Law Commons^™

Theology In The Jury Room: Religious Discussion As "Extraneous Material" In The Course Of Capital Punishment Deliberations, Gregory M. Ashley

Vanderbilt Law Review

"Why would a God concerned about justice in a matter of life and death be willing to delegate an absolute power over life and death to such fallible and morally benighted creatures?'"

In the landmark Furman v. Georgia decision, Justice Brennan likened capital punishment to a mere game of chance: "When the punishment of death is inflicted in a trivial number of the cases in which it is legally available, the conclusion is virtually inescapable that it is being inflicted arbitrarily. Indeed, it smacks of little more than a lottery system." Although Brennan's argument in Furman focused primarily on disparities …

Fit And Function In Legal Ethics: Developing A Code Of Conduct For International Arbitration, Catherine A. Rogers

Faculty Scholarship

In this Article, I develop a methodology for prescribing the normative content of a code of ethics for international arbitration, and in a forthcoming companion article, I propose integrated mechanisms for making those norms both binding and enforceable. In making these proposals, I reject the classical conception of legal ethics as a purely deontological product derived from first principles. I argue, instead, that ethics derive from the interrelational functional role of advocates in an adjudicatory system, and that ethical regulation must correlate with the structural operations of the system. The fit between ethics and function, I will demonstrate, not only …

Deception In Advertising: A Content Analysis Of The Legal Parameters Of Deception, E. Carla Mitchell

Theses and Dissertations in Business Administration

One of the primary attributes of a free market economy is the uninhibited flow of truthful information regarding the goods and services available in the marketplace (Azcuenaga 1995). This free flow of information, in the form of advertising, enhances market performance by informing consumers and enabling firms to compete equitably based on the attributes of their offerings. Studies reveal that, for the vast majority of marketing managers, the regulatory environment serves as the primary influence in advertising strategy development and decision-making (Davis 1994). However, in their theory development, behavioral researchers often ignore the legal aspects promulgated by the FTC. Furthermore, …

Not For The Faint Of Heart: Fiscal Management Of Publicly Funded Law Libraries In A Time Of Economic Crisis, Steven D. Hinckley

Faculty Scholarship

The author examines the challenges faced by administrators of publicly funded law libraries in trying to gain sufficient financial support for their institutions at a time of fiscal crisis and during a era of increasing reluctance of state governments to fund libraries and other educational programs.

The Routinization Of Prenatal Testing, Sonia M. Suter

GW Law Faculty Publications & Other Works

As testing for late-onset genetic conditions becomes increasingly available, concerns have been raised about the psychosocial costs of obtaining such genetic information. Anxiety and distress can result from testing that offers only probabilistic results as to whether and when the condition will develop, especially when treatment is limited or unavailable. Many have therefore urged caution regarding late-onset testing, suggesting that knowledge can sometimes be toxic. This article argues that the same circumspection does not exist with respect to prenatal testing, which has become de rigeur as a result of a complex mix of norms within the medical community, society, and …

Historic Preservation Grants To Houses Of Worship: A Case Study In The Survival Of Separationism, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

The movement in the law of the Religion Clauses from Separationism, which requires distinctive treatment of religious institutions, to Neutralism, which prohibits such distinctive treatment, has been proceeding for the past twenty years. In some legal contexts, however, this movement has occurred erratically or incompletely, and normative questions remain about whether this paradigm change should proceed with respect to all relevant issues. In this paper, we test the positive and normative implications of the shift by exploring in detail a particular, heretofore unexamined legal context - government grants to active houses of worship for historic preservation. Many states have schemes …

Sites Of Redemption: A Wide-Angle Look At Government Vouchers And Sectarian Service Providers, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

The constitutional issues presented by the use at religious institutions of government-financed vouchers for social services have been addressed repeatedly, but virtually all of the writing in the field focuses exclusively on educational services. Most of that writing, moreover, takes the overly simple view that voucher programs are linear relationships running from government to recipient to service provider. Proponents of such programs argue that the presence of recipients as intermediate decision-makers breaks the link between the state and religion, and therefore solves the constitutional problem of church-state connection. Opponents argue that use of intermediaries is nothing more than "money-laundering," and …

How Should We Respond To The Growing Risks Of Financial Conglomerates?, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

The structure of the U.S. financial services industry has been transformed during the past two decades by the combined forces of new technologies, deregulation and financial innovation. Large banks, securities firms and life insurers have responded to these forces by pursuing a twofold consolidation strategy - acquiring direct competitors within their traditional industry sector and making cross-industry acquisitions in other sectors. The Gramm-Leach-Bliley Act of 1999 ratified the ongoing trend toward cross-industry consolidation and facilitated the creation of large financial conglomerates. Based on empirical studies and the experience of the past two decades, it is highly doubtful whether the predicted …

Faithless Wives And Lazy Husbands: Gender Norms In Nineteenth Century Divorce Law, Naomi R. Cahn

GW Law Faculty Publications & Other Works

The article examines the nature of marriage and the expectations of husbands and wives in nineteenth century America by analyzing trial reports of famous nineteenth century divorce cases. The article argues that the textured history of divorce law in the United States shows how the law has affected gendered marital roles through its regulation of divorce. While fault is no longer the focus of divorce, conformity with gendered expectations remains a central aspect of the marital dissolution legal process. In the nineteenth century, conformity benefitted women; if they were the innocent spouse who had taken care of the children, the …

Justice Between Authors, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

Traditionally, authors' copyright rights have been limited in order to promote the progress of science and the useful arts. However, authors today are increasingly employing additional protective measures that arguably are not subject to such limitations. Even if such extra-copyright measures are not limited like copyright protections, several principles underlying the copyright regime support imposing such limits on authors' rights. In this Article, based upon John Rawls's theory of justice as fairness, I develop a theory of justice between generations of authors. This theory requires that the rights of each generation of authors be limited for the benefit of subsequent …

Intergenerational Justice Between Authors In The Digital Age, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

Authors' copyright rights have traditionally been limited, because such limitations were believed to be necessary to advance copyright law's constitutionally-mandated utilitarian purpose - "to promote the progress of science and the useful arts." But authors today - especially authors of digital works - are increasingly turning to extra-copyright measures, including encryption and "clickwrap" licenses, to customize their rights in their works of authorship. Because such privately-ordered rights are arguably outside of copyright law's framework, they are not necessarily subject to its utilitarian mandate, and need not be made subject to limitations imposed by copyright law on authors' rights. Even though …

Racial Disparities And The Political Function Of Property, Spencer A. Overton

GW Law Faculty Publications & Other Works

Race theorists have noted that racial discrimination has shaped the existing distribution of economic resources, and have used this observation to justify reparations, to defend affirmative action, and to call for other legal changes that would improve the socioeconomic status of people of color. This Article takes the theorists' observation further. Property has a political function. Racially discriminatory allocation rules not only impose economic and social harms upon people of color, but also impair the ability of these people to engage in political expression and participation through structures such as the privately financed campaign finance system.

But Some Are More Equal: Race, Exclusion, And Campaign Finance, Spencer A. Overton

GW Law Faculty Publications & Other Works

Proposed campaign finance reforms and critiques of current campaign finance jurisprudence are incomplete because campaign finance reformers overlook social and historical realities related to race. This Article uses race as an analytical factor to develop a more comprehensive understanding of campaign finance. Past state-sanctioned discrimination has contributed to current racial disparities in property. Under the current campaign finance system, these disparities in property shape the racial distribution of political influence no less than poll taxes, literacy tests, or at-large electoral districts. Further, seemingly neutral campaign finance doctrine threatens to lead to future racial disparities in the political distribution of societal …

Remedying Societal Discrimination Through The Government's Spending Power, Michael Selmi

GW Law Faculty Publications & Other Works

The Supreme Court has long held that the government cannot use affirmative action to remedy societal discrimination, and this restriction has severely limited the efficacy of governmental affirmative action programs. Indeed, it is not too much to suggest that most affirmative action programs that have been invalidated over the last decade would have been upheld if the government were permitted to remedy societal discrimination. This article develops an argument for how the court can - and in fact does - use its spending power to remedy societal discrimination. The argument is based largely on a series of cases involving government …

Access And Aggregation: Privacy, Public Records, And The Constitution, Daniel J. Solove

GW Law Faculty Publications & Other Works

In this article, Professor Solove develops a theory to reconcile the tension between transparency and privacy in the context of public records. Federal and state governments maintain public records containing personal information spanning an individual's life from birth to death. The web of state and federal regulation that governs the accessibility of these records generally creates a default rule in open access to information. Solove contends that the ready availability of public records creates a significant problem for privacy because various bits of information when aggregated paint a detailed portrait of a person's life that Solove refers to as a …

Digital Dossiers And The Dissipation Of Fourth Amendment Privacy, Daniel J. Solove

GW Law Faculty Publications & Other Works

In this article, Professor Solove examines the increasing information flow from the private sector to the government, especially in light of the response to September 11, 2001. In today's Information Age, private sector entities are gathering an unprecedented amount of personal information about individuals, and the data is increasingly being accessed by government law enforcement officials. This government information gathering takes place outside the bounds of the Fourth Amendment, since the Supreme Court held in Smith v. Maryland and United States v. Miller that the Fourth Amendment does not apply to records held by third parties. Law enforcement officials can, …

Income Tax Treaty Arbitration, William W. Park

Faculty Scholarship

Notwithstanding similar fiscal objectives, countries that conclude income tax treaties often arrive at radically different results when treaty language is applied to a practical problem. The task of resolving disagreement on treaty interpretation falls either to national courts or to joint efforts by the tax administrations to work out differences on a voluntary basis. Neither alternative is satisfactory. Judicial proceedings lack political neutrality and yield inconsistent results. And the process for "mutual agreement" among competent fiscal authorities is fraught with delays and uncertainty.

The Place Of Marriage In Democracy's Formative Project, Linda C. Mcclain

Faculty Scholarship

Shoring up the institution of marriage is a theme in the "mar riage movement" and in recent legislative debates over welfare reform and family policy. One common premise is that strength ening marriage and renewing a "marriage culture" is vital to national health and that the best way for government, at all lev els, to strengthen and support families and to foster the well being of children is to promote and support marriage (Marriage Movement; Bush, 2002) Calls to renew civil society identify marital, two-parent families as foremost among the seedbeds of civic virtue upon which our Nation depends for …

Regulation And Investors' Trust In The Securities Market, Tamar Frankel

Faculty Scholarship

The subject of investor confidence in the securities markets has received wide attention recently as details of fraud and avarice continue to emerge. Investors' trust in the securities markets is important for the reasons discussed in Professor Stout's marvelous paper.¹ This Comment focuses on the relationship between investors' trust and government regulation of the markets. By regulation I mean congressional legislation and actions by federal agencies. I exclude the courts mainly because their lawmaking is not primarily policy-based, and my aim is to sound the alarm for legislative and regulatory policy-directed actions. Many an economist and academic have argued …

The Managing Lawmaker In Cyberspace: A Power Model, Tamar Frankel

Faculty Scholarship

This Article is about power - the ability to gain obedience whether by captivating followers, persuading skeptics or awarding and withdrawing economic benefits. The purpose of this Article is to analyze how the power of the Internet Corporation for Names and Numbers ("ICANN") was created, augmented, strengthened and reined in. Many controversies surround ICANN, including the very foundation of its existence - the need for a single "root" in the Internet naming infrastructure - its organizational form and accountability, and the utterances, policies and actions of its management.

The purpose of this Article is not to argue and prescribe but …

Comments On Open Source Genomics, Michael J. Meurer

Faculty Scholarship

I am going to make a few comments in the spirit of those made by Josh. I think the topic of Dan's paper is very interesting. It covers a lot of ground, and I do not have time to talk about more than a single issue. Josh's began discussing the similarity between academic research and open source, and then analyzed GPL. I want to go back to the first issue Josh raised and argue that, unlike Josh, I see some fairly significant differences between open source software and genomics. I want to talk about the cooperative ethic in the open …

Trademark Exhaustion In The European Union: Community-Wide Or International? The Saga Continues, Irene Calboli

Research Collection Yong Pung How School Of Law

This Article analyzes the principle of "trademark exhaustion" or "first-sale rule" in the European Union (EU), with particular attention to the language and different interpretations of Article 7(1) of the First Council Directive 89 104 EEC of December 21, 1988. Traditionally, most jurisdictions define the extent of trademark exhaustion as either "national" or "international" exhaustion, depending on whether the rights granted by a mark are considered exhausted only in the domestic territory or also in foreign jurisdictions. Because of its nature as a regional integration of sovereign countries, the EU has historically favored a compromising approach toward the issue, and …

Internationalised Criminal Trial And Access To Justice, Mark Findlay

Research Collection Yong Pung How School Of Law

The influence of a human rights paradigm over the recent development of local and regional criminal justice concerns throughout Europe is indisputable. Essential to this is the commitment that crucial lay parties within the justice process (such as the accused and the victims) should have adequate access to common procedural protections of criminal justice. This paper takes this trend and measures its influence on the development of international criminal justice, the trial in particular. At the very least we argue that parallel concerns about fair trial in the international procedural context will endorse the importance of a fair trial paradigm …

Market Power In Chinese Taipei: Laws, Policies And Treatments, Kung-Chung Liu, Yun-Peng Chu

Research Collection Yong Pung How School Of Law

The experience of Chinese Taipei shows that opening up a previously protected market to new entrants can be a more effective and reliable way to enhance competition than regulating the behavior of dominant or monopolistic firms. Moreover, when opening up the market, the liberalizing measures adopted by government should be market-structure-neutral. That is, it should not try to dictate the direction and results of market competition. A more pressure-resistant mechanism should be designed to deal with market power, taking the form of a regime that is cross-sector, independent and collective in its decision-making, such as has been the case with …

The Executives Guide To Business & The Law, Kee Yang Low, Benny Tabalujan

Research Collection Yong Pung How School Of Law

No abstract provided.

Women's Experiences Of The Workers' Compensation System In Queensland, Australia, Jo Calvey

Theses: Doctorates and Masters

This was a phenomenological study undertaken to understand women's experience of the workers' compensation system. Eleven women were interviewed. They ranged in age from twenty-five to sixty-five years and represented diverse socio-economic and educational backgrounds. All women were from a non-indigenous background. The initial question to women was "Can you tell me what it is like to be involved in the workers' compensation system?" The narratives were analysed and interpreted using Hycner's (1985) phenomenological guidelines. Five core themes were found: negative versus positive/neutral experiences, the workplaces response and role in the process, women's experiences of payouts and tribunals, reasons why …

Excuse And Justification In The Law Of Fair Use: Commodification And Market Perspectives, Wendy J. Gordon

Faculty Scholarship

Over twenty years ago, the Journal of the Copyright Society of the U.S.A. reprinted my article, "Fair Use as Market Failure" (82 Columbia Law Review 1600 (1982), available at: https://ssrn.com/abstract=3577724. That 1982 piece suggested that an underlying pattern governs the protean forms of "fair use", and I employed the notion of market failure to reveal and explain how the pattern functioned. Since then, some misunderstandings of my argument have arisen.

I am pleased to publish in this, the Fiftieth Anniversary issue of the Journal of the Copyright Society, a clarification – and partial amendment – of my position. As …

Foreword: Phase Ii Of The Genetics Revolution: Sophisticated Issues For Home And Abroad, Frances H. Miller

Faculty Scholarship

The distinguished health law and policy scholars we invite to contribute to the American Journal of Law & Medicine's annual symposium issue are given carte blanche to write about any aspect of the designated topic that appeals to them. The authors in this year's genetics symposium, The Genetic Revolution: Conflicts, Challenges and Conundra, are already well known for their work in the field-in fact three of them have just co-authored the only casebook specifically dedicated to the law, policy and ethics of geneticsl-and we deliberately asked them for relatively short pieces on the theory that taken together their articles would …

Authors, Publishers And Public Goods: Trading Gold For Dross, Wendy J. Gordon

Faculty Scholarship

The article seeks to clarify what is at stake - and what is not - in the litigation challenging the constitutional validity of the Sonny Bono Copyright Term Extension Act (CTEA). First, the article distinguishes between the CTEA's retrospective term extension of copyright term and the retrospective extensions enacted by prior Congresses. The article suggests that the CTEA provisions are constitutionally questionable in ways that earlier retrospective extensions may not have been. To hold the CTEA unconstitutional would not make all other term extensions vulnerable.

Second, the article shows how non-creative physical activities such as digitization and film preservation have …

Patent Settlement Agreements: Preliminary Views, Joseph F. Brodley, Maureen A. O'Rourke

Faculty Scholarship

Settlements between S competitors in patent cases raise important and sensitive antitrust issues. Patent settlement agreements may create or maintain a monopoly in technology or innovation markets and may also effectuate a monopoly or cartel in related goods markets. Indeed, absent the patent rights, certain terms of patent settlement agreements may be per se antitrust violations. Further, anticompetitive patent settlements-unlike most antitrust conspiracies-are enforceable in court, providing the parties with an effective means of preventing the cheating that is the bane of cartels. Thus, the antitrust risk that a settlement agreement may operate as a disguised cartel has long been …