Law Commons^™

Privatizing Regulation: Whistleblowing And Bounty Hunting In The Financial Services Industries, Henry Ordower, James Fisher, Ellen F. Harshman, William B. Gillespie, Leland Ware, Fred C. Yeager

All Faculty Scholarship

Addresses use of whistleblowers and suggests private enforcement methodologies to supplement or supplant public enforcement activities in financial services under new law.

Remedies In Animal-Related Litigation, Joan E. Schaffner

GW Law Faculty Publications & Other Works

This chapter discusses the challenges of determining appropriate remedies in cases involving animals with a focus on companion animals. Damages fall into one of two categories: substitutionary relief, which is based on the value of loss of the animal, and specific relief, which “seeks to either avoid harm, undo the harm, or repair the harm in kind.” In private law cases the primary relief sought is substitutionary damages. The changing role of companion animals in people’s lives is leading to an expanding range of available damages, such as companionship value, emotional distress and punitive damages. Of course, the jurisdiction’s substantive …

The Impact Of Student Gpas And A Pass/Fail Option On Clinical Negotiation Course Performance, Charles B. Craver

GW Law Faculty Publications & Other Works

This article explores the possible correlation between student GPAs when they graduate and the impact of a pass/fail option on Negotiation course results. The course requires students to engage in a series of negotiation exercises, with the comparative results having a direct impact on final course grades. I wanted to determine whether better students, reflected in GPAs, would achieve better negotiating results based upon the thought that better students are more intelligent, more articulate, and moreindustrious. I examined data from fifteen classes and found no statistically significant correlation between student GPAs and negotiation results. I believe that these findings are …

Toward A Prudential And Credibility-Centered Parol Evidence Rule, Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

The most influential judicial voices on the parol evidence rule are Roger Traynor and Richard Posner. Traynor pieced together aspects of positions championed by the antipodal titans of contracts, Arthur Corbin and Samuel Williston. Posner cuts through tangled doctrinal webs to show how the unifying talisman of the doctrine is credibility. Everything in parol evidence rule doctrine, in this formulation, can be understood in terms of two categories of evidence: subjective and objective. While the Traynor composite blended aspects of the titans of contracts into an incoherent stew, the Posner composite unites the central theme of the titans' positions, holding …

Facilitating Scientific Research: Intellectual Property Rights And The Norms Of Science - A Response To Rai And Eisenberg, F. Scott Kieff

GW Law Faculty Publications & Other Works

Arti Rai's article in the Fall 1999 issue of the Northwestern University Law Review explores the proper use of both legal rules and prescriptive norms to shape behavior in the basic biological research community. Rai's article builds upon the extensive work in this area by Rebecca Eisenberg, which first attained prominence through Eisenberg's article in the December 1987 issue of the Yale Law Journal. Eisenberg concludes that the use of patents in the area of basic biological research may frustrate central norms of the community. Rai prescribes concerted public and private action as the best tools for avoiding patents and …

Representing The Poor And Homeless: Innovations In Advocacy Tackling Homelessness Through Economic Self-Sufficiency, Susan R. Jones

GW Law Faculty Publications & Other Works

The homeless community is diverse, and the causes of homelessness are complex. As part of a Symposium entitled, "Representing the Poor and Homeless: Innovations in Advocacy Tackling Homelessness through Economic Self-sufficiency," the author discusses the challenges faced by those who attempt to address the needs of homeless people. This essay focuses on policies and innovations in income creation for homeless people. The author advocates for integrated approaches to homelessness prevention and policies that combine housing, income, and social services. In this regard, the author explores economic self-sufficiency through such innovations as microenterprise development, a rapidly growing and innovative strategy in …

Karl Llewellyn's Fading Imprint On The Jurisprudence Of The Uniform Commercial Code, Gregory E. Maggs

GW Law Faculty Publications & Other Works

When Karl Llewellyn directed the creation of the Uniform Commercial Code (U.C.C.), he naturally wanted to implement his jurisprudential ideas. He succeeded in giving the U.C.C. at least five important features inspired by Legal Realism. In particular, as a result of his influence, the U.C.C.: (1) favored open-ended standards over firm rules; (2) avoided formalities; (3) required and facilitated the "purposive interpretation" of its provisions; (4) did not attempt to provide an exclusive statement of the law, but instead directed courts to supplement its rules with general legal and equitable principles; and (5) provided a range of remedies that principally …

Cautious Skepticism About The Benefit Of Adding More Formalities To The Manual For Courts-Martial Rule-Making Process: A Response To Captain Kevin J. Barry, Gregory E. Maggs

GW Law Faculty Publications & Other Works

In Modernizing the Manual for Courts-Martial Rule-Making Process: A Work in Progress, 165 Mil. L. Rev. 237 (2000), Captain Kevin J. Barry, U.S. Coast Guard (Retired), advances seven specific proposals for improving the methods by which the procedural and evidentiary rules for courts-martial are made. This article addresses Captain Barry-s proposals. On the whole, none of the proposals is radical or dangerous. Indeed, each is closely analogous to procedures in the federal civilian criminal justice system. In addition, no insurmountable legal obstacles would prevent their adoption. Yet, closer inspection suggests that, in light of all the progress that already has …

En Banc Revisited, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

Legal commentators have proposed a variety of solutions to the perceived problems of the U.S. courts of appeals, from splitting large circuits to assuring partisan balance in panel decisions. They have always assumed, however, that judges a particular appellate court should have sole responsibility for creating the law of that circuit, except when caseload pressures make it necessary to borrow visiting judges. In this Essay, Professor Abramowicz proposes using visiting judges in a more important role: en banc decision-making. Under this proposal, en banc decisions for one circuit would be made entirely by courts of appeals judges randomly selected from …

Accounting Standards And German Supplementary Pensions: The Emerging Framework Underpinning Global Finance, Daniel I. Gordon

GW Law Faculty Publications & Other Works

In this paper we focus on the current status of German employer-sponsored supplementary pensions in the context of moves towards the harmonization of international accounting standards. We emphasize the changing standards used to measure pension liability, and the consequences of these changes for (firstly) corporate management discretion and (secondly) German under-funded systems of defined benefit pensions. In combination, we show that claimed historical differences between the Anglo-American market for corporate control and the German system of entrenched management within interlocking boards of supervision are now less compelling than assumed. Adoption of international and US financial accounting standards by leading German …

German Social Market In The World Of Global Finance: Pension Investment Management And The Limits Of Consensual Decision Making, Daniel I. Gordon, Daniel Mansfield, Adam Tickell

GW Law Faculty Publications & Other Works

In a previous paper we emphasised the changing national and international accounting standards used to measure net pension liability. Beginning with the implications of this analysis for the financing of German employer-sponsored pensions, in this paper we focus upon the internal management of corporate pension assets and liabilities. Two issues drive the analysis. One has to do with the emerging coalescence of interests joining corporate management and shareholders in relation to the management of pension assets and liabilities. The second issue has to do with the allocation of risk and uncertainty between social partners when negotiating the financing and final …

Negotiating Federalism: State Bargaining And The Dormant Treaty Power, Edward T. Swaine

GW Law Faculty Publications & Other Works

The orthodox view that states have no role in U.S. foreign relations is not only inconsistent with their place in the modern global economy, but the constitutional basis for a "dormant" bar on state participation - that is, absent a controlling federal statute or treaty - is obscure. Revisionist scholarship, and recent Supreme Court case law, suggest that Congress alone should decide when the states must stay out of foreign relations.

In this article, I argue that both the orthodox and revisionist views neglect an alternative basis for a judicial role - the Treaty Clause, enforced through the dormant treaty …

Review Of The Expanding Role Of State And Local Governments In U.S. Foreign Affairs, Edward T. Swaine

GW Law Faculty Publications & Other Works

This Article reviews The Expanding Role of State and Local Governments in U.S. Foreign Affairs by Earl H. Fry, a book accounting how states and localities are devoting increasing resources to developing their own foreign policy. Fry description is useful and timely, but his allusions to the constitutional basis for a federal monopoly on foreign policy are too summary. As a policy matter, his suggestion for a consensus-driven solution to reconcile competing state and national interests depends on the ability of stakeholders to reach agreements in an increasingly politicized environment, and downplays the importance of foreign actors in these decisions. …

Cyberspace And The State Action Debate: The Cultural Value Of Applying Constitutional Norms To 'Private' Regulation, Paul Schiff Berman

GW Law Faculty Publications & Other Works

Regulation in cyberspace does not consist only of laws issued and enforced by sovereigns. Instead, private parties and standard-setting bodies, employing the technology of online interaction, will increasingly be able to regulate activity, which might potentially upset many of the provisional balances we as a society have struck in areas such as free speech, privacy, and intellectual property. The question then becomes: how do we evaluate this "private" regulation? Are constitutional norms applicable? Answering such questions requires a reinvestigation of legal doctrine and theory concerning the distinction between "state action" (which is generally subject to constitutional constraints) and "private ordering" …

An Observation And A Strange But True 'Tale': What Might The Historical Trials Of Animals Tell Us About The Transformative Potential Of Law In American Culture?, Paul Schiff Berman

GW Law Faculty Publications & Other Works

Few would dispute that law and legal procedures lie at the core of American self-identity and are woven deeply into the fabric of our culture. Indeed, our nation's faith in law has frequently been the subject of criticism. Most recently, self-proclaimed "communitarian" commentators have warned that our insistence on legal solutions is encouraging us to become a society of litigants whose attachment to "rights talk" and legal battles is thwarting our ability to reach consensus on social issues or instill shared values in our communities. While there are many possible responses to such a critique, this Essay offers one that …

Policing Women: Moral Arguments And The Dilemmas Of Criminalization., Naomi R. Cahn

GW Law Faculty Publications & Other Works

This essay concerns the peculiar dilemmas of criminalization for women. I explain the ways in which women are policed, ranging from the monitoring of motherhood to the criminalization of prostitution. This policing may be through the criminal law, civil law, or more subtly, through cultural attitudes that devalue women's work yet simultaneously encourage women to do that work. Hence, I argue that in order to sensitize, reform, and change the criminal justice system, it is critical to consider women's needs.

This essay also pays special attention to the impact of the criminal justice system on children. Specifically, I examine the …

The Power Of Caretaking, Naomi R. Cahn

GW Law Faculty Publications & Other Works

In this Article, I explore how the roles of women at home are related to their roles at work. By explaining the dynamics of household changes, this Article provides an additional understanding of the need for women's home and workplace equality. I argue that the power that women have gained from their role as a caretaker within the home is a double-edged sword: acting as the primary caretaker, while extremely rewarding, is simultaneously a “confining” position. Until both men and women see themselves as nurturers and workers, neither the workplace nor the family will undergo fundamental change.

This Article examines …

Panel Two: Who’S Minding The Baby?, Catherine J. Ross, Adrienne Davis, Marion Crain, Bonnie Thornton Dill, Nancy Dowd, Joan Williams

GW Law Faculty Publications & Other Works

This publication is a transcript of remarks made by multiple law professors discussing the relationship between race, gender, and class and focusing on feminism and the challenges faced by working mothers.

Federalism And Mass Tort Litigation, Roger H. Trangsrud

GW Law Faculty Publications & Other Works

There is no justification for displacing state tort law by adopting a new federal law of torts in order to facilitate mass tort class actions in federal court. Tort law law has traditionally and properly been the province of state law. The principal problem of mass tort litigation for the federal government is the congestion in the federal district courts caused by the avalanche of state tort claims that have found their way there. This has occurred for reasons not attributable to the federal government. Specifically, state legislatures and state supreme court justices have expanded available claims and remedies under …

En Banc Revisited, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

Legal commentators have proposed a variety of solutions to the perceived problems of the U.S. courts of appeals, from splitting large circuits to assuring partisan balance in panel decisions. They have always assumed, however, that judges a particular appellate court should have sole responsibility for creating the law of that circuit, except when caseload pressures make it necessary to borrow visiting judges. In this Essay, Professor Abramowicz proposes using visiting judges in a more important role: en banc decision-making. Under this proposal, en banc decisions for one circuit would be made entirely by courts of appeals judges randomly selected from …

Evaluating A Change To Seminar-Style Teaching, Kirsten Anker, Catherine Dauvergne, Mark Findlay, Jenni Millbank

Research Collection Yong Pung How School Of Law

While the use of small to medium-sized seminar-style groups has long been a feature of some Australian law faculties, such as the University of New South Wales, it is a recent innovation in others, including the University of Western Australia and the University of Adelaide. In March 1996 the Faculty of Law at the University of Sydney made a decision to move from a traditional lecture and tutorial structure to seminar-style classes of limited size. This article discusses the reasons for the move away from a traditional lecture/ tutorial format to an interactive seminar-style model of teaching. The paper explains …

Educating Russia's Future Lawyers--Any Role For The United States?, Jane M. Picker, Sidney P. Picker, Jr.

Vanderbilt Journal of Transnational Law

In the wake of the devaluation of the Russian ruble in 1998 and the resulting flight of foreign investment, which was exacerbated by allegations of massive corruption and capital flight at the highest levels of government in 1999, the question of an appropriate role for the United States in helping Russia to establish an environment able to attract and retain foreign and domestic capital, to maintain a viable globally integrated market-based economic system, and to create a stable civil society, is under discussion.

The authors believe that a viable market economy will not flourish in Russia until a more stable …

Commercial Norms, Commercial Codes, And International Commercial Arbitration, Christopher R. Drahozal

Vanderbilt Journal of Transnational Law

This Article examines whether the incorporation of commercial norms into commercial codes is an appropriate law-making strategy. Most commercial codes, including the Uniform Commercial Code, regard common business practices as an important source for courts to consider when resolving contract disputes. Yet some scholars criticize this incorporation strategy, arguing that reliance on commercial norms is often inappropriate and may distort the true nature of the parties' agreement. Reliance on commercial norms does restrict the ability of contracting parties to allocate part of their agreement to extra-legal means of enforcement. Nevertheless, this Article asserts that those costs may be outweighed by …

Polish Communications Law: Telecommunications Takes Off In Transition Countries But At What Price Are They Becoming Wired?, Jennifer L. Feltham

Vanderbilt Journal of Transnational Law

Internationally, the urge to expand and improve telecommunications services is spreading. Transition countries, attempting the leap from Third World status to becoming world leaders, have caught the fever and have attempted to reform their regulations governing telecommunications. In large part these laws have induced slow liberalization of the communications sector with an intrusive regulatory agency guarding every step taken towards privatization. The World Trade Organization's General Agreement on Trade in Services (GATS) encourages transition countries to use privatization as a way to increase funding for communications equipment. Many transition countries signed the GATS agreement in the hope of attracting international …

A Technological Dream Turned Legal Nightmare, Brandon E. Ehrhart

Vanderbilt Journal of Transnational Law

The U.S. Global Positioning System (GPS) provides precise positioning information to anyone in the world, regardless of nationality, as long as they have access to an inexpensive receiver. However, in managing and providing the GPS for no charge, the United States may have opened itself to worldwide tort exposure. This Note analyzes U.S. liability for negligently operating the GPS under the Federal Tort Claims Act (FTCA) in four categories.

First, this Note examines the transformation of the GPS from its domestic military beginnings to its current role as the foremost radionavigation technique in history and as a vital tool to …

Europe And Overseas Commodity Traders V. Banque Paribas London: Zero Steps Forward And Two Steps Back, Paige K. Willison

Vanderbilt Journal of Transnational Law

While international securities transactions have become the norm in today's globalized economy, such transactions necessarily implicate the laws of more than one nation, thereby creating both conflict and confusion. Due to the depth and breadth of U.S. securities laws, plaintiffs often prefer to sue in the United States under U.S. law. Yet inappropriately applying U.S. law to transnational transactions may offend notions of comity. This Note discusses the different tools used to decide the following jurisdictional issues. First, under what circumstances do U.S. anti-fraud rules apply to securities transactions? Second, under what circumstances do U.S. registration laws apply? Over the …

East Timor, The U.N. System, And Enforcing Non-Recognition In International Law, Thomas D. Grant

Vanderbilt Journal of Transnational Law

This Article seeks to assess how the U.N. system has enforced regimes of non-recognition under international law. Claims by certain communities to constitute states and claims by some states to hold title to certain pieces of territory have met with opposition from various quarters. At times, the United Nations has attempted to organize international non-recognition of such claims. The claim by the state of Indonesia to hold title to East Timor presents a vivid and important example of an attempt to set up a regime of non-recognition by the United Nations.

The Article examines how the United Nations addressed the …

Women And Globalization: The Failure And Postmodern Possibilities Of International Law, Barbara Stark

Vanderbilt Journal of Transnational Law

This Article examines the role of international law, particularly human rights law, as it relates to the process of globalization and its effects on women. Initially, the Article sets the stage by describing the course of globalization and the dramatic impact it has had on the world economy. The Author next examines the multiple and contradictory consequences of globalization for women.

The Article approaches this analysis from two perspectives. First, from a 'classic perspective," the Author contends that international law is the only legal system with the potential to regulate the principal agents of globalization--multinational corporations, banks and investment firms, …

Consolidating Democracy On A Troubled Continent: A Challenge For Lawyers In Africa, Okechukwu Oko

Vanderbilt Journal of Transnational Law

African countries during the post-colonial era have struggled to establish democratic governments, too frequently succumbing to authoritarian, usually military, rule. This instability, as nations swing from one regime to another, has hindered the economic growth and respect for civil rights that citizens had hoped would be the legacy of independence. Despite such abuses, both the elite and the masses in Africa recognize that democracy represents the best hope for future stability. In countries like Nigeria, citizens are demanding the replacement of corrupt, paternalistic military officers with democratic, civilian rule.

Even the election of civilian administrations, however, offers no guarantee that …

Birthright Citizenship In The United Kingdom And The United States, Michael Robert W. Houston

Vanderbilt Journal of Transnational Law

The common law concept of territorial birthright citizenship is the foundation for the Fourteenth Amendment's Citizenship Clause, which confers citizenship on those born within the United States and "subject" to its "jurisdiction." Likewise territorial underpinnings were the basis for over 375 years of birthright citizenship within the United Kingdom. Contemporary discourse with respect to territorial birthright citizenship, however, has shifted from its common law basis and now focuses on whether citizenship ought to inhere in children born to illegal immigrants. In the United Kingdom, the British Nationality Act of 1981 abandoned territorial birthright citizenship in favor of parentage based citizenship. …