Law Commons^™

Federal Common Law In Admiralty: An Introduction To The Beginning Of An Exchange, Joel K. Goldstein

All Faculty Scholarship

Most scholars and practitioners of admiralty law have long relied upon two central assumptions regarding their subject. First, they have understood that uniformity was a requisite of maritime law such that, generally speaking, national, rather than state, law governed most maritime events and transactions. Second, they have believed that in order to preserve the uniformity of maritime law, federal admiralty courts are empowered to fashion federal common law.[1] The commitment to these related propositions has been attested to or illustrated by a collection of Supreme Court decisions.[2] For instance, in Southern Pacific Co. v. Jensen,[3] the case that stands as …

The New Wto Agreement On Financial Services And Chapter 14 Of Nafta: Has Free Trade In Banking Finally Arrived?, Constance Z. Wagner

All Faculty Scholarship

This article discusses the U.S. policy rationale for seeking free international trade in financial services and assesses whether U.S. policy goals have been met through recent trade agreement negotiations. Free trade in financial services has been a goal of U.S. trade policy since the early 1980’s. Over a period of fifteen years, the United States concluded several agreements on financial services with key trading partners. The most significant agreements are the World Trade Organization (WTO) Agreement on Financial Services (FSA) and Chapter 14 of the North American Free Trade Agreement (NAFTA) on Financial Services. In both of these trade agreements, …

Unnecessary Adversaries At The End Of Life: Mediating End-Of-Life Treatment Disputes To Prevent Erosion Of Physician-Patient Relationships, Robert Gatter

All Faculty Scholarship

Professor Gatter estimates that institutional ethics consultation processes are used to resolve as many as 13,500 end-of-life treatment (EOLT) disputes each year. Despite this sizable case load, the law has largely ignored the method of dispute resolution used to address EOLT disagreements. This article argues that, at the stage when an ethics consultation is requested in an EOLT dispute, mediation is the most appropriate method for attempting to resolve that dispute. This article challenges current wisdom that mediation is inappropriate for addressing disputes between physicians and patients. The challenge is based on four key points. First, EOLT disputes between physicians …

The Constitutional Authority Of The Federal Government In State Criminal Proceedings That Involve U.S. Treaty Obligations Or Affect U.S. Foreign Relations, Malvina Halberstam

Articles

No abstract provided.

The Midas Touch: The Lethal Effect Of Wealth Maximization, Jeanne L. Schroeder

Articles

The article critically examines the concept of wealth maximization in law and economics, arguing that it is fundamentally flawed due to its inability to account for the distinction between exchange value and use value. Wealth maximization, rooted in the masculine regime of possession and exchange, represses the feminine act of enjoyment, leading to a paradox where achieving its goal would result in the collapse of the market system. The analysis draws on Lacanian theory to explore the sexual impasse underlying this paradox, suggesting that the pursuit of wealth without consideration for enjoyment is self-destructive and unsustainable.

How To Do Things With Hegel, David G. Carlson

Articles

The article argues that contract is not merely a tool for pre-existing personalities but is instead constitutive of personality itself. It challenges the conventional view that personality exists prior to law, instead positing that contract is necessary for the emergence and recognition of personality. The author contends that contract is foundational to legal and personal identity, as it establishes mutual recognition and rights between individuals.

Taxes, Saving, And Macroeconomics, Neil H. Buchanan

GW Law Faculty Publications & Other Works

In response to increasing calls for policies to raise the U.S. saving rate, proposals are once again being offered in Congress to change the tax base from income to consumption. Beyond the important issues of income distribution (that is, outright unfairness) inherent in such a plan, it would simply not work. Indeed, it is based on a fundamental mismeasurement of what counts as saving in the U.S. economy. The logical sequence underlying this proposal is wrong at two crucial points: lowering or eliminating taxes on saving is unlikely to increase saving, and higher saving would be unlikely to increase investment …

Antidumping Law As Means Of Facilitating Cartelization, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

The article uses a specific case to illustrate how three multinational firms used antidumping law to create cartels in Europe and in the United States. It goes on to show how easy it is to use antidumping law to facilitate cartellization and to suggest that this practice is probably common. The author urges antitrust authorities to use the filing of antidumping complaints to trigger antitrust investigations.

Note: A revised version of this working paper is forthcoming in Antitrust Law Journal.

The Darkest Domain: Deference, Judicial Review, And The Bill Of Rights, Daniel J. Solove

GW Law Faculty Publications & Other Works

Deference presents one of the greatest threats to liberalism in the modern age, undermining judicial review for fundamental constitutional rights such as freedom of speech, freedom of religion, and due process. In contrast to existing critiques which dismiss deference as an ideological tool wielded by conservative judges, this article explores deference more systematically and rigorously, addressing it at its conceptual underpinnings. Deference has a strong conceptual backbone rooted in the long-accepted principle that the judiciary must avoid doing what was done in Lochner - the substitution of judicial judgment for that of the policymaker or legislature. The article argues that …

The Community Reinvestment Act: Questionable Premises And Perverse Incentives, Keith N. Hylton, Vincent D. Rougeau

Faculty Scholarship

Having just passed the twentieth anniversary of the enactment of the Community Reinvestment Act ^I ("CRA" or "Act"), this is an appropriate time to take stock of the effectiveness of the legislation and to consider whether it continues to be useful as a tool for addressing the problems of neighborhood decline and discrimination in the lending market. Although discrimination in lending and the decline of certain inner-city neighborhoods is a problem that the CRA has not been able to solve, most observers would agree that the situation has improved since the mid-1970s. ² In particular, there has been notable progress …

Toward A Formative Project Of Securing Freedom And Equality, Linda C. Mcclain

Faculty Scholarship

This Symposium offers an occasion to pursue two important tasks: (1) identifying normative and constitutional foundations for an affimnative governmental responsibility to engage in a "formative project" that would foster persons' capacities for democratic and personal self-government;' and (2) exploring the mix of normative and empirical inquiries necessary to shape the proper goals and parameters of such a project. These tasks are relevant to my larger project of attempting to develop a synthetic, or feminist and liberal, normative account of rights, responsibilities, and governmental promotion of good, self-governing lives.2 That account argues for governmental responsibility to foster the preconditions for …

Trends In The Regulation Of Investment Companies And Investment Advisers, Tamar Frankel

Faculty Scholarship

Statutes, rules and enforcement actions are tea leaves we can read to predict future trends of mutual fund regulation. While statutes and rules are specific, the trends they signify are far more speculative. This Essay engages in such speculation to envision the long-term implications of the recent new N- 1A disclosure form, I the plain English Rule,² and the profile. ³ More generally, the Essay speculates on future trends in Securities and Exchange Commission ("Commission") enforcement, and predicts a continued and stronger use of informal enforcement by the Commission.

Digital Technology And Copyright: A Threat Or A Promise - Introduction, Michael J. Meurer

Faculty Scholarship

On November 14, 1998, Franklin Pierce Law Center (FPLC), in cooperation with the Kenneth J. Germeshausen Center for the Law of Innovation and Entrepreneurship and the PTC Research Foundation, both of which are headquartered at FPLC, held its Seventh Biennial Intellectual Property System Major Problems Conference. While noteworthy for a broadening in scope over previous conferences - from "patent system major problems" to "intellectual property system major problems" - the seventh biennial conference continues a tradition of scholarship and discussion begun in 1987 by former FPLC professor Homer O. Blair.

The discussions in Professor Blair's inaugural major problems conference focused …

Medical Ethics And Human Rights: Legacies Of Nuremberg, George J. Annas, Michael A. Grodin

Faculty Scholarship

Many of our most important human rights documents are the product of the world's horror during the carnage of World War II. The broadest and most powerful declaration of human rights, the Universal Declaration of Human Rights, was adopted by the membership of the new United Nations in 1948. But there are also much more specific statements of the world's aspirations for all of its inhabitants. August 1997 marked the 50th anniversary of the conclusion of the trial of Nazi physicians at Nuremberg, a trial which has been variously designated as the "Doctors' Trial" and the "Medical Case."² In …

Contesting Government's Financial Interest In Drug Cases, Eric D. Blumenson, Eva Nilsen

Faculty Scholarship

In 1984, the civil asset forfeiture law was amended to allow the U.S. Department of Justice (DOJ) and state law enforcement agencies to retain many of the "drug-related assets" they seize for their own law enforcement purposes. Under this amendment, some local law enforcement agencies have managed to double or triple their appropriated budgets by targeting such assets. As former Attorney General Richard Thornburgh has noted, "it's now possible for a drug dealer to serve time in a forfeiture-financed prison after being arrested by agents driving a forfeiture-provided automobile while working in a forfeiture-funded sting operation." The American people, however, …

Finance Law, Wee Ling Loo

Research Collection Yong Pung How School Of Law

No abstract provided.

Choice Of Business Forms For International Entrepreneurship Through Direct Foreign Investment, George Thomas Luis Shenoy

Research Collection Yong Pung How School Of Law

No abstract provided.

Free Competition Or Corporate Theft?: The Need For Courts To Consider The Employment Relationship In Preliminary Steps Disputes, Scott W. Fielding

Vanderbilt Law Review

The scenario occurs daily in many different businesses. A disgruntled employee decides to use her talents, skills, and knowledge of the industry to start a rival enterprise. She plans to do things differently-offer lower prices, a different sales approach, a more service-oriented style. To minimize the risk involved, the employee decides to investigate potential markets, possible locations for the business, and financing. She would also like to discuss first-hand with current clients or fellow employees the possibility that they would follow her into the new business. Concerned with breaching fiduciary obligations, the employee contacts her attorney and asks for advice-specifically, …

Progressing Towards A Uniform Commercial Code For Electronic Commerce Or Racing Toward Nonuniformity?, Maureen A. O'Rourke

Faculty Scholarship

The Magaziner Report encourages the development of a consistent commercial law environment against which electronic commerce transactions may take place. The author considers the current legal landscape, noting that while many efforts are underway to codify aspects of electronic commerce, these efforts are piecemeal in nature and may lead to the very lack of uniformity against which the Magaziner Report counsels. The author then briefly considers what lessons may be learned from the drafting history of the original U.C.C. as well as proposed Article 2B (now the Uniform Computer Information Transactions Act) governing transactions in computer information. She argues that …

Introduction: Looking Ahead In Canadian Law School Education, Joost Blom

All Faculty Publications

The author [who was then Dean] speculates on the coming decade or two in Canadian legal education.

Chief Justice Holmes On The Science And Art (And Politics) Of Judging, David J. Seipp

Faculty Scholarship

Oliver Wendell Holmes, Jr. (1841-1935), twenty-fifth Chief Justice of Massachusetts, needs no introduction to the readers of this journal. Son and namesake of one of America's most popular writers, he was at twenty-four a Civil War hero wounded three times in battle, and at forty a lawyer-scholar whose book of lectures The Common Law would win him international renown. At sixtyone he began three decades as the Great Dissenter on the U.S. Supreme Court, where he exposed the economic theory underpinning the dominant freedom-of-contract ideology. Between 1882 and 1902-between early promise and later fame-he served on the Supreme Judicial Court …

Miller V. Albright: Problems Of Constitutionalization In Family Law, Katharine B. Silbaugh

Faculty Scholarship

From time to time, the Supreme Court chooses to hear a case addressing a family law issue. The family law cases accepted by the Supreme Court almost always present a constitutional challenge because absent a constitutional question, state law governs family law. Because the Supreme Court controls its docket, it is free to select only those cases that, in the view of the Court, pose particularly challenging issues. On most occasions, the Court chooses only those family law cases that present other, unrelated issues of interest to the Court.

Preface: Electronic Medical Information: Privacy, Liability And Quality Issues, Frances H. Miller

Faculty Scholarship

This symposium issue explores the timely topic of health care information and information technology, and their impact on health care delivery. The potential for mischief in this area has been the subject of many a dire prediction, but documented instances of negligence or abuse are thus far relatively rare. As information technology becomes more and more sophisticated and pervasive, however, legal problems are increasingly possible-if not probable-and these articles examine a wide range of issues related to the phenomenon.

Shortage And Tension On The Upper Rio Grande: Protecting Endangered Species During Times Of Drought, Comments From The Perspective Of The Middle Rio Grande Conservancy District, Maria O'Brien

Faculty Scholarship

Looking back at the drought of 1996 and at the efforts to protect endangered species in the midst of the drought, the most glaring fact remains that the water managers and users of the Rio Grande were in crisis management. In fact, despite some efforts, if the drought had manifested with equal or greater intensity in 1997, we would have remained in crisis management. Hence, as we move forward and examine lessons learned, the most vital premise we must return to is the imperative for balance as we undertake the precarious task of allocating water to protect endangered species, serve …

Possible Solutions: Policy Tools To Achieve Flexibility To Meet New Conditions, Preliminary Thoughts For Coping With Future Droughts, Maria O'Brien

Faculty Scholarship

The following comments are premised on the author's experience with the Middle Rio Grande Conservancy District (Conservancy) in New Mexico and its endeavor to implement a water banking system. Background information about the Conservancy is helpful for an understanding of its efforts at water banking.

Review Of The Year Books Of Richard Ii: 1382-1383 By Samuel E. Thorne & George F. Deiser, Eds., David J. Seipp

Faculty Scholarship

Of the making of Year Books there is no end. Three scholarly enterprises - the Rolls Series, Selden Society, and Ames Foundation - have undertaken to provide modern editions and translations of medieval English Year Books, the law French reports of oral pleading and judicial dialogue in lawsuits heard in the Common Bench and other common law courts. The present volume fills a gap in the most recent of these efforts, that of the Ames Foundation of Harvard Law School to print the surviving manuscript Year Books of the reign of Richard 11 (1377-1399). This volume, the sixth year of …

Section 1983 Litigation – Supreme Court Developments, Martin A. Schwartz

Scholarly Works

No abstract provided.

The Politics Of Land Use Reform In New York: Challenges And Opportunities, Patricia E. Salkin

Scholarly Works

No abstract provided.

The World’S Youngest Political Prisoner, Richard Klein

Scholarly Works

Every participant at an international human rights conference in June 1998 received a small pamphlet published by Tibetan supporters of Tibetan Buddhism's highest-ranking figure, the Dalai Lama. Entitled "The World's Youngest Political Prisoner," the pamphlet makes a plea for support for a young boy, now nine years old, who the Chinese government has allegedly kidnapped and detained. The Dalai Lama, who has been living in exile for forty years, claims the boy is the eleventh reincarnation of the Panchen Lama, the second holiest individual in Tibetan Buddhism. This battle over the identification of the reincarnation of a holy man is …

Emotional Intelligence And Legal Education, Marjorie A. Silver

Scholarly Works

The traditional knowledge-based law school curriculum is slowly giving way to one that increasingly exposes students to various lawyering skills. Nonetheless, legal educators are generally averse — or at best ill equipped — to support that training with the empathic and psychological skills good lawyering demands. The author discusses how emotional intelligence is essential to good lawyering and argues that it can and should be cultivated in law school. The article draws upon three examples of popular culture to explore both the absence and possibilities of interpersonal intelligence in the practice of law. The author also describes her own law …