonization in Regulation (EC) no. 1/2003, the European Commission has started more recently to focus on the harmonization of procedure and sanctions, and in January 2016, the European Parliament called for penalties against natural persons. This special issue looks at the current state of individual sanctions on the EU Member State level, examines from a comparative perspective the institutional challenges which these individual sanctions present, especially for leniency programmes, and discusses the pros and cons of introducing further individual, in particular criminal sanctions in Europe. It examines the experience with criminal sanctions in France, Germany, the United …
On The Evolution Of Property Ownership Among Former Slaves, Newly Freedmen, Eleanor Marie Brown
On The Evolution Of Property Ownership Among Former Slaves, Newly Freedmen, Eleanor Marie Brown
GW Law Faculty Publications & Other Works
One might think of the slave property system of provision grounds (or “provisioning”) in the West Indies as a happy coalition of interests between planters (who wanted to provide slaves incentives to feed themselves), Westminster (who wanted well-fed slaves to ensure the productivity of the sugar sector, a hefty tax contributor to the Exchequer), and slaves (who saw the advantages of a system which ensured that they were fed and encouraged private enterprise). Yet while this was generally true, notably, not all members of the plantocracy viewed these developments as positive. An outspoken minority feared that the roots of the …
Fall 2016 Supplement To Brauneis & Schechter, Copyright: A Contemporary Approach, Robert Brauneis, Roger E. Schechter
Fall 2016 Supplement To Brauneis & Schechter, Copyright: A Contemporary Approach, Robert Brauneis, Roger E. Schechter
GW Law Faculty Publications & Other Works
This cumulative supplement contains additional materials for Brauneis and Schechter, Copyright: A Contemporary Approach (1st ed. 2012) that make it current through July 2016. Special features include a hyperlinked table of references to 19 recent cases decided since July 2015, which may be helpful in getting an overview of developments over this past year; a hyperlinked table of contents to all inserts; and a chapter-by-chapter guide to using the supplement, intended for professors who are creating or updating syllabi. The supplement contains nine principal cases with notes, as well as dozens of other updates.
Prelude To Glass-Steagall: Abusive Securities Practices By National City Bank And Chase National Bank During The “Roaring Twenties”, Arthur E. Wilmarth Jr.
Prelude To Glass-Steagall: Abusive Securities Practices By National City Bank And Chase National Bank During The “Roaring Twenties”, Arthur E. Wilmarth Jr.
GW Law Faculty Publications & Other Works
From the late 1990s through 2008, the United States experienced the largest boom-and- bust cycle in its securities and housing markets since the “Roaring Twenties” and the Great Depression. Scholars have studied the events that led to the recent financial crisis and have compared those events to the causes of the Great Depression. In particular, analysts have considered whether “universal banks” – financial conglomerates that control deposit-taking banks as well as securities broker-dealers – played central roles in both crises.
Congress responded to the Great Depression by adopting the Glass-Steagall Act of 1933, which outlawed first-generation universal banks and established …