Law Commons^™

Civic Renewal And The Regulation Of Non-Profits, Miriam Galston

GW Law Faculty Publications & Other Works

Civic Renewal and the Regulation of Non-profits analyzes four understandings of civic renewal, elaborated in the wake of Robert Putnam's book Bowling Alone, in light of the federal regulatory scheme imposed upon voluntary associations that qualify as "exempt organizations" under the Internal Revenue Code. These perspectives emphasize the primacy of one or more of the following as indispensable elements of civic health: (1) cooperation and effective collective action, (2) self-governance (3) equality and representative institutions, and (4) the moral character of the community or the public spiritedness of citizens. The study analyzes how the different assumptions and purposes of these …

Assessing The Legality Of Invading Iraq, Sean D. Murphy

GW Law Faculty Publications & Other Works

The recent invasion of Iraq challenges a cornerstone of contemporary international law: the prohibition on the use of force by one state against another state. The conventional wisdom is that the United States embarked on the invasion with little regard for international law or for the attitudes reflected by other nations, including the other members of the UN Security Council. This article disputes that conventional wisdom.

First, the Bush administration could have ignored international law and the Security Council, but in fact deployed a fairly sophisticated legal theory as to why U.S. actions were permissible under international law, a theory …

An Industrial Organization Approach To Copyright Law, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

Although copyright’s chief goal is often said to be the provision of incentives for producing new works, the literature on copyright rarely addresses how proposed changes in copyright law would have meaningful effects on the variety of copyrighted works available to consumers. With a focus on the economics of product differentiation and rent dissipation analysis, this Article elaborates on the insight that marginal copyrighted works are not likely to produce large contributions to social welfare and argues that the greater the success of copyright law in generating large numbers of works, the more copyright law should care about access. Part …

Thomas Jefferson Counts Himself Into The Presidency, David Fontana, Bruce Ackerman

GW Law Faculty Publications & Other Works

The Constitution instructs the President of the Senate to open the ballots submitted by members of the Electoral College, but it provides little guidance when a ballot turns out to be defective. This article provides the first in-depth consideration of two early precedents. Both Vice-President John Adams and Vice-President Thomas Jefferson confronted problems when counting the electoral votes in 1797 and 1801, respectively. Both men were placed in the awkward position of ruling on matters involving an election in which they were leading presidential candidates, but Jefferson's problem was more serious. In 1801, Georgia's electors cast their votes for Jefferson …

'But I Thought He Had A Gun' - Race And Police Use Of Deadly Force, Cynthia Lee

GW Law Faculty Publications & Other Works

It is undisputed that Blacks are disproportionately represented among the victims of police shootings. In a comprehensive review of the literature on police use of deadly force, James Fyfe reports that every study that has examined this issue [has] found that blacks are represented disproportionately among those at the wrong end of police guns. Although Blacks represent approximately 13 percent of the population in the United States, in parts of the country they constitute 60 to 85 percent of the victims of police shootings. On average, Blacks are more than six times as likely as Whites to be shot by …

The Constitutionality Of International Delegations, Edward T. Swaine

GW Law Faculty Publications & Other Works

Does the continuing assignment of legislative power to international institutions like the WTO, NAFTA, and the U.N. infringe the U.S. Constitution? The political controversy over the continued reliance on such organizations, and the potential effect on welfarist and democratic values, is increasingly perceived to have a legal dimension. Recent scholarship has taken two radically different views. One recent strain takes the position that such delegations are constitutionally problematic, chiefly in terms of the nondelegation doctrine and federalism, and proposes that the gap between these principles and constitutional practice be reduced. But others argue that these doctrines lack legal or normative …

Competitive Sourcing Policy: More Sail Than Rudder, Steven L. Schooner

GW Law Faculty Publications & Other Works

This essay predicts that the Bush administration's competitive sourcing initiative will fail. Granted, the number of government employees will continue to shrink, while the number of contractor personnel serving the Government will methodically increase. But the Government's unwillingness to appreciate the policy's costs leads to the corresponding failure to identify, obtain, and invest appropriate resources needed to properly effectuate the policy. The Government simply lacks sufficient qualified acquisition, contract management, and quality control personnel to handle the outsourcing burden. Because the Government is ill-positioned to successfully out-source in a manner that generates higher quality services, lower prices, greater efficiency, or, …

Sources Of Federalism: An Empirical Analysis Of The Court's Quest For Original Meaning, Peter J. Smith

GW Law Faculty Publications & Other Works

Although a debate continues to rage in the academy and on the Court about the propriety of originalism as a methodology of constitutional interpretation, in federalism cases both the majority and the dissent on the current Court appear to have embraced the approach. Yet their agreement ends there; the Court has consistently divided 5-4 in federalism cases. What explains the disagreement among Justices who appear to agree that the original understanding of the Constitution is also its current meaning? This article presents the results of a study of citation patterns in federalism cases since 1970. The study demonstrates that the …

Brown And The Contemporary Brazilian Struggle Against Racial Inequality: Some Preliminary Comparative Thoughts, Robert J. Cottrol

GW Law Faculty Publications & Other Works

Brown v. Board of Education, the Supreme Court's celebrated 1954 decision that ended segregation in the United States, did not end a caste based inequality among the races. One of the nations currently struggling with such a legacy of discrimination is Brazil. Brazil's path to overcome structural inequality has some interesting parallels and differences with the American experience.
Writings by Brazilian legal scholars such as Joaquim B. Barbosa Gomes and Hedio Silva Jr. had bolstered the thought that the American civil rights experience has lessons for Brazil. This experience, which was greatly shaped by Brown, contributed to the growth …

Justice Advanced: Comments On William Nelson’S Brown V. Board Of Education And The Jurisprudence Of Legal Realism, Robert J. Cottrol

GW Law Faculty Publications & Other Works

The Supreme Court’s landmark school desegregation decision in Brown v. Board of Education brings us face-to-face with how the world of race, law, caste, and the Supreme Court has changed since that time. Brown has contributed to a view that the courts are perhaps best equipped to handle the difficult issues. Whether that view will prove to be good law or good policy in the long run remains to be seen. Nonetheless, it does reflect the jurisprudential journey that took the Court from its previously indifferent position on minority rights towards that a protector of such rights.

The evolution in …

The Challenge Of Cooperative Regulatory Relations After Enlargement, Francesca Bignami

GW Law Faculty Publications & Other Works

This paper conceptualises European governance as a continuous series of collective action games among national regulators. European administration is theorized as a set of mutually beneficial relations among independent regulators, rather than as a hierarchy of supranational institutions, courts, and national administrators. The collective action approach highlights the importance of certain factors in fostering regulatory cooperation and enabling the common market to become an administrative reality: repeated interactions, monitoring and sanctioning by the Commission and the courts, reciprocity norms, and trust. It also suggests that one of the most significant challenges of enlargement will be to establish cooperative regulatory exchanges …

How Lawyers Compete, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

Lester Brickman's article establishes that the market for contingent fee lawyers is unusual, perhaps even bizarre. By removing legal impediments to the solicitation of clients, by unleashing the capital markets to finance legal claims, and by allowing intermediaries to match client and counsel, we could produce competition. Brickman has convinced me that there is little competition in contingency fee markets, and that such markets could be much more competitive. But I am not sure there is as little competition as he thinks, or that the changes in legal regimes he proposes would be sufficient to make the markets more competitive.

Information Markets, Administrative Decisionmaking, And Predictive Cost-Benefit Analysis, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

FutureMAP, a project of the Defense Advanced Research Projects Agency, was to involve experiments to determine whether information markets could improve Defense Department decisionmaking. Information markets are securities markets used to derive information from the prices of securities whose liquidation values are contingent on future events. The government intended to use such a market to assess the probabilities of potential political assassinations, and the indelicacy of this potential application contributed to a controversy leading to the cancellation of the program. In this Article, Professor Abramowicz assesses whether information markets in theory could be useful to administrative agencies, and it concludes …

The Enforcement Of United States Court Judgments In China: A Research Note, Donald C. Clarke

GW Law Faculty Publications & Other Works

Whether the judgments of United States courts can and will be enforced in China is a question that will be increasingly asked as economic ties grow between the two countries. At present, at least, the answer is straightforward: U.S. judgments will not be enforced. Chinese law requires the existence of a treaty or de facto reciprocity in order to enforce a foreign judgment; neither exists between the United States and China. Research reveals specific cases in which enforcement was refused and no cases in which enforcement was granted. Thus, the best alternative for litigants seeking the assistance of Chinese courts …

The Centrality Of Military Procurement: Explaining The Exceptionalist Character Of United States Federal Public Procurement Law, Joshua I. Schwartz

GW Law Faculty Publications & Other Works

This study builds upon prior work that delineates opposing tendencies of exceptionalism and congruence that measure the degree to which a body of public contracts law diverges or adheres to the norms of private contract law. This study has two objectives. First, itseeks to define more precisely, and track the incidence and locus of a phenomenon described as exceptionalism in public procurement law. Exceptionalism enhances the powers or reduces the liabilities of the government with respect to its private contracting partners. The first branch of this study also seeks to distinguish such true exceptionalism from a phenomenon of reverse exceptionalism …

The Digital Person: Technology And Privacy In The Information Age, Daniel J. Solove

GW Law Faculty Publications & Other Works

This is the complete text of Daniel J. Solove's book, THE DIGITAL PERSON: TECHNOLOGY AND PRIVACY IN THE INFORMATION AGE (Full Text) (NYU Press 2004) explores the social, political, and legal implications of the collection and use of personal information in computer databases. In the Information Age, our lives are documented in digital dossiers maintained by hundreds (perhaps thousands) of businesses and government agencies. These dossiers are composed of bits of our personal information, which when assembled together begin to paint a portrait of our personalities. The dossiers are increasingly used to make decisions about our lives - whether we …

Mediation On Trial: Ten Verdicts On Court-Related Adr, Nadja Alexander

Research Collection Yong Pung How School Of Law

This article critically evaluates the development of court-related mediation by reference to the evolution of ADR practice and theory. The author explores the divergent approaches taken in different jurisdictions to the relationship between ADR and court-based processes while referring to some similar phases of development and the varied empirical examinations of process. The integration of ADR into the 'mainstream' dispute resolution culture is also explored from the perspective of the diversity versus consistency of process debates while reflecting upon the variations in ADR usage between inquisitorial and more adversarial legal systems.

Oil Pollution Liability And Control Under International Maritime Law, Michael A. De Gennaro

Vanderbilt Journal of Transnational Law

Oil spills on the world's oceans and waterways are a significant environmental threats. This Note explores some of the myriad reasons why the law--in both the United States and the international community--has failed adequately to address many of the reasons spills occur in the first instance.

Beginning with a brief history of various pollution control schemes enacted over the past few years, this Note focuses on why the current international legal regimes remain ineffective in combating oil pollution. In essence, this Note argues that the current laws fail because of textual deficiencies, a failure to address the external economic realities …

The Thin State In Thick Globalism: Sovereignty In The Information Age, Adeno Addis

Vanderbilt Journal of Transnational Law

Looking at the astonishing technological developments in mass communication over the past several decades, Professor Addis explores whether and how the resulting communication revolution has undermined the notion of territorial sovereignty. Specifically, he argues that (1) although the territorial state has faced serious challenges from the communication revolution, the question is not whether state sovereignty will survive, but how thick or thin that sovereignty will (or should) be; (2) even if it were true that the territorial state is giving way to other institutional arrangements, those arrangements may not be a decentralized system of governance in that the communication revolution …

Enforcing International Labor Standards: The Potential Of The Alien Tort Claims Act, Marisa A. Pagnattaro

Vanderbilt Journal of Transnational Law

Professor Pagnattaro argues that courts should allow claims under the Alien Tort Claims Act (ATCA) to enforce international labor rights for alien workers. She begins by reviewing the history of the ATCA and the developing jurisprudence in the international labor context, including recent and pending cases involving employee ATCA claims against U.S. multinational corporations. After outlining what is necessary to assert an ATCA claim, including what is required to satisfy jurisdictional requirements, to state a claim under the law of nations, and to hold employers liable for violations of the law of nations, she details international foundations which can be …

Trip-Ping Over Business Method Patents, Vincent Chiappetta

Vanderbilt Journal of Transnational Law

Professor Chiappetta argues that the current effort to expand substantive international patent law harmonization to include business method patenting is ill-conceived and unsupportable. Such patents cannot be justified on the economic incentive grounds supporting the Western regimes. They are not part of the existing TRIPS agreement, and under present circumstances they should not be added. Any future agreement, bi-lateral or multi-lateral (including an extension of TRIPS), must be based on a better calibrated form of protection (less than patent) and should occur only after the persistent normative differences and the distributional consequences of international substantive harmonization have been addressed.

Equivalence At Law (And Society): Social Status In Korea, Race In America, Ilhyung Lee

Vanderbilt Journal of Transnational Law

Professor Lee's Article uses a comparison between the evolving role of social status in Korean society and that of race in the United States to explore Korean society and its legal system. Tracing the historical origins of status consciousness from the Confucianism of the Chosun dynasty to its vestiges in contemporary Korean society, Professor Lee notes several important parallels between social status in Korea and race in the United States. Emphasizing that there remain significant differences between the ways each functions in relation to law, Professor Lee argues that considering the two in equivalence is nonetheless analytically useful in both …

Legal And Policy Constraints On The Conduct Of Aerial Precision Warfare, Nathan A. Canestaro

Vanderbilt Journal of Transnational Law

Focusing his historical analysis on World War II, Mr. Canestaro describes how the substantial legal and policy controls under which the U.S. military conducts its air campaigns meet or exceed the requirements of international treaties and the customary practice of states. Bombing technology has only recently developed to the point of allowing compliance with international legal standards, and the United States has implemented stringent measures in recent conflicts to minimize unintended civilian casualties in warfare. Mr. Canestaro demonstrates that because these self-imposed restrictions go beyond the point of mere compliance, they often constitute a disadvantage to the conduct of U.S. …

Order In The Court: Judicial Stability And Democratic Success In Haiti, Ben J. Scott

Vanderbilt Journal of Transnational Law

Haiti faces many challenges in its attempt to build a stable, liberal democracy. Haitians have endured a legacy of chaotic and heavy-handed rule in recent decades, and the success of democracy in Haiti is both hoped for and doubted by Haitians and the international community. One reason for the doubts has been the failure of the Haitian government successfully to implement free and fair elections. Citizens and candidates are often hesitant even to participate in elections. Though both were tragic, neither the failed legislative and presidential elections of 2000, nor the subsequent coup d'etat in 2004 that resulted in the …

Imperfect Justice: Looted Assets, Slave Labor, And The Unfinished Business Of World War Ii, Stuart E. Eizenstat

Vanderbilt Journal of Transnational Law

I want to tell you an improbable story about how fifty years after the end of World War II, long-forgotten victims of not only the greatest genocide in history, but of what we learned was also the greatest theft in history, finally achieved some belated, as I call it, imperfect justice. This includes: those who placed their most precious assets in the safest banking system in Europe--in Switzerland-to keep them out of Hitler's clutches (for fifty years after the war, they were unable to recover them); those who were forced into brutal slavery and forced labor at the hands of …

Reconstruction And Constitution Building In Iraq, A. Kevin Reinhart, Gilbert S. Merritt

Vanderbilt Journal of Transnational Law

I would like to thank Vanderbilt Law School and all of the many sponsors for the invitation, and especially the Foreign Service Legal Society whose officers worked so hard to put this together. I appreciate very much the opportunity to talk to you all about Iraq. I need to begin with sort of a prelude: the things that were part of my training are in a way irrelevant to what I was doing this summer. I was not there in a professional capacity, as an Islamicist; I was there instead as a volunteer for the International Rescue Committee (IRC). I …

Labor Standards On Cypriot Ships: Myth And Reality, Iliana Christodoulou-Varotsi, Dmitri A. Pentsov

Vanderbilt Journal of Transnational Law

This Article offers a comprehensive comparative analysis of labor and social security standards on Cypriot and Greek ships. Potential cost savings for shipowners who register their ships in one country rather than the other may result from the absence of a given standard in the country of registration, or a lower or more flexible standard in that country than in the other. The authors conclude that the registration of ships in Cyprus does not provide overall advantages (in terms of "inferior" labor standards) over registration in Greece. Broadly speaking, shipowners may gain certain advantages by registering their ships in Cyprus …

Return To Europe? The Czech Republic And The Eu's Influence On Its Treatment Of Roma, Matthew D. Marden

Vanderbilt Journal of Transnational Law

The Czech Republic has faced much criticism in the past fifteen years for the treatment of its Romani minority community. The European Union has successfully applied informal, non-legal means of pressuring the Czech Republic into making some changes necessary to improve living conditions for Roma. With the Czech Republic's recent accession to the European Union, legal human rights institutions will likely play a larger role in ensuring that the Czech Republic continues to improve conditions for Czech Roma. The Author uses a case brought by a group of Roma at the European Court of Human Rights to demonstrate the potential …

Old Man And The Sky: The Brazilian Antitrust Implications For Rupert Murdoch's Expansion Of The Sky Global Satellite Network, Geoffrey Drake

Vanderbilt Journal of Transnational Law

To expand its global satellite network to the United States, Rupert Murdoch's News Corporation purchased DirecTV in 2003. Brazil's antitrust regulatory body, CADE, has expressed concern about a potential monopoly in the Brazilian satellite market controlled by Murdoch because News' Sky Latin America competes directly with DirecTV. If News opts to combine the two Brazilian satellite services, it will consolidate control of ninety-five percent of Brazil's satellite market, leaving satellite and cable competitors at a disadvantage. The Author argues that CADE should conditionally approve the acquisition because of the combination's ability to benefit Brazilian consumers, the government, and News Corporation …

Modernizing Muslim Family Law: The Case Of Egypt, Lama Abu-Odeh

Vanderbilt Journal of Transnational Law

he Author discusses the dynamics of family law reforms in modern Egypt as an instance of similar dynamics of reforms in other Muslim countries. The forces that push for reforms as well as those that try to limit them are also introduced.

The Author begins by describing the historical legal background shared by the vast majority of Muslim countries, including Egypt. An account of the general evolution of Islamic law-from a dominant system existing within an Islamic state to a subordinate system existing within an overall secularized legal system characterized by legal borrowing from European codes-is given. Islamic law has …