Law Commons^™

Dna Identification Databases: Legality, Legitimacy, And The Case For Population-Wide Coverage, David H. Kaye, Michael E. Smith

Faculty Scholarship

Over the past decade, law enforcement authorities have amassed huge collections of DNA samples and the identifying profiles derived from them. Large DNA databanks routinely help to identify the guilty and to exonerate the innocent, but as the databanks grow, so do fears about civil liberties. Perhaps the most controversial policy issue in the creation of these databases is the question of coverage: Whose DNA profiles should be stored in them? The possibilities extend from convicted violent sex offenders to all convicted felons, to everyone arrested, to the entire population. This Article questions the rationales for drawing the line at …

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 …

Against Principled Antitrust, Edward T. Swaine

GW Law Faculty Publications & Other Works

Competition policy is on the WTO agenda for the Doha Round, but it is unlikely that it will result in any substantive international standards; the goal, instead, seems to be to agree on core principles to guide the development of national law, including transparency, non-discrimination, and procedural fairness, perhaps extending to special and differential treatment for developing countries. While there is much to commend these principles, this paper takes a deliberately contrarian view, arguing that core principles are not at all where WTO competition policy should begin. It further disputes the appropriateness of applying an emerging meta-principle of the WTO …

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 …

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 Impact Of Economic Globalization On Compliance, Dinah L. Shelton

GW Law Faculty Publications & Other Works

The introductory chapter of this book begins by defining globalization and the novel notion of the “common concern of humanity” and describes the ethical, cultural, and economic considerations underlying protection of the biosphere. The chapter describes the evolution of the common concern of humanity in depth and describes the increased presence of international organizations. Next, the chapter introduces the Marrakesh Charter and its corresponding economic principles. The chapter concludes that there exists the need to create an international liability system for both states and individuals for environmental degradation caused by international trade.

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 …

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 …

Identity Theft, Privacy, And The Architecture Of Vulnerability, Daniel J. Solove

GW Law Faculty Publications & Other Works

This Article contrasts two models for understanding and protecting against privacy violations. Traditionally, privacy violations have been understood as invasive actions by particular wrongdoers who cause direct injury to victims. Victims experience embarrassment, mental distress, or harm to their reputations. Privacy is not infringed until these mental injuries materialize. Thus, the law responds when a person's deepest secrets are exposed, reputation is tarnished, or home is invaded. Under the traditional view, privacy is an individual right, remedied at the initiative of the individual.

In this Article, Professor Solove contends the traditional model does not adequately account for many of the …

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 …

Deconstructing The Construction Industry: The Effects Of Labor Law 240/241 On The Home Building Industry In New York State, David E. Hay

Seton Hall University Dissertations and Theses (ETDs)

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Unpatriotic Acts: An Introduction, Sadiq Reza

Faculty Scholarship

John Walker Lindh. Zacarias Moussaoui. Jose Padilla. Richard Reid. Who reading these lines does not instantly recognize the names of these men? Or at least their assigned noms de guerre: American Taliban, 20th hijacker, dirty bomber, shoe bomber. For two and a half years these names and others have flitted through our daily copies of The New York Times like shadow characters in a play, along with black-and-white photographs underneath which black-and-white text tells us of their alleged (and sometimes proven) wrongdoing and the latest developments in their tribulations (and sometimes trials) with our government. But the men themselves are …

Patent Thickets: Strategic Patenting Of Complex Technologies, James Bessen

Faculty Scholarship

Patent race models assume that an innovator wins the only patent covering a product. But when technologies are complex, this property right is defective: ownership of a product's technology is shared, not exclusive. In that case I show that if patent standards are low, firms build "thickets" of patents, especially incumbent firms in mature industries. When they assert these patents, innovators are forced to share rents under cross-licenses, making R&D incentives sub-optimal. On the other hand, when lead time advantages are significant and patent standards are high, firms pursue strategies of "mutual non-aggression." Then R&D incentives are stronger, even optimal.

Independent Review Of The Crimes (Forensic Procedures) Act 2000, Mark Findlay

Research Collection Yong Pung How School Of Law

This Report focuses on the use of forensic procedures in the criminal justice system. It arises out of the requirement under section 122 of the Crimes (Forensic Procedures) Act 2000 (the Act) that the Minister (the Attorney General) review the Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.

Illegality And Public Policy, Boon Leong, Andrew Phang

Research Collection Yong Pung How School Of Law

No abstract provided.

A Brief History Of Author-Publisher Relations And The Outlook For The 21st Century, Maureen A. O'Rourke

Faculty Scholarship

The Fiftieth Anniversary Edition of the Journal of the Copyright Society of the U.S.A. provides a particularly appropriate forum in which to discuss the current state of the copyright system. By some accounts, U.S. copyright law has been fabulously successful, encouraging the growth of industries whose copyrighted products both enrich American culture and contribute significant value to the economy.

Darwin, Design, And Disestablishment: Teaching The Evolution Controversy In Public Schools, Jay D. Wexler

Faculty Scholarship

The controversy over teaching evolution in public schools is once again hot news. Ever since the Supreme Court decided in 1987 that Louisiana could not constitutionally require teachers to give equal time to teaching creation science and evolution, critics of evolution have adopted a variety of new strategies to change the way in which public schools present the subject to their students. These strategies have included teaching evolution as a "theory" rather than as a fact, disclaiming the truth of evolutionary theory, teaching arguments against evolution, teaching the allegedly nontheistic theory of intelligent design instead of creationism, removing evolution from …

An Incentives Approach To Patent Settlements: A Commentary On Hovenkamp, Janis & Lemley, Maureen A. O'Rourke

Faculty Scholarship

Professors Hovenkamp, Janis, and Lemley have attempted to clarify one of the most vexing issues facing antitrust and intellectual property law today: What analytical framework should antitrust authorities and courts use in considering whether patent settlement agreements in infringement cases violate the antitrust laws? The issue is complex because many ostensibly anticompetitive restraints in settlement agreements are perfectly legal if the underlying patent right is valid. Unfortunately, in some cases, the relevant patents are either invalid or not infringed. Thus, the antitrust analysis hinges on resolution of an intellectual property question.

Ballot Boxes Behind Bars: Toward The Repeal Of Prisoner Disenfranchisement Laws, Debra Parkes

All Faculty Publications

This paper takes seriously the objection that allowing prisoners to vote may have an impact on the outcome of elections or on the development of law and policy, given the extraordinarily high incarceration rate currently a reality in the United States. The reality that prisoners may have an impact on the outcome of elections is an argument in favour of allowing them to vote rather than against it. A progressive critique or constitutional challenge of prisoner disenfranchisement should call attention to the instrumental, as well as symbolic and constitutive functions of voting, and must defend the importance of having the …

Copyright As Tort Law's Mirror Image: "Harms", "Benefits", And The Uses And Limits Of Analogy, Wendy J. Gordon

Faculty Scholarship

This pair of papers involves a reprinting of "Of Harms and Benefits: Torts, Restitution, and Intellectual Property," 21 J. LEGAL STUDIES 449 (1992), along with an introduction to that article for students, entitled "Copyright as Tort's Mirror Image". Both involve comparisons between statutory intellectual property law and common law doctrines.

"Copyright as Tort's Mirror" uses personal injury law to introduce students to copyright, making a link between the doctrines through the notion of "externalities". Just as tort law discourages wastefully harmful behavior by making perpetrators bear some of the costs inflicted, copyright law encourages beneficial behavior by enabling authors to …

Corporate Fraud: See, Lawyers, Susan P. Koniak

Faculty Scholarship

The accounting profession must bear a good deal of responsibility for the current wave of corporate scandals, as must those CEOs whose watchword was greed, lackadaisical directors, projections-for-hire investment analysts, banks selling methods designed to deceive, and institutional investors asleep at the switch. One set of villains, however, have managed thus far to float beneath the radar screen and thus escape the lion-sized portion of blame that should rightly be laid at their door: lawyers.

Taking Ethics Codes Seriously: Broad Ethics Provisions And Unenumerated Ethical Obligations In A Comparative Hermeneutic Framework, Samuel J. Levine

Scholarly Works

Ethics scholars have documented the increasingly legislative form of twentieth-century ethics regulations, culminating in the enactment and widespread adoption of the Model Rules of Professional Conduct. Nevertheless, pointing to the presence of broad ethics provisions, a number of leading scholars have questioned the extent to which ethics codes can accurately be conceptualized as a form of legislation. Responding to these critiques, Levine aims to take seriously both the legislative form of ethics codes and their interpretation. Toward that aim, he looks to interpretive methodologies employed in American constitutional law and Jewish law to provide both descriptive and normative models for …

Supreme Court Section 1983 Decisions: (October 2001 Term), Martin A. Schwartz

Scholarly Works

No abstract provided.

Culture Clash? The Miller & Modigliani Propositions Meet The United States Court Of Federal Claims, Rodger D. Citron

Scholarly Works

No abstract provided.

How City Hall Causes Sprawl - A Case Study (Book Review), Michael Lewyn

Scholarly Works

Some commentators have labeled Atlanta, Ga. as America's poster child for sprawl. Atlanta is highly auto-oriented, and suffers from higher levels of traffic congestion and air pollution than most other cities. This book review explains how sprawl happened in Atlanta - not through the mysterious invisible hand of the free market, but through transportation and zoning decisions made by city officials.

September 11th: Pro Bono And Trauma, Marjorie A. Silver

Scholarly Works

No abstract provided.

Beware: What You Say To Your [Government] Lawyer May Be Held Against You - The Erosion Of Government Attorney-Client Confidentiality, Patricia E. Salkin

Scholarly Works

No abstract provided.

Teaching Government Law & Policy In Law School: Reflections On Twenty-Five Years Of Experience, Patricia E. Salkin

Scholarly Works

No abstract provided.

Where Will The Baby Boomers Go? Planning And Zoning For An Aging Population, Patricia E. Salkin

Scholarly Works

The article discusses the subject of land use planning and zoning for an aging community.

2002 U.S. Supreme Court Term Includes Zoning Referendum Case, Patricia E. Salkin

Scholarly Works

No abstract provided.