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Articles 1 - 30 of 70
Full-Text Articles in Law
The Uneasy Case For Patent Races Over Auctions, Michael B. Abramowicz
The Uneasy Case For Patent Races Over Auctions, Michael B. Abramowicz
GW Law Faculty Publications & Other Works
In advancing his prospect theory of patents, Edmund Kitch dismissed the possibility of distributing rights to particular inventions through auctions, arguing that the patent system avoids the need for governmental officials to define the boundaries of inventions that have not yet been created. Auctions for patent rights to entire inventive fields, however, might accentuate the benefits of a prospect approach, by allowing for earlier and broader patents. Auction designs that award the patent to the bidder that commits the most money to research and development or that agrees to charge the lowest price, meanwhile, can reduce the costs of the …
Erie's Constitutional Source, Bradford R. Clark
Erie's Constitutional Source, Bradford R. Clark
GW Law Faculty Publications & Other Works
The constitutional rationale of Erie Railroad Co. v. Tompkins has remained elusive for almost seventy years. Three decades ago, Paul Mishkin argued in a brief but influential article that Erie rests on "constitutional principles which restrain the power of the federal courts to intrude upon the states' determination of substantive policy in areas which the Constitution and Congress have left to state competence." Professor Mishkin wrote his article in response to John Hart Ely's insightful analysis of Erie published earlier the same year. Mishkin understood Erie as imposing a constitutional restraint on the federal courts, but read Ely as treating …
Beyond Liability: Rewarding Effective Gatekeepers, Lawrence A. Cunningham
Beyond Liability: Rewarding Effective Gatekeepers, Lawrence A. Cunningham
GW Law Faculty Publications & Other Works
This Article adds to the emerging literature on rewards to promote effective capital market gatekeeping. Capital market gatekeeping theory traditionally relies heavily on threats of legal liability for failure to perform legally mandated functions (along with a presumed constraint imposed by reputation effects). The ineffectiveness of many gatekeepers in the past decade revealed limitations of the liability strategy and yet reforms continue to emphasize legal duties and liability for gatekeepers. This emphasis also has the negative side-effect of discouraging gatekeepers from willingness to perform desired functions - such as to detect for fraud. Using rewards can induce gatekeepers to perform …
'Impeaching' Cooperating Witnesses, Stephen A. Saltzburg
'Impeaching' Cooperating Witnesses, Stephen A. Saltzburg
GW Law Faculty Publications & Other Works
This article, discussing trial tactics, considers the scenario in which the government seeks to elicit testimony from a witness, involved in the criminal activity, that has entered into a plea agreement; the defendant offers to stipulate that the defense will make no effort to impeach the witness through the use of the plea agreement and moves to exclude it from evidence; yet the prosecutor insists upon using the agreement. The article discusses United States v. Richardson, 421 F.3d 17 (1st Cir. 2005), and United States v. McNeill, 728 F.2d 5 (1st Cir. 1984), and concludes that there is no sensible …
Judicial Interpretation In The Cost-Benefit Crucible, Jonathan R. Siegel
Judicial Interpretation In The Cost-Benefit Crucible, Jonathan R. Siegel
GW Law Faculty Publications & Other Works
This article responds to Professor Adrian Vermeule's new book, Judging Under Uncertainty. Professor Vermeule argues that (1) no one can empirically determine whether judicial use of legislative history or other interpretive methods that go beyond simple enforcement of plain text has any positive net benefits, but (2) we do know that such interpretive methods impose costs, and therefore (3) courts should discard such interpretive methods. This article suggests that (1) it is far from clear how costly these interpretive methods are, (2) it is also not clear that discarding them would result in any cost savings, both because of costs …
Instruments Of Accommodation: The Military Chaplaincy And The Constitution, Robert W. Tuttle, Ira C. Lupu
Instruments Of Accommodation: The Military Chaplaincy And The Constitution, Robert W. Tuttle, Ira C. Lupu
GW Law Faculty Publications & Other Works
This essay addresses the proliferation of constitutional issues involving the military chaplaincy. The authors query how the chaplaincy is consistent with the Establishment Clause of the Constitution's First Amendment and note that the answer generally derives from one or more of the following paradigms: (1) Establishment Clause history; (2) Public funding of religion; or (3) Governmental display of religious messages. They suggest that an adequate approach for Establishment Clause analysis of the military chaplaincy requires a different framework. To that end, Part I of this essay describes Katcoff v. Marsh, the most important decision on the constitutionality of the military …
Wal-Mart And The Separation Of Banking And Commerce, Arthur E. Wilmarth Jr.
Wal-Mart And The Separation Of Banking And Commerce, Arthur E. Wilmarth Jr.
GW Law Faculty Publications & Other Works
During 2005-2006, Wal-Mart, Home Depot, and several other commercial firms applied to the Federal Deposit Insurance Corporation (FDIC) for permission to acquire FDIC-insured industrial loan companies (ILCs). Those applications were opposed by business groups, labor unions, community activists, and members of Congress. In January 2007, the FDIC imposed a one-year moratorium on all acquisitions of ILCs by commercial firms and asked Congress to determine whether such acquisitions should be prohibited.
As the FDIC noted, acquisitions of ILCs by commercial firms raise three important policy issues, which are addressed in this Article. First, commercial ownership of ILCs conflicts with the policy …
Beyond The Gun Fight: The Aftermath Of The Virginia Tech Massacre, Donald Braman, Dan M. Kahan
Beyond The Gun Fight: The Aftermath Of The Virginia Tech Massacre, Donald Braman, Dan M. Kahan
GW Law Faculty Publications & Other Works
Which side of the gun debate loses ground after the Virginia Tech Massacre? Neither. Here's why.
Emerging Policy And Practice Issues (2006), Steven L. Schooner, Christopher R. Yukins
Emerging Policy And Practice Issues (2006), Steven L. Schooner, Christopher R. Yukins
GW Law Faculty Publications & Other Works
This paper, presented at the West Government Contracts Year in Review Conference (covering 2006), attempts to identify the key trends and issues for 2007 in U.S. federal procurement. In large part, the paper discusses the Draft Final Report of the Acquisition Advisory Panel (AAP), a blue-ribbon commission mandated by Section 1423 of the Services Acquisition Reform Act (SARA). Proceeding from the simple premise that the private sector does a better job with procurement by planning carefully and employing aggressive competition, we discuss, among other things, the inaccuracies that plague the Federal Procurement Data System; the dramatic post-2000 trend in increased …
Toward A 'New' New Haven School Of International Law?, Laura T. Dickinson
Toward A 'New' New Haven School Of International Law?, Laura T. Dickinson
GW Law Faculty Publications & Other Works
We are currently in an era when the divergent methodologies of international law scholarship and the very idea that international norms might play a useful role are hotly contested. The debate about international law's impact, relevance, and role in the world has become increasingly intense as a particular version of rational choice theory, dressed up as non-normative empirical political science, has sought to advance a crabbed view of international law and to limit its influence. Scholars adhering to this view have argued that nation-state self-interest both is and should be the primary reason for forming and enforcing international law; that …
Nontestimonial Hearsay After Crawford, Davis And Bockting, Laird Kirkpatrick
Nontestimonial Hearsay After Crawford, Davis And Bockting, Laird Kirkpatrick
GW Law Faculty Publications & Other Works
The Sixth Amendment of the United States Constitution bars some hearsay from being introduced against criminal defendants on the ground that it would violate their right to confront the witnesses against them. In a recent series of decisions - Crawford, Davis and Bockting - the U.S. Supreme Court has narrowed the scope of the Confrontation Clause by interpreting it to govern only testimonial hearsay. This article criticizes the analysis and process by which the Court reached its conclusion that the Confrontation Clause has no application to nontestimonial hearsay and raises questions of history and policy about the possible dangers of …
Marriages Of Convenience: International Marriage Brokers, 'Mail-Order Brides,' And Domestic Servitude, Suzanne H. Jackson
Marriages Of Convenience: International Marriage Brokers, 'Mail-Order Brides,' And Domestic Servitude, Suzanne H. Jackson
GW Law Faculty Publications & Other Works
The International Marriage Broker Regulation Act of 2005 (IMBRA) expands federal regulation of the burgeoning "mail-order bride" industry by requiring international matchmaking agencies to conduct minimal criminal background checks on their U.S.-based clients and disclose the results to participating women, obtaining their signed consent before releasing any contact information to male clients. Two federal suits challenging IMBRA complain that it violates equal protection guarantees by exempting not-for-profit and religious matchmaking agencies, and violates First Amendment protections for commercial speech by regulating the agencies' communications with its clients. Defenders of the law's constitutionality accurately but incompletely describe IMBRA's purpose as preventing …
A Complaint About Payment Law Under The U.C.C.: What You See Is Often Not What You Get, Gregory E. Maggs
A Complaint About Payment Law Under The U.C.C.: What You See Is Often Not What You Get, Gregory E. Maggs
GW Law Faculty Publications & Other Works
In this Essay, Professor Maggs observes that many provisions of U.C.C. Articles 3, 4, 4A, and 5 are misleading. Although the provisions express certain rules, these rules often actually do not apply because the parties have waived them, because the parties have no practical way to enforce them, or because they are predicated on unrealistic assumptions. Professor Maggs laments that this discrepancy between what the U.C.C. says and reality may have deceived the state legislatures that voted to enact the U.C.C., that it may impose costs on businesses and consumers, and that it clearly hinders the education of lawyers and …
The Danger Of Underdeveloped Patent Prospects, Michael B. Abramowicz
The Danger Of Underdeveloped Patent Prospects, Michael B. Abramowicz
GW Law Faculty Publications & Other Works
Commentators have long recognized that much of the work of commercializing an invention occurs after a patent issues. They have not recognized, however, that by the time market conditions make commercialization potentially attractive, the remaining patent term might be sufficiently short such that a patentee will not develop an invention to the extent that the patentee would if more patent term remained. This concern about patent underdevelopment provides a counterweight to patent prospect theory, which urges that patents be issued relatively early in the invention process. While the patent system reduces this risk by requiring a substantial degree of achievement …
A Jurisprudence Of Ideology, Robert L. Glicksman, James May
A Jurisprudence Of Ideology, Robert L. Glicksman, James May
GW Law Faculty Publications & Other Works
Chief Justice Rehnquist figures prominently in recent historic environmental case law addressed by the Supreme Court. Although generally critical of federal environmental laws, the skepticism stemmed from an interest in the protection of state rights and protection of private property rights rather than a general challenge to federal regulation. His jurisprudence reflects three “guideposts” to consider environmental concerns: limiting the scope of federal power, protecting state sovereignty from encroachment by the federal government, and protecting the rights of private property owners against intrusions resulting from regulation by government. In limiting the scope of federal power, Rehnquist specifically supported limitations on …
Cultural Convergence: Interest Convergence Theory Meets The Cultural Defense?, Cynthia Lee
Cultural Convergence: Interest Convergence Theory Meets The Cultural Defense?, Cynthia Lee
GW Law Faculty Publications & Other Works
Much has been written about the so-called cultural defense or, more accurately, the proffer of cultural evidence by a criminal defendant seeking to mitigate a charge or sentence. Many scholars support the admission of cultural evidence, but argue it should be limited to cases where such evidence is used to negate the mens rea element of the charged offense. Others feel that the admission of cultural evidence violates the principle of equal protection and favors immigrant and minority defendants over American defendants, and therefore the practice should be sharply circumscribed. Recently, a few legal scholars have issued calls for recognition …
Assessing The Legality Of Counterterrorism Measures Without Characterizing Them As Law Enforcement Or Military Action, Gregory E. Maggs
Assessing The Legality Of Counterterrorism Measures Without Characterizing Them As Law Enforcement Or Military Action, Gregory E. Maggs
GW Law Faculty Publications & Other Works
In this article, I develop three theses. First, I claim that disagreements about the legality of counterterrorism measures commonly stem from disagreements about whether to characterize the measures as law enforcement efforts or as military actions. Observers who see the measures as methods of controlling crime assess their lawfulness differently from those who see them as a form of warfare against terrorists because criminal law enforcement rules differ substantially from the laws of war. With many specific examples, I show that disputes about legality based on disagreements over characterization have arisen in at least eight different subject areas, ranging from …
Beyond Invisibility: Afro-Argentines In Their Nation's Culture And Memory, Robert J. Cottrol
Beyond Invisibility: Afro-Argentines In Their Nation's Culture And Memory, Robert J. Cottrol
GW Law Faculty Publications & Other Works
This essay examines recent works on the history and culture of Afro-Argentines. It discusses why the study of Afro-Argentines has traditionally been an underexamined topic by scholars specializing in Argentina and why there has been a recent renewal of interest in the topic. Essay explores influence of Africans and Afro-Argentines on Argentine culture and the question of the so-called disappearance of the Afro-Argentines.
The First Amendment As Criminal Procedure, Daniel J. Solove
The First Amendment As Criminal Procedure, Daniel J. Solove
GW Law Faculty Publications & Other Works
This Article explores the relationship between the First Amendment and criminal procedure. These two domains of constitutional law have long existed as separate worlds, rarely interacting with each other despite the fact that many instances of government information gathering can implicate First Amendment freedoms of speech, association, and religion. The Fourth and Fifth Amendments used to provide considerable protection for First Amendment interests, as in the famous 1886 case Boyd v. United States, in which the Supreme Court held that the government was prohibited from seizing a person's private papers. Over time, however, Fourth and Fifth Amendment protection has shifted, …
Guide To International Environmental Law, Dinah L. Shelton, Alexandre Kiss
Guide To International Environmental Law, Dinah L. Shelton, Alexandre Kiss
GW Law Faculty Publications & Other Works
This book aims to present the essential elements of international environmental law. The attached document includes a page memorializing the life of Alexandre Kiss (who passed away on March 22, 2007); a forward; a table of contents, author information, abbreviations, and Chapter 1, "An Introduction to International Law." The book provides a general overview of why and how the international system elaborates environmental obligations and monitors compliance with them. Second, it discusses the relationship between international obligations and national and local law, with particular reference to federal systems. It indicates another interrelationship, pointing out the influence national law has on …
An Introduction To The History Of International Human Rights Law, Dinah L. Shelton
An Introduction To The History Of International Human Rights Law, Dinah L. Shelton
GW Law Faculty Publications & Other Works
As part of a lecture series given at the International Institute of Human Rights, in Strasbourg, France, in July 2003, the author presents an overview of the history of international human rights law. The author explores numerous religious, political, cultural, philosophical, economic and intellectual movements throughout history that have informed and guided the development of human rights law on the global stage. In doing so, the author examines the moral and ethical dimensions which underpin international human rights law, including what she defines as the innate human desire for protection from abuse. The author highlights the world's most significant historical …
China: Creating A Legal System For A Market Economy, Donald C. Clarke
China: Creating A Legal System For A Market Economy, Donald C. Clarke
GW Law Faculty Publications & Other Works
Since the early 1990s, China has come a long way in legislating the foundational rules for its reformed economy. Virtually all of the important areas-contracts, business organizations, securities, bankruptcy, and secured transactions, to name a few - are now covered by national legislation as well as lower-level regulations. Yet an important feature of a legal structure suited to a market economy is missing: the ability of the system to generate from below solutions to problems not adequately dealt with by existing legislation. The top-down model that has dominated Chinese law reform efforts to date can only do so much. What …
The Comparative Effectiveness Of Government Interventions On Environmental Performance In The Chemical Industry, Robert L. Glicksman, Dietrich Earnhart
The Comparative Effectiveness Of Government Interventions On Environmental Performance In The Chemical Industry, Robert L. Glicksman, Dietrich Earnhart
GW Law Faculty Publications & Other Works
Effective enforcement is crucial to achieving the objectives of the federal environmental statutes. The federal Environmental Protection Agency (EPA) has recognized the importance of effective enforcement, calling it a critical aspect of environmental governance and committing itself to the maintenance of a "credible deterrent" to regulatory violations. Despite the central role of enforcement to achievement of environmental statutory goals, relatively little is known about why regulated entities either do or do not comply. In particular, empirical studies of environmental enforcement are not plentiful, in part because comprehensive data on compliance and enforcement have been difficult to obtain. Although EPA and …
The Worldwide Popular Revolt Against Proportionality In Self-Defense Law, Renée Lettow Lerner
The Worldwide Popular Revolt Against Proportionality In Self-Defense Law, Renée Lettow Lerner
GW Law Faculty Publications & Other Works
This article examines popular dissatisfaction with the proportionality standard in self-defense law, which holds that the prevention of harm cannot be achieved by causing harm that is disproportionate. Legal elites, such as prosecutors, judges, and legal scholars, have long championed versions of this standard. But there is an increasingly widespread movement in the United States and Europe to modify elite notions of proportionality.
Common to these movements is the desire to replace complicated balancing tests with clearer rules, which would limit the discretion of prosecutors and judges, and to permit use of deadly force against attackers in more situations. Fueling …
Should Law Schools Bar Student Organizations From Inviting The Military To Campus For Recruitment Purposes?, Joan Schaffner
Should Law Schools Bar Student Organizations From Inviting The Military To Campus For Recruitment Purposes?, Joan Schaffner
GW Law Faculty Publications & Other Works
The military's discrimination against gays combined with the Solomon Amendment that forces schools to allow equal access to military recruiters in violation of their non-discrimination policies, upheld by the Supreme Court under constitutional challenge in FAIR v. Rumsfeld, 126 S.Ct. 1297 (2006), has created many difficulties for law schools. The law schools are torn between protecting their gay students from discrimination and enforcing their non-discrimination policy and violating the Solomon Amendment and thus risking the loss of substantial federal funding. In September 2006, the George Washington Law School was presented with a question of first impression. To what extent should …
The Second National Risk And Culture Study: Making Sense Of - And Making Progress In - The American Culture War Of Fact, Donald Braman, Dan M. Kahan, Paul Slovic, John Gastil, Geoffrey L. Cohen
The Second National Risk And Culture Study: Making Sense Of - And Making Progress In - The American Culture War Of Fact, Donald Braman, Dan M. Kahan, Paul Slovic, John Gastil, Geoffrey L. Cohen
GW Law Faculty Publications & Other Works
Cultural Cognition refers to the disposition to conform one's beliefs about societal risks to one's preferences for how society should be organized. Based on surveys and experiments involving some 5,000 Americans, the Second National Risk and Culture Study presents empirical evidence of the effect of this dynamic in generating conflict about global warming, school shootings, domestic terrorism, nanotechnology, and the mandatory vaccination of school-age girls against HPV, among other issues. The Study also presents evidence of risk-communication strategies that counteract cultural cognition. Because nuclear power affirms rather than threatens the identity of persons who hold individualist values, for example, proposing …
Culture And Identity-Protective Cognition: Explaining The White Male Effect In Risk Perception, Donald Braman, Dan M. Kahan, John Gastil, Paul Slovic, C.K. Mertz200
Culture And Identity-Protective Cognition: Explaining The White Male Effect In Risk Perception, Donald Braman, Dan M. Kahan, John Gastil, Paul Slovic, C.K. Mertz200
GW Law Faculty Publications & Other Works
Why do white men fear various risks less than women and minorities? Known as the white male effect, this pattern is well documented but poorly understood. This paper proposes a new explanation: identity-protective cognition. Putting work on the cultural theory of risk together with work on motivated cognition in social psychology suggests that individuals selectively credit and dismiss asserted dangers in a manner supportive of their preferred form of social organization. This dynamic, it is hypothesized, drives the white male effect, which reflects the risk skepticism that hierarchical and individualistic white males display when activities integral to their cultural identities …
European Versus American Liberty: A Comparative Privacy Analysis Of Anti-Terrorism Data-Mining, Francesca Bignami
European Versus American Liberty: A Comparative Privacy Analysis Of Anti-Terrorism Data-Mining, Francesca Bignami
GW Law Faculty Publications & Other Works
The difference between European and American regulation of marketplace privacy is well-established: information privacy is protected more under European law than American law. Recently, with the revelation of a number of U.S. government, anti-terrorism programs, it has become clear that the transatlantic difference is not limited to the market. Also in the face of government action, Europeans protect information privacy more than Americans. This paper brings to light the legal differences between the two systems by considering the case - real in the United States, hypothetical in Europe - of a spy agency's database of call records, created for the …
Book Review, Robert J. Cottrol
Book Review, Robert J. Cottrol
GW Law Faculty Publications & Other Works
Brazilian legal history has been a challenging and somewhat under-explored field. It presents often daunting challenges, requiring the uncovering of opaque and often conflicting legal doctrine and the ability to grapple with even harder to discern questions concerning the law’s application and impact on Brazilian history. The field has been under explored by Brazilian legal scholars who have tended to focus their historical investigations on the development of continental civil law. It has also suffered from neglect by historians, Brazilian and foreign, who have largely concentrated their efforts on the political, social and economic history of the South American colossus. …
'I'Ve Got Nothing To Hide' And Other Misunderstandings Of Privacy, Daniel J. Solove
'I'Ve Got Nothing To Hide' And Other Misunderstandings Of Privacy, Daniel J. Solove
GW Law Faculty Publications & Other Works
In this short essay, written for a symposium in the San Diego Law Review, Professor Daniel Solove examines the nothing to hide argument. When asked about government surveillance and data mining, many people respond by declaring: "I've got nothing to hide." According to the nothing to hide argument, there is no threat to privacy unless the government uncovers unlawful activity, in which case a person has no legitimate justification to claim that it remain private. The nothing to hide argument and its variants are quite prevalent, and thus are worth addressing. In this essay, Solove critiques the nothing to hide …