Law Commons^™

Ashcroft V. Aclu: The Fate Of The Child Online Protection Act, Marybeth Eyrich

Computer Law Review and Technology Journal

Concerns about the proliferation and accessibility of cyber-porn motivated Congress to pass legislation intended to protect children from on-line pornography. This nascent attempt to regulate the Internet has not yet passed constitutional muster, as Congress's efforts to protect children have been thwarted by First Amendment challenges. Ashcroft v. ACLU examines, but does not resolve, the constitutionality of the Child Online Protection Act ("COPA"). The issue in Ashcroft was whether COPA's use of "community standards" to identify "material that is harmful to minors" violated the First Amendment. In a plurality opinion, the Court held that COPA's use of "community standards" does …

Clients' Views On Privacy And Security After September 11: Have They Changed? Should They? An Information Technology Lawyer's Perspective, Richard G. Lyon

Computer Law Review and Technology Journal

No abstract provided.

Looking For A Crack To Break The Internet's Back: The Listen4ever Case And Backbone Provider Liability Under The Copyright Act And The Dmca, Daniel W. Kopko

Computer Law Review and Technology Journal

In August 2002, a group of 13 record labels brought a lawsuit against the four major companies that provide the "backbone" infrastructure of the Internet. The record labels sought an injunction under section 512 of the Digital Millennium Copyright Act of 1982 ("DMCA") to compel the defendants to block access to a China-based website, Listen4Ever.com ("Listen4ever"), that offered free downloads of entire albums of copyrighted music from its central server. The labels alleged that Listen4ever located its operations in China specifically to evade U.S. copyright laws. They noted that the site was in English and offered almost exclusively music by …

Personal Jurisdiction: Lost In Cyberspace?, Susan Nauss Exon

Computer Law Review and Technology Journal

No abstract provided.

The Erosion Of Online Privacy Rights In The Recent Tide Of Terrorism, Thomas P. Ludwig

Computer Law Review and Technology Journal

Imagine a world where any idea or message communicated to another individual is subject to governmental scrutiny for possible criminal, subversive, or terroristic content. The current location of any individual, as well as the places that he or she commonly frequents, can easily be tracked through that person's phone calls, online activity, and financial records, which are all accessible to government agencies. By intercepting e-mails and tracking online browsing, shopping, and other activities, the most intimate details, habits, and preferences of the average individual are readily available to the prying eyes of cyber-criminals and law enforcement officials alike. Scenarios such …

Law, Religion, And Human Rights In Global Perspective, Mark Modak-Truran

MC Law Review

Law and Religion Symposium: Introduction

Incorporating Common Law Into The Constitution Of Canada: Egale V. Canada And The Status Of Marriage, Mark D. Walters

Osgoode Hall Law Journal

Recent decisions of the Supreme Court of Canada raise complicated questions about the relationship between the common law and the Constitution. In particular, a distinction may now be drawn between constitutional common law concepts that are "incorporated" by the Constitution and those that are "free-standing" or "text-emergent." The author explores the significance of these distinctions by examining the argument, accepted in the recent case of EGALE V. Canada, that the reference to marriage in section 91(26) of the Constitution serves to incorporate the common law definition of marriage into the Constitution, thus preventing federal or provincial legislation from legalizing same-sex …

Financial Collapse And Class Status: Who Goes Bankrupt?, Elizabeth Warren

Osgoode Hall Law Journal

Every policy prescription, economic analysis, or news report about consumer bankruptcy rests on one or another unspoken image of the estimated 1.5 million families that will file in a single year. Data from the 2001 Consumer Bankruptcy Project permit a systematic analysis of the composition of those who file for personal bankruptcy, focusing on their education, occupation, and home ownership status. These attributes serve as a proxy for class identification. Based on these indicia, more than 90 per cent of the families in bankruptcy qualify as middle class. These data are a powerful reminder that whatever else might be said …

Secession, Constitutionalism, And American Experience, Mark Brandon

Articles

No abstract provided.

Is There A Role For Lawyers In Preventing Future Enrons?, Kenneth M. Rosen, Jill E. Fisch

Articles

Following the collapse of the Enron Corporation, the ethical obligations of corporate attorneys have received increased scrutiny. The Sarbanes-Oxley Act of 2002, enacted in response to calls for corporate reform, specifically requires the Securities and Exchange Commission to address the lawyer's role by requiring covered attorneys to "report up" evidence of corporate wrongdoing to key corporate officers, and, in some circumstances, to the board of directors. Failure to "report up" subjects a lawyer to liability under federal law.

This Article argues that the reporting up requirement reflects a second-best approach to corporate governance reform. Rather than focusing on the actors …

A History Lesson: Reparations For What?, Emma Coleman Jordan

Georgetown Law Faculty Publications and Other Works

A major difficulty facing the reparations-for-slavery movement is that to date the movement has focused its litigation strategies and its rhetorical effort upon the institution of slavery. While slavery is the root of modern racism, it suffers many defects as the centerpiece of a reparations litigation strategy. The most important difficulty is temporal. Formal slavery ended in 1865. Thus, the time line of potentially reparable injury extends to well before the period of any person now living. The temporal difficulty arises from the conventional expectations of civil litigation, which require a harmony of identity between the defendants and the plaintiffs. …

Students’ Writing Backgrounds: A Survey, Susan Wawrose

School of Law Faculty Publications

We now know that many experienced lawyers think newly-minted attorneys “do not write well.”1 Law professors complain that students do not write well when they enter law school. Undergraduate professors say their students do not write well when they enter college. I suspect the complaint continues on down the ladder of K- 12 education. Are students learning to write in college, high school, and elementary school? To shed light on the question, I surveyed students in my legal writing class about their writing experience. I wanted to know what kind of writers I was teaching. Had they been taught fundamental …

Exam Writing As Legal Writing: Teaching And Critiquing Law School Examination Discourse, Adam Todd

School of Law Faculty Publications

This article adds to the growing body of scholarship on legal writing and its role in the legal academy. It addresses an area of legal discourse that is of importance to law students, the legal academy and the bar admissions process, yet has been neglected in legal scholarship. The article is a call for legal writing faculty members and other legal writing specialists to become more involved in the process of teaching about and critiquing the discourse involved in traditional end-of-semester doctrinal law school exams. This article suggests how law school legal writing programs, by deliberately teaching about exam writing, …

A New Face For Und Law School - Say It Ain't So, Jerry, Christine Hogan

North Dakota Law Review

No abstract provided.

Hipaa Requirements For Lawyers - Business Associate Contracts, Gerald E. Deloss

North Dakota Law Review

No abstract provided.

Maximizing Custody Options: Abolishing The Presumption Against Joint Physical Custody, Matthew A. Kipp

North Dakota Law Review

No abstract provided.

Labor And Employement Law - Discrimination: An Eeoc Regulation Allowing Employers To Assert That Employee May Not Pose A Danger To Himself Falls Within The Purview Of The Americans With Disabilities Act, Erin M. Conroy

North Dakota Law Review

No abstract provided.

Toward A Multiple Party Representation Model: Moderating Power Disparity, Henry Ordower

All Faculty Scholarship

Argues that the zealous representation model of contemporary legal practice with its emphasis on primacy of the client causes lawyers to assist and motivate their clients to exploit the clients' power advantages in non-litigation contexts. The article recommends that ethical rules shift to a multiple client representation model. The model would be based upon the Brandeisian "lawyer for the situation" and would empower attorneys in non-litigation settings to consider and evaluate the impact of their activities on other constituencies that the representation affects. Attorneys would become better able to encourage their clients to seek distributional fairness and balance in their …

Taiwan And The Wt0, Steve Charnovitz

GW Law Faculty Publications & Other Works

This paper is about Taiwan and the World Trade Organization. It discusses the history of Taiwan's involvement in the world trading system and the accession to the WTO. The paper then notes some unique features of Taiwan's membership and discusses the current political tension with China in the WTO. The paper ends with a discussion of the implications of Taiwan's membership in the WTO for potential Taiwanese membership in other international organizations.

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 …

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.

Assessing The Ilo's Efforts To Develop Migration Law, Steve Charnovitz

GW Law Faculty Publications & Other Works

The world community has increasingly recognized the movement of people as an issue of global policy rather than an exclusive sovereign preserve of individual governments. In considering whether a good case exists for establishing a World Migration Organization, policymakers and stakeholders should look at whether existing international organizations can be better used to enhance international cooperation on migration policy. One such organization may be the International Labour Organization (“ILO”), a UN specialized agency that has worked on migrant issues from its beginning. This article analyzes the work of the ILO in international migration as prolegomena to assessing whether its role …

The World Trade Organization And Law Enforcement, Steve Charnovitz

GW Law Faculty Publications & Other Works

Increased threats from transborder criminal activity are leading to stronger governmental and intergovernmental responses in the military, judicial, and regulatory arenas. These efforts, particularly the non-military efforts, raise a new issue in international economic law: the intersection between trade and law enforcement. This paper provides an overview of this “trade and law enforcement” linkage in four areas: (1) security, (2) health, (3) human rights, and (4) environmental protection. To explain the linkage between trade and law enforcement, I present the taxonomy of how trade measures are usable for law enforcement, and I offer a synopsis of the WTO provisions relevant …

The American Worker: Junior Partner In Success And Senior Partner In Failure, Charles B. Craver

GW Law Faculty Publications & Other Works

This article explores the degree to which American workers are treated like second-class parties by corporate leaders. When business firms do well, share holders and managers obtain significant financial gains, but rank-and-file workers do not usually share in those gains. On the other hand, when firms do poorly, thousands of employees are laid off, while managers obtain bonuses for their forthright actions designed to curtail labor costs. These developments correspond directly to the decline of labor organizations in the United States. When unions represented 35 percent of private sector workers in the late 1950s and 1960s, wages and benefits were …

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 …

The Sarbanes-Oxley Yawn: Heavy Rhetoric, Light Reform (And It Might Just Work), Lawrence A. Cunningham

GW Law Faculty Publications & Other Works

A thorough examination of the much ballyhooed Sarbanes-Oxley Act reveals dominantly a federal codification of extant rules, regulations, practices, and norms. Despite advertising it as "the most far-reaching reforms of American business practices since the time of FDR," a soberly apolitical view sees the Act as more sweep than reform. Important are provisions calling for nine studies; redundant but much publicized were the certification requirements imposed during the summer of 2002; other moves are mere patchwork responses to precise transgressions present in the popularized scandals. The Act is far from trivial, however. A silver bullet relates to the structure and …

Book Review Of Frederic L. Borch, Judge Advocates In Combat: Army Lawyers In Military Operations From Vietnam To Haiti (2001), Gregory E. Maggs

GW Law Faculty Publications & Other Works

This is a review of Frederic L. Borch, Judge Advocates in Combat: Army Lawyers in Military Operations from Vietnam to Haiti (2001). The book presents and supports a specific thesis. It shows that military attorneys over time gradually have assumed an important new duty in combat operations. Judge advocates, for example, now directly influence the planning and execution of military actions by drafting rules of engagement, aiding in the selection of targets, crafting policies to ensure compliance with the law of war, and even by advising on political matters in host nations. I have written a positive review of this …

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 …

Caught In The Crossfire: A Defense Of The Cultural Theory Of Gun-Risk Perceptions, Donald Braman, Dan M. Kahan

GW Law Faculty Publications & Other Works

In this article, Dan Kahan and Donald Braman expand upon the cultural theory of gun-risk perception and respond to the commentaries on their previous article, More Statistics, Less Persuasion: A Cultural Theory of Gun-Risk Perceptions, 151 U. Pa. L. Rev. 1291 (2003). Their critics argue that the authors are too quick to dismiss the power of empirical information to influence individuals’ positions on gun control. But in analyzing the variety of their critics’ arguments, Kahan and Braman note the strange pattern of opinions that has emerged on the relative importance of culture and data in the gun debate. What could …

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 …