Law Commons^™

An Evaluation Of The 2000 Census And Census Bureau Efforts To Measure The Gross And Net Rates Of Undercount, Eugene Ericksen

North Dakota Law Review

No abstract provided.

Statutes - Telecommunications - From Calea To Carnivore: How Uncle Sam Conscripted Private Industry In Order To Wiretap Digital Telecommunications, Jason Broberg

North Dakota Law Review

No abstract provided.

Subject Index

North Dakota Law Review

No abstract provided.

Fundamental Rights In Conflict: The Price Of A Maturing Democracy, Harlan Loeb, David Rosenberg

North Dakota Law Review

No abstract provided.

The National Labor Relations Board Redefines Medical Employee Under The Wagner Act Regarding Residents And Interns Thereby Opening The Door To Unionization And Collective Bargaining Demands, Jack E. Karns

North Dakota Law Review

No abstract provided.

The Wto And The Rights Of The Individual, Steve Charnovitz

GW Law Faculty Publications & Other Works

The Marrakesh Agreement Establishing the World Trade Organization (WTO) is silent regarding its relationship to the individual. One might presume that an international organization set up to emancipate trade could have no purpose other than upholding trading rights of private actors. But the WTO was not established to achieve "free trade". That goal is absent from the Marrakesh Agreement. Instead, the goals of the Agreement are "reciprocal and mutually advantageous arrangements directed to the substantial reduction of tariffs and other barriers to trade" and the "elimination of discriminatory treatment in international trade relations". The term "reciprocal arrangements" makes clear that …

The Use Of Non-Judicial Procedures To Resolve Employment Discrimination Claims, Charles B. Craver

GW Law Faculty Publications & Other Works

This article discusses the use of non-judicial procedures to resolve employment discrimination claims under the different federal civil rights laws. The two major areas covered involve the use of private arbitration, based upon Supreme Court decisions permitting private employers to require their employees to agree to resolve all of their employment disputes through arbitral procedures, and the possible use of administrative procedures similar to those used by the National Labor Relations Board to resolve unfair labor practice charges. The article explores ways in which the rights of employees not represented by labor organizations could be protected in arbitral proceedings significantly …

Property Rights And Property Rules For Commercializing Inventions, F. Scott Kieff

GW Law Faculty Publications & Other Works

Several recent commentators have criticized trends in the patent system by suggesting that the goals of the system can be better achieved through a variety of approaches that avoid or mitigate the monopoly-type impact of property rights. Suggested alternatives include the use of cash rewards, buy-outs, and liability rules, as distinct from property rules. This paper uses the important contributions made by these commentators to reveal shortcomings in any view of the patent system that focuses only on incentives to engage in inventive activity. The paper offers a new view of the patent system that embraces property rights and property …

Institutional Foundations For Economic Legal Reform Transition Economies: The Case Of Competition Policy And Antitrust Enforcement, William E. Kovacic

GW Law Faculty Publications & Other Works

Since the 1970’s, there has been a progression toward market processes in nations once committed to comprehensive central economic planning. Multinational donors and individual Western countries have expended substantial resources to advise these nations about legal reforms designed to promote this progression. Despite enormous uncertainty and upheaval in the transition from planning to markets, economic liberalization remains the strategy of choice for boosting growth. Competition policy laws prohibiting various restraints of trade and creating public or private rights of action to enforce such prohibitions are common elements in the transition environment. This article examines questions about the proper scope of …

Biotechnology And International Law, Sean D. Murphy

GW Law Faculty Publications & Other Works

Emerging applications in the field of biotechnology hold great promise for promoting the health and well-being of the global community, especially in developing states. Yet significant concerns have emerged about biotechnology in the transnational sphere, concerns that no doubt will increase in decades to come. The purpose of the article is to assess the strengths and limits of existing international norms and structures designed to address these concerns, and to suggest a means for augmenting current structures to make them more effective. International law develops and regulates transnational behavior in a manner that goes well beyond the development treaty regimes. …

'With Friends Like These...': Toward A More Efficacious Response To Affinity-Based Securities And Investment Fraud, Lisa M. Fairfax

GW Law Faculty Publications & Other Works

This article highlights the increase in affinity fraud - securities and investment fraud targeting members of a particular racial or ethnic group perpetrated either by a member of that group or someone claiming to advance the groups' interests. Affinity fraud differs from other forms of securities fraud because perpetrators establish their credibility and the credibility of their investment schemes by appealing to the trust that group members share, often promising that some of the invested funds will be used to assist the group's church or ethnic community. This reliance on group trust and sense of community persuades otherwise cautious people …

Chevron, State Farm And The Epa In The Courts Of Appeals During The 1990s, Robert L. Glicksman, Christopher H. Schroeder

GW Law Faculty Publications & Other Works

This study updates an article published a decade ago by the same authors. It presents a systematic analysis of decisions in which EPA or its administrator was a named party in the federal courts of appeals during the 1990s. Relying on a data base of over 300 cases, the main topics of the study are judicial review of statutory interpretation and of EPA's use of science in its rulemaking proceedings. In both the statutory interpretation and scientific areas, one of our most significant findings is evidence that the federal courts have embraced what Tom Grey has termed the new formalism. …

Refined Comparativism In Constitutional Law, David Fontana

GW Law Faculty Publications & Other Works

This Article considers the possible uses of comparative constitutional law in American constitutional interpretation. Surveying the debates about the uses of comparative constitutional law at the Founding, and tracing these debates to contemporary times by looking at the role of comparative constitutional law in the history of the U.S. Supreme Court, David Fontana suggests that a moderate, workable practice of using comparative constitutional law is consistent with the original intention of the Founders and has some precedent in the case law of the U.S. Supreme Court. This Article lays out a "refined comparativist" approach, whereby a court would consider comparative …

Louis Brandeis And The Race Question, Christopher A. Bracey

GW Law Faculty Publications & Other Works

We live in a culture enamored by our heroes. They are celebrated for their extraordinary accomplishments, and canonized by histories that rarely reflect the true texture of their lives. Legal academics share in these tendencies and, as a result, heroes in the law are often viewed with the same rose-colored glasses accorded to their counterparts in popular culture. The late Louis Brandeis was an Associate Justice on the Supreme Court of the United States from 1916 to 1939. Born to Jewish immigrant parents, he graduated from Harvard Law School, and gained a reputation as America’s “People’s Attorney.” He pioneered an …

The Undersea World Of Foreign Relations Federalism, Edward T. Swaine

GW Law Faculty Publications & Other Works

Uncertainty surrounds the field of foreign relations federalism. The Supreme Court has left lower courts to decide significant issues with little guidance, the Constitution provides little direct instruction, and the tension between national and state authority creates policy arguments on both sides based on uncertain conceptions on injury to these interests. Scholars should seize the opportunity to explore new functions and values for states in today’s globalized world.

Fear Of Oversight: The Fundamental Failure Of Businesslike Government, Steven L. Schooner

GW Law Faculty Publications & Other Works

This article discusses the National Performance Review's (NPR's) broad-reaching effort to reinvent government by making it more businesslike, focusing on its successful effort to reform the Federal procurement process. The article shows that the reformed system couples greatly increased buyer discretion with dramatically reduced oversight of government spending - both internal and external. This article asserts that this combination erodes the public's confidence in the procurement system, violates established norms, and is antithetical to a host of Congressional mandates and policies. More particularly, the article provides empirical evidence of the dramatic, sustained reduction in government contract related litigation during the …

The Coin Of The Realm: Poverty And The Commodification Of Gendered Labor, Naomi R. Cahn

GW Law Faculty Publications & Other Works

This Article examines the commodification of household labor performed by poor women. This Article also explores various perspectives on commodification, analyzing the benefits and drawbacks of commodification rhetoric. While I do not advocate payment of actual wages to mothers, I believe that focusing on the valuation of household work can be useful in clarifying some of the contemporary dilemmas faced by poor women.

I conclude that market understandings can enrich family law just as family understandings can enrich market laws. My goal is not to diminish the role of caretaking by suggesting that everything has a market price. Instead, I …

Pennhurst, Chevron, And The Spending Power, Peter J. Smith

GW Law Faculty Publications & Other Works

Under Pennhurst, a court may conclude that Congress has imposed a condition on the grant of federal funds to a state recipient only if Congress unambiguously expressed its intent to do so; under Chevron, the existence of statutory ambiguity with respect to a particular issue requires the reviewing court to defer to a reasonable agency interpretation of the ambiguous statutory language. What, then, should a court do when the terms of a federal-state grant program's condition are not fully elaborated in the statute and when the agency charged with enforcing the statute has issued regulations that purport to define the …

The Long Lingering Shadow: Law, Liberalism, And Cultures Of Racial Hierarchy And Identity In The Americas, Robert J. Cottrol

GW Law Faculty Publications & Other Works

This is an Article on race relations and comparative legal history. It contrasts the law of race and slavery in three Latin American nations, Brazil, Colombia, and Venezuela, with the parallel history in the United States. The Article examines the Afro-Latin experience as a critical issue in its own right and as a way to better inform our discussion of racial hierarchy, identity, and legal remedy in the United States. This Article examines the paradoxical role played by liberal legal and cultural norms in the United States. It shows how liberalism helped create a system of castelike separation between black …

Beyond Counting Votes: The Political Economy Of Bush V. Gore, Michael B. Abramowicz, Maxwell L. Stearns

GW Law Faculty Publications & Other Works

The Supreme Court Justices' votes in Bush v. Gore revealed a doctrinal inversion. The conservative justices limited the Florida Supreme Court's power to construe state election law and embraced an expansive application of equal protection doctrine to determine the outcome of a presidential election, while the liberal justices advocated judicial restraint in presidential elections and respect for state court construction of state law. This anomaly invited claims in the popular press and in the legal academy that justices were behaving strategically, a timely observation given an increasing focus in recent judicial politics literature on strategic behavior by justices. In this …

Mediation In Practice: Common Law And Civil Law Perspectives Compared, Nadja Alexander

Research Collection Yong Pung How School Of Law

Australian mediation practice is thriving. Effective forms of mediation are practised in court-connected schemes, in the public sector, in the community justice sector and in the private business sector. Indeed, no industry is excluded from the application of mediation. In contrast, Hoffmann-Riem laments that despite many years of discussions about ADR (alternative dispute resolution) in Germany, mediation plays a marginal role only. Further, Labes states that 'ADR mechanisms are relatively obscure methods in Germany.' The comparison between Australia and Germany is particularly interesting because it considers both a common law and a civil law tradition. This essay will discuss the …

Synthesis In Trial Procedures? The Experience Of The International Criminal Tribunals, Mark Findlay

Research Collection Yong Pung How School Of Law

Critical to analysing the recent synthesis of criminal trialprocedures is an understanding of the internationalisation of criminal law andprocedure. As well as the creation of international tribunals to investigateand try crimes of world significance, there is emerging an internationaljurisprudence on criminal law (and procedural hybrids to support and developthis) which require integrated analysis.

Regulation Of Religious Proselytism In The United States, Howard Hunter, Polly J. Price

Research Collection Yong Pung How School Of Law

Howard Hunter and Polly Price examine the components of the US legal system that affect proselytism, focusing on the contradictions between the constitutional protection of religious freedom and legal constraints on proselytism. Hunter and Price comprehensively review the regulation of proselytism in both public and private spaces in the United States, analyze the justifications for these regulations, and suggest probable future issues of debate regarding religious freedom. Additionally, Hunter and Price argue that the regulation of proselytism has led to a failure to protect religious minorities, and in some cases contributed to their persecution.

Gaming And Wagering Contracts, Boon Leong, Andrew Phang

Research Collection Yong Pung How School Of Law

No abstract provided.

Red Light, Green Light: Has China Achieved Its Goals Through The 2000 Internet Regulations?, Clara Liang

Vanderbilt Journal of Transnational Law

In the mid-1990s, when the Internet began to burgeon in China, many thought that the rule of the Chinese Communist Party (CCP) would finally come to an end. The combination of foreign capital and trans-border information exchange promised a potential influx of democratic ideas and ideals. The CCP responded with both physical and regulatory limits on the use of the Internet by the Chinese people. Some commentators characterized these limits as feeble attempts by the CCP to control a nebulous medium. Others viewed the limits as ineffective steps by the government to become a highly developed authoritarian state.

This Note …

Palestinian Private Property Rights In Israel And The Occupied Territories, Stacy Howlett

Vanderbilt Journal of Transnational Law

As the birth pangs of an emerging Palestinian state rage on, one question bars settlement, reconciliation, and peace: who is entitled to the land? On a macrocosmic level, this question has and will be answered through diplomatic negotiations, political pressure, and violence. The microcosmic question of the disposition of private property, however, must be taken into consideration before any lasting peace agreement can be reached.

The rights and interests of Palestinian refugees and Israeli settlers with respect to the land they have an interest in must be balanced with national needs for territorial continuity and peace. By tracing the transfer …

U.K. Charity Law: Is It Creating A True Democracy Of Giving?, James R. Michels

Vanderbilt Journal of Transnational Law

In November 1999, the British government announced important legislative reforms affecting the various methods of providing charitable contributions. The government expressed its desire to create a "democracy of giving" by expanding tax relief for charitable donations. These changes took effect in April 2000.

This note argues that the recent legislation reforms, while a step in the right direction, do not create a true "democracy of giving." In arriving at this conclusion, the note will outline the evolution of British tax law related to individual charitable donations. The note will also explore the problems experienced by the charitable sector that prompted …

The Rule Of Law In China, Eric W. Orts

Vanderbilt Journal of Transnational Law

This Article explores contemporary meanings of the rule of law with a focus on its meaning in Chinese history and tradition, as well as Chinese legal institutions. Part II considers the concept of law in China, from early understandings in Confucianism and Legalism to more recent treatments in Chinese Communism. It also reviews efforts that the People's Republic of China has made in recent decades to strengthen its legal institutions. Part III begins with a discussion of the Western jurisprudential idea of the rule of law and suggests a distinction between two basic understandings: (1) rule by law as an …

An Institutional Analysis Of Consumer Law, A. B. Overby

Vanderbilt Journal of Transnational Law

This Article explores the revival of interest in consumer protection in the United States, and the impact of this revival on the consumer movement. The Author examines the influence that political organizations and institutions have upon the final shape and content of consumer law in the United States and European Union. The Article begins with a general introduction to institutional theory across academic disciplines and to the institutional environment and arrangements in which consumer lawmaking proceeds in the United States and Europe. Next, the Article assesses consumer initiatives in the United States and the European Union, focusing on deceptive advertising, …

A Brave New Lochner Era? The Constitutionality Of Nafta Chapter 11, Steve Louthan

Vanderbilt Journal of Transnational Law

In the eight years since its adoption, NAFTA Chapter 11 has escaped significant scrutiny from academics and journalists alike. However, with the recent filing of several Chapter 11 expropriation claims involving U.S. states, Chapter 11 has begun to gain some notoriety in the press and sparked at least two legal symposia this past year.

This Note begins by highlighting the recent Methanex Chapter 11 claim involving the State of California. Methanex, a Canadian chemical manufacturer and importer, claimed $1.6 billion in damages over California's ban of the chemical MTBE. Despite the EPA'S classification of MTBE as a possible carcinogen and …