Law Commons^™

Punishment And Accountability: Understanding And Reforming Criminal Sanctions In America, Donald Braman

GW Law Faculty Publications & Other Works

The vast majority of Americans favor sanctions that require offenders to engage in responsible behavior - to work, pay restitution, or support dependents; to participate in a mandatory job training, literacy, or drug treatment program; or to meet some other prosocial obligation. While this intuitive preference crosses political and ideological divides, nothing in our classical theories of punishment properly accounts for or develops this intuition. In this Article, Donald Braman explores the popular preference for and the benefits that attach to these accountability-reinforcing sanctions. Reviewing existing and original ethnographic, interview, and survey data, he describes why these sanctions have such …

Protecting Privacy Against The Police In The European Union: The Data Retention Directive, Francesca Bignami

GW Law Faculty Publications & Other Works

This essay examines the European Union's new turn towards protecting personal data against the police. The first part explores the developments that have given rise to these policies: the dramatic possibilities of today's digital technologies for the police and the intensification of police cooperation in the European Union following the terrorist attacks in New York, Madrid, and London. The second part analyzes the piece of legislation with the most significant data protection ramifications to be enacted at the time of this writing: the Data Retention Directive. The essay concludes with some thoughts on how the largely positive rights experience of …

Is It Sometimes Good To Run Budget Deficits? If So, Should We Admit It (Out Loud)?, Neil H. Buchanan

GW Law Faculty Publications & Other Works

There are bad deficits and there are good deficits. What makes a fiscal deficit good or bad depends on both the context in which the deficit is run and the reason that the deficit is rising. The belief that it is unquestionably foolish to adopt policies that directly or indirectly increase the government's annual borrowing on the financial markets - which is what it means to run a budget deficit - is not the universal truth that the current conventional wisdom might imply. Budget deficits are potentially dangerous and must be monitored carefully, but they are not always, inevitably, completely, …

The Jec's Estate Tax Report: Myths And Legends, Neil H. Buchanan

GW Law Faculty Publications & Other Works

Advocates of estate tax repeal often assert that family-run businesses and farms are broken up when heirs are unable to pay the estate tax. This claim has never been proven, but a recent Joint Economic Committee report claims to demonstrate that it is true. I assess the arguments and evidence presented in the JEC report and find that there is nothing in it that proves that the estate tax breaks up family-run businesses and farms. In fact, the most credible source cited by the report suggests that families might have adequate liquid resources to pay the estate tax or even …

The Case Against Income Averaging, Neil H. Buchanan

GW Law Faculty Publications & Other Works

Should tax liability be based on annual income or on the average of a taxpayer's income earned over the space of several years (or even a lifetime)? This article assesses proposals to replace the current method of computing taxes with a system that would allow taxpayers to smooth out their income tax liabilities by offsetting high-income years with low-income years. While the usual discussion of this issue revolves around supposed horizontal inequities, I show that it is not clear that the current system generates horizontal inequities at all; and even if it does, I suggest as a normative issue that …

Poor Children: Child Witches And Child Soldiers In Sub-Saharan Africa, Naomi R. Cahn

GW Law Faculty Publications & Other Works

This paper, written for a symposium on The Mind of a Child, examines two different aspects of the accountability of children: those children who are thrown away by their families because they are sorcerers, and those children who become soldiers and, through their involvement in armed conflict, inflict violence and death on others, including children. Like all other children, both sets of children are especially vulnerable because of their developmental (im)maturity. Indeed, as policy-makers struggle to develop strategies for responding to the needs of these children, the new neuroscientific literature provides yet another basis for arguing that children must be …

Planning Options For The Daily Care Of A Minor In The Event Of An Adult's Incapacity Or Death, Naomi R. Cahn

GW Law Faculty Publications & Other Works

While most children grow up in their families of origin with at least one of their parents, what happens when the parents die or are incapacitated? While they are alive, parents are presumed to be the legal guardians for their children, and if one dies or has had his/her parental rights terminated, then the surviving parent is generally the sole legal guardian. Even if that parent remarries, the stepparent is not the legal parent.

As this chapter shows, parents can give to other adults some of their legal caretaking responsibilities while they are still competent. There are three different methods …

Private Monitoring Of Gatekeepers: The Case Of Immigration Enforcement, Jeffrey Manns

GW Law Faculty Publications & Other Works

This article shows how the enlistment of private monitors can overcome the limits of public enforcers in overseeing gatekeeper compliance with liability-induced duties. Gatekeepers are private actors who possess skills or advantages that allow them to detect and prevent wrongdoing in a more cost-effective way than the state. The problem enforcers face is that the same skills or advantages that equip gatekeepers with the ability to identify wrongdoing often provide them with the means and incentives to subvert their duties and to evade public oversight. Policymakers have largely attempted to remedy this challenge by increasing sanctions against gatekeepers and have …

The Corporate Lawyer And 'The Perjury Trilemma', Thomas D. Morgan

GW Law Faculty Publications & Other Works

This paper extends Monroe Freedman's idea of the criminal lawyer's "perjury trilemma" to current issues faced by corporate lawyers dealing with perceived pressures on the attorney-client privilege. The duties of criminal defense and corporate lawyers are more similar than they often seem. Corporate lawyers' duties of honesty in dealing with third parties are closely analogous to criminal lawyers' duties of honesty in dealing with a court. Both sets of lawyers also have an important interest in fostering open communications with their clients. Where their situations differ is not with respect to lawyer obligations but with respect to their clients' rights. …

A Place At The Table: Creating Presence And Voice For Teenagers In Dependency Proceedings, Catherine J. Ross

GW Law Faculty Publications & Other Works

This comment argues that lawyers for youth in foster care too often fail to include their clients in judicial hearings and that foster youth are entitled to appear at hearings where critical decisions affecting their lives will be made. The article reviews studies showing that foster children complain that they have little or no opportunity to be heard, and discusses the interplay between foster care and problems at school.

Linking Domestic Violence, Child Abuse, And Animal Cruelty, Joan Schaffner

GW Law Faculty Publications & Other Works

For years social science has demonstrated a link between animal abuse and human violence but the legal system has been slow to recognize this link. This article discusses the link among domestic violence, child abuse and animal abuse in the home and how one jurisdiction, the District of Columbia, is addressing this complex and integrated cycle of abuse as family abuse. The legal proposals include mandatory cross-reporting of abuse between child services and animal protection services, recognizing pet abuse with the intent of injuring a human family member as grounds for an intra-family abuse protective order, providing companion animal protection …

A Grand Slam Of Professional Irresponsibility And Judicial Disregard, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

Many examples of bad lawyering and indifferent judicial responses to bad lawyering concern those who seek to raise the standards of professional conduct and assure adequate legal representation for all clients. This article discusses one case (a death penalty prosecution of William Charles Payton for rape, murder and attempted murder in 1981) to illustrate just how poor the performance of lawyers can be and how largely indifferent judges often are to such performances. With the defendant's life on the line, it appears that none of the legally trained professionals at trial did what professional standards required of them. The prosecutor …

The Fourth Amendment: Internal Revenue Code Or A Body Of Principles?, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

The Supreme Court has made the body of Fourth Amendment law too complicated, inconsistent, and confusing. Prior to Mapp v. Ohio, in 1961, the Court focused its attention on federal law enforcement and devoted less of its docket to criminal procedure cases. After Mapp, the Court was called upon to review state cases and forced to deal with the myriad of state law enforcement issues that inevitably arise. Since Mapp, the Court has made the meaning of the relatively few words that constitute the Fourth Amendment extremely complicated, so that the total body of Fourth Amendment law has begun to …

Vicious Dog Laws Unconstitutional In Ohio, Joan Schaffner, Barbara J. Gislason

GW Law Faculty Publications & Other Works

On March 3, 2006, an Ohio appeals court issued a landmark decision in City of Toledo v. Tellings, 2006 WL 513946 (Ohio App. 6 Dist), which may affect pit bulls and pit bull "look-a-likes" and their owners nationwide. Tellings was the owner of three pit bulls. The warden killed one of his pit bulls and criminally charged Tellings with two violations of the local Toledo ordinance limiting ownership to one vicious dog per household and two violations of the state statute requiring liability insurance with ownership of a vicious dog. The vicious dog laws on Ohio include pit bulls in …

Women In The Workplace: Which Women, Which Agenda?, Michael Selmi, Naomi R. Cahn

GW Law Faculty Publications & Other Works

Much of the work family literature that has blossomed over the last decade has focused on professional women and has emphasized policy changes that would be of less utility to many other working women and men. In this symposium contribution, we explore the recent data on working time to demonstrate that in today's economy more women are underemployed rather than overemployed. We also demonstrate that although professional women tend to work the longest hours, they also tend to have the greatest means, both in income and workplace benefits, to support them in achieving a workable balance between their work and …

Race In The City: The Triumph Of Diversity And The Loss Of Integration, Michael Selmi

GW Law Faculty Publications & Other Works

This symposium piece explores the current state of our cities with a particular emphasis on political power, education and housing, and examines whether our move away from integration and towards diversity has been a trade worth making. Despite the transformation of most of the largest cities to majority-minority status, the latest data indicate that our housing remains deeply segregated, and urban schools deeply troubled, and in many instances, whites have been able to retain political power. The increased emphasis on diversity has not translated into the expected multicultural renaissance. The essay also explores the emerging issues relating to the ascendancy …

The Originalist's Dilemma, Peter J. Smith

GW Law Faculty Publications & Other Works

In response to Anti-Federalist complaints that the Constitution was dangerous because it was ambiguous, James Madison and Alexander Hamilton argued that judges would construe the Constitution in the same manner that they construed statutes, and in the process would fix the meaning of ambiguous constitutional provisions. In other words, the original understanding was that constitutional ambiguities would be resolved, among other means, through adjudication. During his lengthy tenure, Chief Justice John Marshall had ample occasion to fix constitutional meaning, and he presided over a Court that resolved many constitutional ambiguities according to a nationalistic view of the relationship between the …

A Taxonomy Of Privacy, Daniel J. Solove

GW Law Faculty Publications & Other Works

Privacy is a concept in disarray. Nobody can articulate what it means. As one commentator has observed, privacy suffers from an embarrassment of meanings. Privacy is far too vague a concept to guide adjudication and lawmaking, as abstract incantations of the importance of privacy do not fare well when pitted against more concretely-stated countervailing interests.

In 1960, the famous torts scholar William Prosser attempted to make sense of the landscape of privacy law by identifying four different interests. But Prosser focused only on tort law, and the law of information privacy is significantly more vast and complex, extending to Fourth …

A Brief History Of Information Privacy Law, Daniel J. Solove

GW Law Faculty Publications & Other Works

This book chapter provides a brief history of information privacy law in the United States from colonial times to the present. It discusses the development of the common law torts, Fourth Amendment law, the constitutional right to information privacy, numerous federal statutes pertaining to privacy, electronic surveillance laws, and more. It explores how the law has emerged and changed in response to new technologies that have increased the collection, dissemination, and use of personal information.

A Model Regime Of Privacy Protection, Daniel J. Solove

GW Law Faculty Publications & Other Works

A series of major security breaches at companies with sensitive personal information has sparked significant attention to the problems with privacy protection in the United States. Currently, the privacy protections in the United States are riddled with gaps and weak spots. Although most industrialized nations have comprehensive data protection laws, the United States has maintained a sectoral approach where certain industries are covered and others are not. In particular, emerging companies known as "commercial data brokers" have frequently slipped through the cracks of U.S. privacy law. In this article, the authors propose a Model Privacy Regime to address the problems …

A Tale Of Two Bloggers: Free Speech And Privacy In The Blogosphere, Daniel J. Solove

GW Law Faculty Publications & Other Works

This short essay was written for the symposium, Bloggership: How Blogs are Transforming Legal Scholarship, held at Harvard Law School on April 27-28, 2006. In this essay, Professor Solove examines Glenn Reynold's new book, An Army of Davids, which champions little guy bloggers (the Davids) who are taking on mainstream media entities (the Goliaths).

Who exactly is David? We have a rather romantic conception of bloggers; we envision Eugene Volokh, but most bloggers are probably more akin to Jessica Cutler, the U.S. Senate staffer who blogged about sex gossip. The average blogger is a teenager writing an online diary, not …

The Multistate Bar Exam As A Theory Of Law, Daniel J. Solove

GW Law Faculty Publications & Other Works

What if the Bar Exam were read as a work of jurisprudence? What is its theory of law? How does the Bar Exam compare to works of jurisprudence by H.L.A. Hart, Ronald Dworkin, Karl Llewellyn, and others? This short tongue-in-cheek book review of the Bar Exam seeks to answer these questions. Each year, thousands of lawyers-to-be ponder over it, learning its profound teachings on the meaning of the law. They study it for months, devoting more time to it than practically any other jurisprudential text. It therefore comes as a great surprise that such a widely read and studied work …

Liability Externalities And The Law: A Comment On Cooter And Porat, Keith N. Hylton

Faculty Scholarship

Robert Cooter and Ariel Porat have offered a simple model of tort liability with sensible reform proposals. Their focus is in on damage levels, and how those levels can be modified to reflect the socially desirable level of externalization. However, to the extent that there is any gain to be achieved by modifying damage awards, it would be better to secure this gain through other approaches, such as adopting a more careful analysis of factual causation or reducing the likelihood of judicial error.

What Is Dilution, Anyway?, Stacey Dogan

Faculty Scholarship

Ever since the Supreme Court decided Moseley v. V Secret Catalogue, Inc. in 2003, an amendment to the Federal Trademark Dilution Act (“FTDA”) has appeared inevitable. Congress almost certainly meant to adopt a “likelihood of dilution” standard in the original statute, and the 2006 revisions correct its sloppy drafting. Substituting a “likelihood of dilution” standard for “actual dilution,” however, does not resolve a deeper philosophical question that has always lurked in the dilution debate: what is dilution, and how does one prove or disprove its probability? The statutory definition notwithstanding, this issue remains largely unanswered, leaving the courts with the …

Transnational Criminal Law And Procedure: An Introduction, Sadiq Reza

Faculty Scholarship

What is “transnational” criminal law? One possibility is foreign criminal law, meaning the scope and substance of what is deemed criminal behavior in other lands and the theories that ostensibly justify punishing for such behavior, indeed deeming it criminal in the first place. Another is foreign criminal procedure, the “how” of foreign criminal law’s “what” and “why”: the rules and practices of investigating crime, prosecuting suspected criminals, and adjudicating criminal cases in other lands or systems. More common meanings, judging from articles in U.S. law reviews, are comparative criminal law and comparative criminal procedure, though these might differ from their …

Oliver Wendell Holmes, Jr.: The Judge As Celebrity, David J. Seipp

Faculty Scholarship

No abstract provided.

Genealogies Of Soft Law, Anna Di Robilant

Faculty Scholarship

The relatively recent blossoming of multiple soft law tools and the calls for a soft harmonization of European private law have invited reflection on the genealogy of soft law. Genealogical arguments have come to play a critical role in the heated European soft law v. hard law debate. While some find the ancestors of soft law in the medieval legal regime and particularly the lex mercatoria, others link soft law to a prolific strand of 19th and early 20th century theories of social law and legal pluralism. At times explicitly invoked, more often im plicitly alluded to, the neo-medieval genealogy …

Estimates Of Patent Rents From Firm Market Value, James Bessen

Faculty Scholarship

The value of patent rents is an important quantity for policy analysis. However, estimates in the literature based on patent renewals might be understated. Market value regressions could provide validation, but they have not had clear theoretical foundations for estimating patent rents. I develop a simple model to make upper bound estimates of patent rents using regressions on Tobin's Q. I test this on a sample of US firms and find it robust to a variety of considerations. My estimates correspond well with estimates based on patentee behavior outside the pharmaceutical industry, but renewal estimates might be understated for pharmaceuticals.

The U.S. Supreme Court And Medical Ethics: From Contraception To Managed Health Care, George J. Annas

Faculty Scholarship

Review of The U.S. Supreme Court and Medical Ethics: From Contraception to Managed Health Care (2004) by Bryan Hilliard

Jackson V. Birmingham Board Of Education: Title Ix's Implied Private Right Of Action For Retaliation, Elizabeth Mccuskey

Faculty Scholarship

The Supreme Court has penned countless words about the sound of statutory silence.' On March 29, 2005, the Court once again grappled with the meaning of silence in a statute, splitting along familiar 5-4 lines in Jackson v. Birmingham Board of Education.² When the dust cleared, a male coach of a high school girls' basketball team, who was fired in retaliation for protecting his players' Title IX³ rights, possessed a private right of action arising from the statute itself.⁴ Although the Court has retreated from its high-water mark of implying private rights of action,⁵ in …