Law Commons^™

Twenty-Five Years Later With Promises To Keep: Legal Education In Dispute Resolution And Training Of Mediators, Lela P. Love

Articles

No abstract provided.

Solving The Apprendi Puzzle, Kyron Huigens

Articles

No abstract provided.

Toward The Formation Of "Innocence Commissions" In America, Barry C. Scheck, Peter J. Neufeld

Articles

The article advocates for the establishment of "innocence commissions" to investigate and address wrongful convictions in the U.S. criminal justice system. Drawing parallels to the National Transportation Safety Board (NTSB), which investigates transportation accidents, the authors propose that these commissions would identify systemic defects leading to wrongful convictions and recommend reforms to prevent future miscarriages of justice. They emphasize the need for independence, subpoena power, and public accountability to ensure the commissions' effectiveness.

Evaluating The Sex Discrimination Argument For Lesbian And Gay Rights, Edward D. Stein

Articles

The sex discrimination argument for lesbian and gay rights analyzes laws that discriminate on the basis of sexual orientation in terms of sex discrimination. For example, sodomy laws that prohibit only same-sex sexual activities are analyzed as discriminating on the basis of sex because they prohibit women from doing something men are permitted to do, that is, have sex with women. This argument has been championed by some scholars and litigators, and it has persuaded some judges. Edward Stein shows that there are sociological, theoretical, moral, and practical problems facing the sex discrimination argument. He suggests that there are better …

Personal Privacy And Common Goods: A Framework For Balancing Under The National Health Information Privacy Rule, Lawrence O. Gostin, James G. Hodge Jr.

Georgetown Law Faculty Publications and Other Works

In this Article, we discuss how these principles for balancing apply in a number of important contexts where individually identifiable health data are shared. In Part I, we analyze the modern view favoring autonomy and privacy. In the last several decades, individual autonomy has been used as a justification for preventing sharing of information irrespective of the good to be achieved. Although respect for privacy can sometimes be important for achieving public purposes (e.g., fostering the physician/patient relationship), it can also impair the achievement of goals that are necessary for any healthy and prosperous society. A framework for balancing that …

Afterword: The Linkage Problem – Comments On Five Texts, John H. Jackson

Georgetown Law Faculty Publications and Other Works

The problem of linkage between "non trade" subjects and the World Trade Organization is certainly one of the most pressing and challenging policy puzzles for international economic relations and institutions today. It is extensively and harshly debated by political leaders and diplomats, at both the national and the international levels of discourse, and is one of several issues that derailed the WTO Third Ministerial Conference in Seattle in late 1999. It also posed problems for the Fourth Ministerial Conference in Doha, Qatar, in November of 2001, and it threatens to derail the successful functions of the WTO itself. With the …

Academic Support Programs: Effective Support Through A Systemic Approach, Adam Todd

School of Law Faculty Publications

Academic support programs in American law schools ("ASPs") are often implemented with the express purpose of promoting social, racial, and economic diversity in the legal profession, which has historically excluded these populations. This progressive purpose, however, may not ultimately be achieved unless academic support is fully integrated into the law school academy. This Article argues that an ASP needs to go beyond one-on-one counseling of students in academic difficulty.

Further, ASPs need to engage the faculty and administration of a law school in the academic support mission. This Article also suggests concrete steps that ASP professionals can follow to improve …

In Touch With The People He Serves, Paul J. Noah

North Dakota Law Review

No abstract provided.

Photographs In The North Dakota Law Review, Ted Smith

North Dakota Law Review

No abstract provided.

Insurance - Automobile Insurance: The North Dakota Supreme Court Rules That Head Of Household's Liability Under The Family Car Doctrine Is Not Necessarily Covered By His Automobile Insurance Policy, Mitchell D. Armstrong

North Dakota Law Review

No abstract provided.

The Law Of Environmental 'Ppms' In The Wto: Debunking The Myth Of Illegality, Steve Charnovitz

GW Law Faculty Publications & Other Works

This Article explains and appraises the WTO law of Processes and Production Methods (“PPMs”). A better understanding of the law and of how PPMs operate can help governments and stakeholders improve the management of outwardly directed PPMs. Governments presently have divergent views about WTO rules. These diverging views have led to an inside-out debate from which a political consensus cannot easily emerge. This Article examines the relevant WTO case law on the issue of PPMs and concludes that PPMs are, contrary to some commentators, not prohibited by the WTO. Finally, the Article shows how a correct legal reading may enable …

Triangulating The World Trade Organization, Steve Charnovitz

GW Law Faculty Publications & Other Works

This Article presents an analytic method for considering proposals to expand the scope of the WTO. In doing so, the Article organizes competing ideas concerning the rationale for the WTO and shows how varying assumptions can lead to different conclusions on the proper content of international trade law. This Article seeks to advance the debate by comparing these assumptions and also considering the key literature about trade linkage. The Article proceeds in three parts. Part I shows why the purpose of the WTO is not self-evident and how a framework can be useful for improving the debate about the organization's …

The Seventh Amendment Right To A Civil Jury Trial: The Supreme Court Giveth And The Supreme Court Taketh Away, Joan E. Schaffner

GW Law Faculty Publications & Other Works

This article examines the Supreme Court’s jurisprudence relating to the historic Seventh Amendment right to a jury trial. I describe the three-prong analysis that the Court employs, analyze the Court’s decisions that analyze the jury trial, and conclude that the Court’s decisions are consistent with its Seventh Amendment line of cases in which it emphasizes the preservation of the basic right to jury under the first inquiry, while it de-emphasizes the essence and scope of that right under the second and third inquiries.

Trans-Parliamentary Associations In Global Functional Agencies, Steve Charnovitz

GW Law Faculty Publications & Other Works

This article examines a new phenomenon, transparliamentary activism that focuses on particular international issues or international organizations. For example, the Parliamentary Conference on the World Bank. Such parliamentary organizing has a political significance beyond the usual transnational NGO activities because parliamentarians are elected officials. The transparliamentary activism discussed here differs from the traditional interparliamentary association going back over a hundred years. The article discusses the recent developments in the World Trade Organization and the World Bank.

Transitional Justice In Afghanistan: The Promise Of Mixed Tribunals, Laura T. Dickinson

GW Law Faculty Publications & Other Works

In the wake of the September 11th attacks on the World Trade Center and the Pentagon, how to apprehend, question, and punish the perpetrators remains a difficult question to answer. Moreover, the question of where, and how, to try suspects raises a series of deeper questions about the role of criminal accountability in times of conflict and war.

Scholars in the emerging field of transitional justice do not focus on the question of terrorism specifically, however, they study the ways in which societies that are attempting to confront past and lingering mass atrocities do so through a variety of means: …

Using Legal Process To Fight Terrorism: Detentions, Military Commissions, International Tribunals, And The Rule Of Law, Laura T. Dickinson

GW Law Faculty Publications & Other Works

Following the 9/11 terrorist attacks, those arguing that international law cannot serve as an effective tool in the fight against terrorism have grown. The ranks of international relations realists, who view international law primarily as a cover for strategic interests and thereby as lacking any independent bite, has swelled. In November 2001, President Bush issued an executive order asserting the authority to use military commissions to try individual terrorism suspects captured by the United States. Such commissions would be conducted unilaterally and would not be required to include procedural safeguards to protect the rights of the accused. This crisis has …

Patents For Environmentalists, F. Scott Kieff

GW Law Faculty Publications & Other Works

This essay, written for the National Association of Environmental Law Societies' (NAELS) annual meeting, explains how patent law operates generally with an emphasis on how it may impact the environment in particular. In so doing, the essay addresses from a patent perspective some representative concerns relating to patents that appear to be prevalent in the environmental literature and shows how the patent system may provide substantial benefit for those favoring the environment.

Current Issues In The Changing Roles And Practices Of Community Economic Development Lawyers, Susan R. Jones

GW Law Faculty Publications & Other Works

This Article, part of a symposium entitled "Lawyering for a New Democracy," explores current issues related to the changing roles of public interest lawyers engaged in Community Economic Development (CED) in a new democracy. After discussing current issues and trends in CED practice, the author concludes that CED is inherently privatized and is becoming more so with the national emphasis on economic self-sufficiency. The author provides lessons from law school clinical practice of enhanced strategic collaborations and highlights current trends and issues involving technology, leadership development, community organizing, asset accumulation, and social capital. Furthermore, leadership development and community organizing are …

The Middle Way: What Contemporary Liberal Legal Theorists Can Learn From Aristotle, Miriam Galston

GW Law Faculty Publications & Other Works

American legal theorists frequently ask whether and how theorists, citizens, lawmakers, judges, and other public officials can attain truth, correctness, or certainty in their legal and moral views. This essay discusses the views of contemporary liberal legal theorists who have attempted to answer these questions in a way that is neither objectivist nor formalist, on the one hand, nor subjectivist or relativist, on the other, referring to authors that make up this group as theorists of the "middle way." The essay suggests areas in which such legal thinkers might profit from studying Aristotle's writings about ethics and politics. Two approaches …

Regulating Electronic Commerce, Gregory E. Maggs

GW Law Faculty Publications & Other Works

This is not an ordinary law review article. It is a report submitted at the 16th International Congress of Comparative Law, held in Brisbane, Australia, on July 14-20, 2002. The report addresses a number of subjects identified by Dr. Anne Fitzgerald, the General Reporter for the section on Electronic Commerce. The general purpose of the report is to summarize the current state of the law in the United States. At the conference, other reporters summarized the current state of the law in their own countries.

Form Over Substance?: Officer Certification And The Promise Of Enhanced Personal Accountability Under The Sarbanes-Oxley Act, Lisa M. Fairfax

GW Law Faculty Publications & Other Works

Form Over Substance?: Officer Certification and the Promise of Enhanced Personal Accountability under the Sarbanes-Oxley Act, 55 Rutgers L. Rev. 1 (2002), argues that the requirement under the Sarbanes-Oxley Act (the "Act") that particular officers certify the accuracy of the financial information contained in their company's periodic reports fails to alter significantly existing standards of liability for officers who signed or approved such reports prior to the Act's passage. This failure creates cause for concern about the Act's potential to meet its objectives. Indeed, the certification requirement represents one of the Act's principal symbols of officer personal accountability. By demonstrating …

The Sarbanes-Oxley Act As Confirmation Of Recent Trends In Director And Officer Fiduciary Obligations, Lisa M. Fairfax

GW Law Faculty Publications & Other Works

This Article argues that, instead of dramatically altering the responsibilities of corporate officers and directors, Sarbanes-Oxley confirms at least some case law and other recent articulations of management's fiduciary duty. At a minimum, recent allegations regarding corporate misconduct may suggest some degree of confusion on the pat of corporate officers and directors about the manner in which they should comply with their fiduciary duty. By requiring more exacting standards of conduct from these corporate agents, Sarbanes-Oxley may not only clear up that confusion, but also may represent a natural extension of recent pronouncements by Delaware courts, the SEC and other …

Doing Well While Doing Good: Reassessing The Scope Of Directors' Fiduciary Obligations In For-Profit Corporations With Non-Shareholder Beneficiaries, Lisa M. Fairfax

GW Law Faculty Publications & Other Works

Doing Well While Doing Good: Reassessing the Scope of Directors' Fiduciary Obligations in For-Profit Corporations with Non-Shareholder Beneficiaries, 59 Wash. & Lee L. Rev. 414 (2002), explores corporate fiduciary duties in the context of for-profit companies that operate in traditionally non-profit spheres. The rise in "privatization" - a conversion from certain businesses being operated by nonprofit and government entities to operation by for-profit companies - has sparked considerable opposition, particularly when it occurs within industries that deliver some societal good such as health care or education. Opponents claim that for-profit companies cannot pay heed to their social or charitable commitments …

A Case For The Twenty-First Century Constitutional Canon: Schneiderman V. United States, David Fontana

GW Law Faculty Publications & Other Works

This Article examines a generally underappreciated 1943 Supreme Court case, Schneiderman v. United States. Schneiderman raises a variety of issues related to disparate subjects, such as the role of courts during wartime, the place of the Constitution in the American "civil religion," constitutional limitations on immigration regulation, and so on. Because this case discusses all of these issues (and had a major impact on the evolution of some of these issues), it is a case of substantial importance and interest that has belonged in the constitutional canon for some time. However, this Article argues that, because of the new issues …

Rational Custom, Edward T. Swaine

GW Law Faculty Publications & Other Works

This article agrees with recent papers that rational choice analysis may be a useful heuristic for customary international law, which is plagued by an incoherent approach to state interests. The theory's initial application, however, has been flawed and unduly truncated, and I provide additional illustrations from game theory and of customary rules to illustrate the point. Rational choice analysis not only explains why certain customary international law may legitimately be regarded as obligatory, thus redeeming an important legal institution, but also indicates important directions for reform.

Communicating Governance: Will Plain English Drafting Improve Regulation?, Steven L. Schooner

GW Law Faculty Publications & Other Works

It should come as no surprise that the Bush administration showed little interest in adopting Vice President Gore's ambitious, high profile National Performance Review (NPR) agenda. One area, however, where the Bush administration would do well to embrace the NPR's efforts is the plain language initiative. While it would be hyperbole to suggest that the NPR's efforts dramatically improved the clarity of the government's written communication (including statutes, regulations, policies, instructions, etc.), some progress was made. Yet it will take some time before a commitment to writing in plain, clear, precise English becomes a cultural (or governmental) norm. Even though …

Parenthood, Genes, And Gametes: The Family Law And Trusts And Estates Perspectives, Naomi R. Cahn

GW Law Faculty Publications & Other Works

This Article proposes a solution to resolve the legal issues that arise from the disposition of eggs, zygotes, and sperm upon divorce or death. I address two overlapping issues in family law and trusts and estates law: (1) whether the partner seeking procreation may use gametic material over the objections of the other partner and (2) how should the use of donated, willed, or marital gametic material affect the legal determination of parenthood?

In family law cases, courts generally rule in favor of the person seeking to avoid procreation, regardless of any evidence as to the intent of the parties. …

Review Of Rulemaking, Participation And The Limits Of Public Law In The Usa And Europe By Theodora Th. Ziamou And Review Of Governing By Numbers: Delegated Legislation And Everyday Policy-Making, By Edward C. Page, Francesca Bignami

GW Law Faculty Publications & Other Works

This article reviews two books: Rulemaking, Participation and the Limits of Public Law in the USA and Europe by Theodora Th. Ziamou and Governing by Numbers by Edward C. Page. In Rulemaking, Ziamou compares the law of rulemaking in the United States, Germany, Greece, and England. Ziamou covers the distinction between administrative rules and other administrative acts, the constitutional law of rulemaking, rulemaking procedure, the ability of private organizations to adopt rules that bind themselves and third parties, and judicial review. Readers are left with a better understanding of American and European rulemaking but may not be convinced that Europe …

The Transformation Of The U.S. Financial Services Industry, 1975-2000: Competition, Consolidation And Increased Risks, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

The structure of the U.S. financial services industry has fundamentally changed during the past quarter century. Rapid improvements in information technology and the creation of innovative financial instruments have produced a dramatic increase in competition and spurred deregulation, thereby eroding traditional barriers that separated banks from securities firms and life insurance companies. In response to these trends, major banks, securities broker-dealers and life insurers have aggressively expanded by merging with their direct competitors and by acquiring firms in other financial sectors. The Gramm-Leach-Bliley Act of 1999 has encouraged this consolidation trend by authorizing the creation of financial holding companies that …

Sounding The Death Knell For In Loco Parentis, W. Burlette Carter

GW Law Faculty Publications & Other Works

The article examines the history of the regulation of student athletes playing intercollegiate athletics through the lens of the in loco parentis doctrine. It argues that the doctrine has been abandoned in the larger college and university context, but continues to survive in the intercollegiate arena. Part I investigates the role of the in loco parentis doctrine in early college and university life. Part II discusses the general demise of the doctrine in the 1960s and 1970s and the resulting expansion of freedoms that came to college and university students. Part III demonstrates how the doctrine is reflected in modern …