Law Commons^™

A Comment On China's Participation In The World Trade Organization, Steve Charnovitz

GW Law Faculty Publications & Other Works

This comment discusses two papers presented at the US-China WTO Roundtable sponsored by the Institute of International Law of The Temple University James E. Beasley School of Law. The paper by Zhang Naigen examines treaty interpretation in dispute settlement under the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights. Professor Zhang observes that WTO panels will have to interpret the underlying provisions in non-WTO treaties, namely the intellectual property rights treaties overseen by the World Intellectual Property Organization. The paper by Yang Guohua points out the paradox that although the WTO permits governments to utilize import safeguards, in all …

The Price Of Discrimination: The Nature Of Class Action Employment Litigation And Its Effects, Michael Selmi

GW Law Faculty Publications & Other Works

This article analyzes the recent wave of large class action employment discrimination suits to determine their effects on the firms that are sued and the members of the plaintiff class. The first part of the paper includes an event study that measures the effect the lawsuits and their settlements have on stock prices of the companies that are sued, and the second part of the paper involves three case studies (Texaco, Home Depot and Denny's) to explore how the lawsuits actually change corporate practices. The study finds that the lawsuits do not generally affect stock prices, and rarely provide meaningful …

Unsigning, Edward T. Swaine

GW Law Faculty Publications & Other Works

Widespread objections to the apparently unprecedented decision by the United States to "unsign" the treaty establishing the International Criminal Court reflect concerns particular to that treaty and to U.S. involvement in international affairs. But the controversy also illuminates a genuine problem in the formation of multilateral treaties. The interim obligation for signatories, often understood as a means for maintaining a vestigial role for signature, should also be considered as an incomplete answer to ex post and ex ante commitment problems observable in the treaty context and elsewhere - incomplete, in part, because signatories can effectively withdraw from their obligations without …

Zelman's Future: Vouchers, Sectarian Providers, And The Next Round Of Constitutional Battles, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

This piece focuses on the Supreme Court's recent decision in Zelman v. Simmons-Harris, the Cleveland school voucher case, and the constitutional questions that have already begun to appear in its aftermath. After describing the constitutional crossroads at which the Zelman Court found itself, we offer a close reading of the Zelman opinions, paying special attention to the normative vision of church-state relations that each presupposes, the values that the Court failed to explore, and practical questions about the range of school settings to which Zelman might ultimately be applied. The piece then explores the legal and constitutional future of the …

Which Ties Bind? Redefining The Parent-Child Relationship In An Age Of Genetic Certainty, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

This article addresses the role of the genetic tie in the parent-child relationship through three lenses. First, we argue that the legal system recognizes children's rights not by treating children as autonomous actors, but by identifying the individuals and institutions most likely to promote children's interests and encouraging their success. Second, we examine the existing empirical and socio-biological literature that considers the importance of biological relationships, and concludes that it demonstrates not a single set of answers, but a set of tradeoffs. The well-being of young children, particularly in societies less prosperous than our own, may depend on the mother's …

Freedom Of Expression, Democratic Norms, And Internet Governance, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

Within a decade, the Internet has transformed into a global medium of mass communication and expression of all kinds. The Internet Corporation for Assigned Names and Numbers (ICANN), the body that governs the Internet's infrastructure, assured the United States that it would govern the Internet's infrastructure democratically and would implement governance structures to take into account the interests of affected Internet users around the world. In particular, ICANN promised to employ deliberative and representative democratic structures in its decision-making bodies. Even though ICANN has (arguably) implemented such procedural democratic norms, it has failed to implement substantive norms of democratic governance, …

The Breakdown Of The United States Government Purchase Card Program And Proposals For Reform, Jessica Tillipman

GW Law Faculty Publications & Other Works

The Government Purchase Card Program introduced purchase cards to streamline the acquisition of items and services under $2,500. Purchase cards have proved to be extremely efficient, with some estimates putting the savings for the Government at $75 per transaction. Unfortunately, the Government has failed to maintain effective controls over cardholders and this has led to systemic abuse, preventing the Government from realizing the full potential of the purchase card program.

There are three main problems with the current scheme. First, cardholders are ignoring internal controls, resulting in purchases that supervisors cannot verify as consistent with procurement regulations. Second, the proliferation …

Murder And The Reasonable Man: Passion And Fear In The Criminal Courtroom, Cynthia Lee

GW Law Faculty Publications & Other Works

This book examines the influence of masculinity, heterosexuality, and race norms on the reasonableness requirement in two criminal law defenses: the doctrine of provocation and the defense of self-defense. I argue that certain defendants are better able than others to bolster their claims of reasonableness by relying on dominant social norms and illustrate this point by examining three types of cases: (1) female infidelity killings, (2) gay panic killings, and (3) racialized self-defense cases (both private claims of self-defense and police use of deadly force against persons of color). Even though these three types of cases may seem completely unconnected …

The Constitutional Structure And The Jurisprudence Of Justice Scalia, Bradford R. Clark

GW Law Faculty Publications & Other Works

Commentators generally regard federalism and separation of powers as distinct features of the constitutional structure. In reality, these doctrines were designed to work together to further the same goals: to avoid tyranny and to preserve individual liberty. Professor Thomas Merrill overlooks this connection in a recent attempt to explain the Supreme Court's decision making process under Chief Justice William Rehnquist. Professor Merrill maintains that there have been two Rehnquist Courts: one from 1986 to 1994, and another from 1994 to the present. In Professor Merrill's view, the first Rehnquist Court focused on social issues - such as abortion, affirmative action, …

The Supremacy Clause As A Constraint On Federal Power, Bradford R. Clark

GW Law Faculty Publications & Other Works

Today, it is widely accepted that the Constitution authorizes courts to review and invalidate state laws that conflict with federal statutes. At the same time, prominent commentators and even some judges maintain that courts should not seriously review the constitutionality of federal statutes alleged to exceed the scope of Congress' enumerated powers. In their view, the constitutional structure protects the states (and thereby reduces the need for judicial review of federal power), but establishes no comparable safeguards to deter states from interfering with federal prerogatives. Contrary to this position, there is an express textual basis for judicial review of federal …

Professor Hudec's Contribution To World Order, Steve Charnovitz

GW Law Faculty Publications & Other Works

For over three decades, Professor Robert E. Hudec shaped the field of international trade law, and inspired students, colleagues, and policy-makers around the world. Professor Hudec was a spirited, witty, unassuming, kind, and honest man. He enjoyed having his ideas contested by others, and was willing to spend time to help colleagues and students think through their ideas. This tribute to Professor Hudec collects a series of stories and acknowledgments from his peers and colleagues.

Negotiation Styles: The Impact On Bargaining Transactions, Charles B. Craver

GW Law Faculty Publications & Other Works

This article discusses the three major negotiating styles and their impact on bargaining interactions. The first is the Cooperative/Problem-Solving style in which the participants are entirely open with each other, and work to achieve fair agreements that maximize the joint gains they achieve. The Competitive/Adversarial style involves persons who are less open and strive to maximize their own returns. The third approach involves the Competitive/Problem-Solving style in which negotiators seek generous returns for themselves, but also work to maximize the joint returns achieved by both sides. Studies show that over half of Cooperative/Problem-Solvers are considered by their peers to be …

Empirical Research Into The Chinese Judicial System, Donald C. Clarke

GW Law Faculty Publications & Other Works

The last few years have seen a proliferation of programs by Western states and international agencies designed, in broad terms, to promote reforms in the Chinese judicial system. What is not clear, however, is whether there has been systematic thinking about the precise goals to be sought in these and other projects, whether these goals are appropriate, and indeed whether their achievement can even be ascertained in some measurable way. This paper is an attempt to think about what we know, what we might want to know, and what we can know about China's judicial system, broadly defined.

A key …

Puzzling Observations In Chinese Law: When Is A Riddle Just A Mistake?, Donald C. Clarke

GW Law Faculty Publications & Other Works

Understanding the Chinese legal system is not simple because it is (probably) very different from a Western one. The understanding of the Chinese legal system that results from any study will depend crucially on the selection of a paradigm with which to define what counts as an observation and against which to measure and assess the observations, either descriptively or normatively. This is not to say that the selection of a paradigm will make the difference between understanding and not understanding. It will, however, make a difference between understanding in one way and understanding in another way. Whether one of …

Commercial Purchasing: The Chasm Between The United States Government's Evolving Policy And Practice, Steven L. Schooner

GW Law Faculty Publications & Other Works

During the 1990's, the United States government accelerated its efforts to adopt more commercial practices and buy more commercial items. In doing so, the government sought to: (1) mimic the most successful buying practices of businesses and consumers and (2) rely more heavily upon existing goods and services already produced in the marketplace (rather than demanding creation of government-unique versions). This paper introduces the government's efforts to make its purchasing regime more commercial through the introduction of new policies, vocabulary, purchasing authorities, and practices. The paper unveils a host of impediments that restrain the government from evolving into a truly …

States As Nations: Dignity In Cross-Doctrinal Perspective, Peter J. Smith

GW Law Faculty Publications & Other Works

In a series of recent decisions, the Supreme Court has asserted that the states' sovereign immunity from suit serves principally to protect the "dignity" of the states. This seemingly oxymoronic notion has perplexed and amused commentators, who have tended to dismiss it largely as rhetorical flourish without substantive content. Although the concept of state dignity is at best an unusual anchor for a doctrine that already has been roundly criticized as unfaithful to constitutional history, text, and structure, the notion of state dignity is not foreign to the law. This article argues that in relying on state dignity, the Court's …

Elusive Foundation: John Marshall, James Wilson, And The Problem Of Reconciling Popular Sovereignty And Natural Law Jurisprudence In The New Federal Republic, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

Chief Justice John Marshall's opinion in Marbury v. Madison is generally regarded as the cornerstone of American judicial review. Marshall's opinion in Marbury skillfully invoked the distinctive American concept of popular sovereignty and linked that concept to the written Constitution. Marshall argued that judicial review provided the best means for enforcing the people's will, as declared in the written Constitution, without resort to the drastic remedy of revolution. Marshall warned that, without judicial review, the legislative branch would enjoy a practical and real omnipotence and would reduce to nothing what we have deemed the greatest improvement on political institutions - …

Adjudication, Antisubordination, And The Jazz Connection, Christopher A. Bracey

GW Law Faculty Publications & Other Works

We live in the midst of a pervasive and sustained democratic crisis. Our society expresses a deep commitment to core notions of freedom, justice, and equality for all citizens. Yet, it is equally clear that our democracy tolerates a great deal of social and economic inequality. Membership in a socially disfavored group can (and often does) profoundly distort one's life chances and opportunities. Our constitutional democracy acknowledges this tension, providing for both majority rule and the protection of minority rights and interests. Although we seek to safeguard minority rights and interest through express legal prohibitions on the subordination of socially …

Corporations Without Labor: The Politics Of Progressive Corporate Law, Dalia Tsuk Mitchell

GW Law Faculty Publications & Other Works

This article examines how, in the course of the twentieth century, legal scholars and political theorists helped remove the interests of workers (as differentiated from shareholders, officers, and directors) from the core concerns of corporate law and theory. Specifically, the article demonstrates how scholars' conversations about corporate entities and corporate power were influenced by a shared cultural and intellectual objection to Marxist class analysis with its focus on the proletariat. It further explores how the purging of the working class from the scholarly imagination paved a way, first, for the rise of the new classes of managers and owners and …

The Origins And Growth Of Information Privacy Law, Daniel J. Solove

GW Law Faculty Publications & Other Works

In recent years, information privacy has emerged as one of the central issues of our times. Today, we have hundreds of laws pertaining to privacy - the common law torts, criminal law, evidentiary privileges, constitutional law, at least twenty federal statutes, and numerous statutes in each of the fifty states. To understand the law of information privacy more completely, it is necessary to look to its origins and growth. This article provides a brief overview of the history of the development of information privacy law. In particular, it explores the way that the law has emerged in response to changes …

The Virtues Of Knowing Less: Justifying Privacy Protections Against Disclosure, Daniel J. Solove

GW Law Faculty Publications & Other Works

This Article develops justifications for protections against the disclosure of private information. An extensive body of scholarship has attacked such protections as anathema to the Information Age, where the free flow of information is championed as a fundamental value. This Article responds to two general critiques of disclosure protections: (1) that they inhibit freedom of speech, and (2) that they restrict information useful for judging others.

Regarding the free speech critique, the Article argues that not all speech is of equal value; speech of private concern is less valuable than speech of public concern. The difficulty, however, is distinguishing between …

Can Pragmatism Be Radical? Richard Posner And Legal Pragmatism, Daniel J. Solove, Michael Sullivan

GW Law Faculty Publications & Other Works

Richard Posner's Law, Pragmatism, and Democracy (2003) is the most comprehensive account to date of his pragmatic vision of the law and democracy. For the most part, Posner's theory of pragmatism has been attacked externally, mainly by theorists unsympathetic to pragmatism. In contrast, in this Review, we contest Posner's account of pragmatism from within the pragmatic tradition. We contend that Posner's views are problematic not because they are pragmatic, but because they are often not pragmatic enough.

We put Posner's account of pragmatism to the pragmatic test by examining its implications. Posner views ideals as useless and philosophical theorizing as …

Does Financial Liberalization Increase The Likelihood Of A Systemic Banking Crisis? Evidence From The Past Three Decades And The Great Depression, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

Over the past three decades, leading industrial nations and many developing countries have deregulated their financial markets. Financial liberalization has produced major benefits, including more efficient intermediation of financial resources, more rapid economic development and faster growth in trade. At the same time, however, many banking crises have occurred in countries that previously adopted programs of financial deregulation. This essay provides a brief overview of banking crises in international markets since 1973, together with more detailed discussions of Japan's financial crisis that began in 1990, the U.S. banking crises of 1929-33 and 1980-92, and the challenges confronting major U.S. and …

The Judicial Disabling Of The Employment Discrimination Provisions Of The Americans With Disabilities Act, Charles B. Craver

GW Law Faculty Publications & Other Works

This article explores a series of Supreme Court decisions making it more difficult for disabled individuals to assert rights under the employment discrimination provisions of the Americans with Disabilities Act. The Court first held that ADA claimants must have their disabilities considered in their corrected or medicated condition. So long as they are able to use prostheses, hearing aids, medication, or other means to control their conditions, they are not to be considered disabled. The Court further held that persons will only be considered disabled if they have conditions that severely limit them with respect to a major life activity. …

Thinking Race, Making Nation (Reviewing Glenn C. Loury, The Anatomy Of Racial Inequality), Christopher A. Bracey

GW Law Faculty Publications & Other Works

We live in a race-conscious culture. As Americans, we are a nation of people who self-consciously chose to adopt a vision of society that embraced lofty ideals of individual freedom and democracy for all along with powerful mechanisms for devastating racial oppression. Our history is replete with instances of differential treatment on account of race - slavery being only the most egregious example - that achieved the desired effect of generating remarkable disparities in socioeconomic well-being among individuals and between different racial groups. Such disparities are not simply historical artifacts. They are facts of the contemporary American racial landscape as …

The Parent-Child Privilege In Context, Catherine J. Ross

GW Law Faculty Publications & Other Works

The article argues that children cannot fully exercise their constitutional rights under the Fifth and Sixth Amendments without being able to confide freely in their parents and advocates for the creation of a parent-child privilege.

Including Law In The Mix: The Role Of Law, Lawyers, And Legal Training In Child Advocacy, Catherine J. Ross

GW Law Faculty Publications & Other Works

This chapter describes the recent trends in family law scholarship, training, and practice. The first section of this chapter provides an overview of the scope of modern family law and the range of skills brought by lawyers. The second section considers the legal profession’s interest in using its collective talents to improve children’s lives in context of the broader intellectual trends in thinking about family issues. In the third section, I describe the current goals of legal education, explain why law schools should offer interdisciplinary training to students who plan to work in family law, and discuss some innovative multidisciplinary …

Barriers To Reliable Credibility Assessments: Domestic Violence Victim-Witnesses, Laurie S. Kohn

GW Law Faculty Publications & Other Works

This Article examines the challenges for victims of domestic violence appearing in court when the victim presents differently than the paradigmatic domestic violence victim. In particular, this Article analyzes the strategic dilemma of presenting a victim who refuses to admit (or cannot access or does not experience) fear of the batterer, and the victim who feels anger towards her assailant.

This Article addresses possible policy and tactical responses to this challenge. Suggesting legislative changes that eliminate requirements that victims prove subjective fear of a battering partner, the Article further analyzes the use of expert witnesses to assist jurors and judges …

Foreword: The Administrative Law Of The European Union, Francesca Bignami

GW Law Faculty Publications & Other Works

This special issue of Law and Contemporary Problems is devoted to the administrative law of the European Union. The foreword sets the stage by narrating the history of legal scholarship on European administration, explaining the public law methodology of the contributors, and describing the different legal styles that separate the civil from the common law traditions and that mark the contributions. The foreword then previews the individual articles, organized by the law of centralized or “direct” administration by the European Commission and the law of decentralized or “mixed” administration, in which national civil servants interact with their counterparts elsewhere and …

Three Generations Of Participation Rights Before The European Commission, Francesca Bignami

GW Law Faculty Publications & Other Works

This article offers a conceptual framework for analyzing the development of participation rights before the executive branch of the European Community - the European Commission. Process rights before the Commission can be divided into three categories, each of which is associated with a distinct phase in Community history and a particular set of institutional actors. The first set of rights, the right to be heard when the Commission inflicts sanctions or other forms of hardship in individual proceedings, emerged in the 1970s in competition law. This phase was driven by the Court f Justice, influenced by the English administrative law …