Law Commons^™

The Forgotten Constitutional Right To Present A Defense And Its Impact On The Acceptance Of Responbilility-Entrapment Debate, Katrice Bridges Copeland

Faculty Scholarship

This Note argues that Section 3E1.1 of the Federal Sentencing Guidelines must be interpreted to allow defendants who claim entrapment at trial to remain eligible for the acceptance-of-responsibility adjustment. To interpret Section 3E1.1 in any other way would run afoul of defendants' constitutional right to present a defense. Part I argues that the entrapment defense does not put factual guilt at issue; instead the entrapment defense challenges whether the statute should apply to the defendant's conduct. Part II contends that the legislative intent in creating the sentencing guidelines in general and the acceptance-of-responsibility adjustment in particular are furthered by requiring …

Turning The Endangered Species Act Inside Out, Jud Mathews

Faculty Scholarship

Within a week, both the Fifth and D.C. Circuits upheld the takings prohibitions of the Endangered Species Act (ESA) of 1973, as applied to species found only in single states, against Commerce Clause challenges. Both cases reach the same result, but the legal analysis used to get there could hardly be more different. In GDF Realty, the Fifth Circuit found the requisite "substantial impact" on commerce by treating the species themselves as commodities and aggregating the economic impact of all endangered species "takings". The D.C. Circuit, by contrast, held in Rancho Viejo that the true object of ESA regulation …

The Occ's Preemption Rules Exceed The Agency's Authority And Present A Serious Threat To The Dual Banking System And Consumer Protection, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

In January 2004, the Office of the Comptroller of the Currency (OCC) issued new regulations that are intended to preempt a broad range of state laws from applying to national banks and their operating subsidiaries. The OCC's rules declare that state laws are preempted if they obstruct, impair, or condition a national bank's ability to fully exercise its federally-authorized powers, either directly or through operating subsidiaries. According to the OCC, state laws apply to national banks only to the extent that state laws provide the legal infrastructure that makes it practicable for national banks to do business. The OCC's new …

Families And The Moral Economy Of Incarceration, Donald Braman

GW Law Faculty Publications & Other Works

This chapter examines the moral economy of incarceration from the perspective of one family. Derrick and Londa's story, neither one of flagrant injustice nor triumph against the odds, shows a family facing addiction, the criminal justice system's response to it, and the mixture of hardship and relief that incarceration brings to many families of drug offenders. Stories like theirs are almost entirely absent from current debates over incarceration rates and accountability. Indeed, the historical lack of the familial and community perspective of those most affected by incarceration can help to explain the willingness of states to accept mass-incarceration as a …

Beyond Retribution And Impunity: Responding To War Crimes Of Sexual Violence, Naomi R. Cahn

GW Law Faculty Publications & Other Works

Beyond Retribution and Impunity: Responding to War Crimes of Sexual Violence articulates principles for an approach to gender-based violence during conflict and post-conflict that operates within three different meanings of justice: criminal/civil justice, restorative justice, and what I define as social services justice. The article argues that responses to sexual violence must integrate legal and nonlegal, national, international, and local approaches, and must respond to both short and longer-term needs. It focuses on victims of sexual violence in the Democratic Republic of the Congo during what has been called the First World War in Africa, which occurred from 1996-2003.

Joseph …

Mixed Administration In The European Data Protection Directive: The Regulation Of International Data Transfers, Francesca Bignami

GW Law Faculty Publications & Other Works

This article analyzes mixed administration through a detailed case study of the operation of the European Data Protection Directive in Italy. For purposes of this contribution, a mixed procedure is an administrative process, established by Treaty or European legislation, in which national and European administration share responsibility for a single determination of rights and duties under European law. The article proceeds in four parts. First, I analyze the mixed procedure for transfers of personal information to third countries as it appears on the face of the Data Protection Directive. Second, I describe the experience with the procedure in the brief …

Foundations Of International Environmental Law, Dinah L. Shelton

GW Law Faculty Publications & Other Works

The introductory chapter of this book reviews the religious, ethical, and philosophical underpinnings of environmental law. Judeo-Christian religions, Islam, and Buddhism all contain guidance about how to interact with the environment. Although early treaties reflect a belief that humans had the right to use nature to their benefit without any restrictions, later policies aim “to reconcile competing social and economic policies in order to obtain equitable sharing of resources.” The chapter discusses features of the economic system that present challenges to preserving the environment, including tragedy of the commons and competitive disadvantage. Finally, the article describes international law sources of …

Towards A Typology Of Corporate Responsibility In Different Governance Contexts, Naomi R. Cahn, Anthony Gambino

GW Law Faculty Publications & Other Works

This paper develops a typology of different country governance contexts, in which we propose four broad categories of countries in Sub-Saharan Africa. Our analysis measures the most appropriate methods for helping to create a climate that is receptive to fostering corporate accountability. Our criteria are based on several different factors, none of which is determinative: the natural resources of the country; the country's dependence on one commodity; the corruption level; the stability and accountability of the government; the state of civil society; and the existence of ongoing conflict. Examining these factors together results in measuring not just the country's receptivity …

Using Framework Statutes To Facilitate U.S. Treatymaking, Steve Charnovitz

GW Law Faculty Publications & Other Works

This paper examines the two tracks used by the United States to negotiate and approve international treaties - (1) the traditional treaty process requiring Senate consent by a two-thirds vote and (2) the newer fast track process used for trade agreements, requiring Congressional passage of a law to approve and implement the agreement. Several historical and current examples are used such as the Treaty of Versailles and the Kyoto Protocol on climate change. The paper explains why the latter process is superior in many ways, and asks whether it should be applied more broadly beyond the topic of trade. Three …

Toward A Constitutional Regulation Of Minors' Access To Harmful Internet Speech, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

In this article, I scrutinize Congress's recent efforts to regulate access to sexually-themed Internet speech. The first such effort, embodied in the Communications Decency Act, failed to take into account the Supreme Court's carefully-honed obscenity and obscenity-for-minors jurisprudence. The second, embodied in the Child Online Protection Act, attended carefully to Supreme Court precedent, but failed to account for the geographic variability in definitions of obscene speech. Finally, the recently-enacted Children's Internet Protection Act apparently remedies the constitutional deficiencies identified in these two prior legislative efforts, but runs the risk of being implemented in a manner that fails to protect either …

The Donor Class: Campaign Finance, Democracy, And Participation, Spencer A. Overton

GW Law Faculty Publications & Other Works

This Article uses the U.S. Supreme Court's recent opinion in McConnell v. FEC to argue that the law should play a central role in reducing the impact of disparities in wealth on political participation. In upholding large parts of the Bipartisan Campaign Reform Act, the Court in McConnell acknowledged the adverse impact of concentrated wealth on widespread democratic participation and self-government. Even in the aftermath of the reforms upheld in McConnell, however, a small, wealthy and homogenous donor class continues to make relatively large contributions that fund the bulk of American politics. Less than one percent of the U.S. population …

Environmental Regulation, Energy, And Market Entry, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

As my contribution to a symposium, I was asked to identify and to discuss conflicts between environmental regulation and pursuit of the goals of national energy policy. I identify three contexts in which I see clear conflicts between environmental regulation and energy policy - gasoline production, importation of liquefied natural gas, and transmission of electricity. In each case, I conclude that the conflict is attributable to state and local regulations. In the case of the gasoline market, I conclude that the market is beginning to perform poorly because of a combination of state land use regulations that make it impossible …

The Tyranny Of Time: Vulnerable Children, Bad Mothers, And Statutory Deadlines In Parental Termination Proceedings, Catherine J. Ross

GW Law Faculty Publications & Other Works

This paper explores issues raised by the Adoption and Safe Families Act of 1997 (ASFA) and contends that the Act may have unwittingly harmed some children and mothers by creating a categorical imperative that a child's health and safety must be a paramount consideration in child welfare decisions. After discussing the reforms made by the Act, this paper analyzes hard cases, in particular cases involving substance abusing mothers and battered mothers, and concludes that in some instances children's interests in these cases might be better served by a flexible standard where the child asserts a claim to a continued relationship …

Political Questions And Political Remedies, Jonathan R. Siegel

GW Law Faculty Publications & Other Works

Defenders of the political question doctrine sometimes observe that the lack of a judicial remedy for a constitutional violation does not deprive injured parties of all remedy, because injured parties can pursue a political or an electoral remedy - they can seek relief at the ballot box or in the political process. This essay criticizes that argument. Political and electoral remedies for constitutional violations are ineffective for important practical and theoretical reasons that grow out of the different structures of the judicial, political, and electoral processes. The judicial process focuses each case on a particular issue; candidates in elections always …

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

GW Law Faculty Publications & Other Works

THE DIGITAL PERSON: TECHNOLOGY AND PRIVACY IN THE INFORMATION AGE (ISBN: 0814798462) (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 get a loan, a mortgage, a license, or a job; …

International Trade And Corruption: The Influence Of Trading Partners, Jan Knorich

Seton Hall University Dissertations and Theses (ETDs)

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An Offer Of Firm Resettlement, Robert D. Sloane

Faculty Scholarship

The Attorney General lacks discretion to grant asylum to any refugee "if, prior to arrival in the United States, he or she entered into another nation with, or while in that nation received, an offer of permanent resident status, citizenship, or some other type of permanent resettlement." This rule, the doctrine of firm resettlement, is unique among the mandatory bars to asylum in the United States. It does not reflect a societal judgment about the moral fitness of an asylum applicant's character-as, for example, does the bar that prohibits granting asylum to persons with a history of violent criminal behavior. …

Making Workshops Work, Gary S. Lawson

Faculty Scholarship

The internal faculty workshop is a staple of the modern law school environment. It serves both social and intellectual functions within the faculty community. Socially, workshops are among the few occasions when large numbers of faculty assemble in the same room to do anything other than argue about appointments or the academic calendar. They are also often the primary-or even the only-way in which faculty learn what their colleagues in different fields are doing.' Intellectually, workshops are intended to improve the work product of the presenters and to sharpen or expand the thinking of the audience members.

Making A Federal Case Of It: Sabri V. United States And The Constitution Of Leviathan, Gary S. Lawson

Faculty Scholarship

The popular expression “Don't make a federal case out of it!” only makes sense if federal involvement is something unusual or special that is reserved for matters of urgent national interest. It assumes that a “federal case” is, or at least ought to be, something relatively rare and noteworthy.

For the founding generation, federal involvement in people's affairs, especially through the criminal law, was in fact a relatively rare and noteworthy event. In The Federalist, James Madison told the citizens of New York that the powers of the proposed new national government “will be exercised principally on external objects, as …

Gaining Momentum: A Review Of Recent Developments Surrounding The Expansion Of The Copyright Misuse Doctrine And Analysis Of The Doctrine In Its Current Form, Woodrow Hartzog

Faculty Scholarship

The United States intellectual property ("IP") system is the foundation for incentives for authors and inventors to create and invent so that their work will be distributed to the public for the betterment of society. These incentives, in the form of limited monopolies over creations via patents, copyrights, and trademarks, are becoming increasingly important as the United States depends upon intellectual property to sustain its economy. As the intellectual property industry grows, it becomes vital to preserve the impetus behind its creation: the public good, or more specifically, the public's ability to make use of and enjoy new ideas and …

The Software Patent Experiment, Robert M. Hunt, James Bessen

Faculty Scholarship

Over the past two decades, the scope of technologies that can be patented has been expanded to include many items previously thought unsuitable for patenting, for example, computer software. Today, the U.S. Patent and Trademark Office grants 20,000 or more software patents a year. Conventional wisdom holds that extending patent protection to computer programs will stimulate research and development and, thus, increase the rate of innovation. In this article, Bob Hunt and Jim Bessen investigate whether this has, in fact, happened. They describe the spectacular growth in software patenting, who obtains patents, and the relationship between a sharp focus on …

Where Have The Great Inventers Gone?, James Bessen

Faculty Scholarship

The author expands on the idea that the patent system has been a hinderance to collaborative innovation.

The Great Divide: Considering Section 157a Of The Singapore Companies Act, Pearlie Koh

Research Collection Yong Pung How School Of Law

The manner in which the powers of a company are carved out to be exercised by either the general meeting of shareholders or its board of directors is often a matter of interpretation of the constitution of the company. This approach retains a fair amount of flexibility in the differing models of power allocation that may be adopted by incorporators, but once carved out, the power allocation usually remains sacrosanct until such time as the constitution is validly altered. This was the position in Singapore before 2003. In 2003, the Companies Act of Singapore was amended to include s 157A, …

Hierarchies Of Harm In Canadian Criminal Law: The Marijuana Trilogy And The Forcible 'Correction' Of Children, Janine Benedet

All Faculty Publications

The author examines the seemingly contradictory Supreme Court of Canada decisions which upheld the prohibition on possession of marijuana (R. v. Malmo-Levine), yet allowed the defence of “reasonable correction” for parents and teachers charged with assaulting a child (Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General)). She argues that these two decisions speak to the limits of the criminal law and the role that section 7 of the Canadian Charter of Rights and Freedoms plays in setting those limits. These decisions are also linked by the attempt by some members of the Court to establish a …

Aedpa's "Adjudication On The Merits" Requirement: Collateral Review, Federalism, And Comity, Robert D. Sloane

Faculty Scholarship

The modern law of federal habeas corpus is a labyrinth of counterfactuals and arcane procedural hurdles that few state petitioners manage to navigate-as Justice Blackmun once wrote less charitably in dissent, "a Byzantine morass of arbitrary, unnecessary, and unjustifiable impediments to the vindication of federal rights." The convoluted inquiries required arise from the need to reconcile three developments of the past four decades that remain in tension with one another: first, the Warren Court's expansion of federal habeas relief, identified with Fay v. Noia and its progeny; second, the Burger and Rehnquist Courts' curtailment of that expansion, identified with Wainwright …

Is Equity Compensation Tax Advantaged?, David I. Walker

Faculty Scholarship

Employees who receive stock options and other forms of equity compensation generally are able to defer paying tax on this compensation for years, sometimes decades. In a rising market this deferral results in a tax benefit at the employee level. This article asks whether the employee-level tax benefit in a rising market results in a global tax advantage for companies that rely heavily on equity compensation and their employees. There are two primary issues. First, on initial inspection one might conclude that the employee-level benefit in a rising market is offset by a disadvantage in a stagnant or declining market. …

Free Trade Against Free Riders?, Kevin Outterson

Faculty Scholarship

The US is using free trade agreements to address the global free rider problem in pharmaceutical R&D. This brief article outlines several objections to that approach.

Developments In International Commercial Dispute Resolution In 2003, Mark W. Friedman, Jack J. Coe, William W. Park, Dietmar W. Prager, Steven Smith

Faculty Scholarship

The past year was another active one for international commercial disputes, with significant although not revolutionary developments in U.S. arbitration law, and considerable growth in investor-State disputes under investment treaties.

Do We Have A Right To Speak With Another's Language? Eldred And The Duration Of Copyright, Wendy J. Gordon

Faculty Scholarship

The law embodies two contradictory sets of rights and interests pertaining to copyright and speech. On the one hand. stand authors' claims to deserve compensation and control over their works. On the other hand stand the public's claims to be free to build on and deploy the cultural works that pervade daily life.

Legal And Ethical Duties Of Lawyers After Sarbanes-Oxley, Roger C. Cramton, George M. Cohen, Susan P. Koniak

Faculty Scholarship

This Article examines the legal and ethical duties of lawyers after Sarbanes-Oxley, focusing on the application, interpretation and ambiguities of the SEC rule implementing Section 307. Although our primary frame of reference will be on the SEC's new rules as an aspect of lawyer regulation, those rules are part of federal securities laws and should be considered in that aspect, i.e., whether they advance the purposes of the federal securities laws. The rules affecting lawyers should not be assessed in a vacuum as a mere turf war between federal regulators on the one hand and the organized bar and its …