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An Introduction To The History Of International Human Rights Law, Dinah L. Shelton Jan 2007

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 …


Global Climate Change And The Risks To Coastal Areas From Hurricanes And Rising Sea Levels: The Costs Of Doing Nothing, Robert L. Glicksman Jan 2007

Global Climate Change And The Risks To Coastal Areas From Hurricanes And Rising Sea Levels: The Costs Of Doing Nothing, Robert L. Glicksman

GW Law Faculty Publications & Other Works

In the wake of Hurricane Katrina, attention has focused on a pair of threats to low-lying coastal areas. Scientists have begun a debate over the possible impact of global climate change on hurricane intensity. Some scientists take the position that recent increases in hurricane intensity in the North Atlantic are due, at least in part, to increases in sea surface temperatures caused by human-induced global climate change. Others believe that those increases are largely due to natural fluctuations in weather patterns such as the Atlantic Multidecadal Oscillation. There is little debate over a second threat to coastal areas. The broad …


The Comparative Effectiveness Of Government Interventions On Environmental Performance In The Chemical Industry, Robert L. Glicksman, Dietrich Earnhart Jan 2007

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 …


Nothing Is Real: Protecting The Regulatory Void Through Federal Preemption By Inaction, Robert L. Glicksman Jan 2007

Nothing Is Real: Protecting The Regulatory Void Through Federal Preemption By Inaction, Robert L. Glicksman

GW Law Faculty Publications & Other Works

Whether a federal statute preempts state law has important implications for the allocation of power between the federal and state governments. One aspect of preemption doctrine that has received relatively little scholarly attention is whether the federal government's failure to act is capable of preempting state law and, if so, when. In the regulatory context, Congress must first decide whether as a normative matter it should preempt state law despite its decision not to regulate activities regulated by states. Once Congress has done so, the courts may need to interpret federal legislation to determine whether Congress has decided to preempt …


Marriages Of Convenience: International Marriage Brokers, 'Mail-Order Brides,' And Domestic Servitude, Suzanne H. Jackson Jan 2007

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 …


Campaign Speech And Contextual Analysis, Miriam Galston Jan 2007

Campaign Speech And Contextual Analysis, Miriam Galston

GW Law Faculty Publications & Other Works

Recent developments - such as a wave of FEC enforcement actions, the FEC's publication of its case by case approach to determining political committee status, and the Supreme Court's decision in FEC v. Wisconsin Right to Life - have made it necessary to reconsider the kinds of campaign finance reforms desirable and constitutionally permissible. This Article examines the proposition that, if section 527 groups and groups exempt under section 501 of the Internal Revenue Code are part of a network of commonly managed organizations, then the FEC should decide whether they need to register as political committees under the Federal …


A Concise Guide To The Federalist Papers As A Source Of The Original Meaning Of The United States Constitution, Gregory E. Maggs Jan 2007

A Concise Guide To The Federalist Papers As A Source Of The Original Meaning Of The United States Constitution, Gregory E. Maggs

GW Law Faculty Publications & Other Works

Many lawyers, judges, law clerks, and legal scholars feel unprepared to make or evaluate claims about the original meaning of the Constitution based on the Federalist Papers. The typical law school curriculum acknowledges the importance of the Federalist Papers - usually by assigning Supreme Court cases which cite them - but does not treat the essays in depth. As a result, many law students and graduates still need accessible information about the creation, content, and distribution of the essays, manageable summaries of the theories under which the Federalist Papers might provide evidence of the original meaning, and instruction on possible …


Assessing The Legality Of Counterterrorism Measures Without Characterizing Them As Law Enforcement Or Military Action, Gregory E. Maggs Jan 2007

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 …


A Complaint About Payment Law Under The U.C.C.: What You See Is Often Not What You Get, Gregory E. Maggs Jan 2007

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 Jan 2007

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 …


Easier Said Than Done? A Corporate Law Theory For Actualizing Social Responsibility Rhetoric, Lisa M. Fairfax Jan 2007

Easier Said Than Done? A Corporate Law Theory For Actualizing Social Responsibility Rhetoric, Lisa M. Fairfax

GW Law Faculty Publications & Other Works

Post Enron has witnessed renewed concern regarding corporations' failure to behave responsibly, both in terms of their ethical responsibility and in terms of their responsibilities to advance issues beyond financial matters, such as those that impact employees, customers, and the broader community. Many scholars, legislators, and members of the business community have struggled to find strategies for restoring corporate responsibility. This Article argues that a corporation's own words or rhetoric may be useful in solving its behavioral defects. In fact, the vast majority of corporations issue statements or otherwise engage in rhetoric that suggest a commitment to issues and concerns …


A Collective Action Perspective On Ceiling Preemption By Federal Environmental Regulation: The Case Of Global Climate Change, Robert L. Glicksman, Richard E. Levy Jan 2007

A Collective Action Perspective On Ceiling Preemption By Federal Environmental Regulation: The Case Of Global Climate Change, Robert L. Glicksman, Richard E. Levy

GW Law Faculty Publications & Other Works

In an era of regulatory skepticism, proponents of regulation in general and environmental regulation in particular face a number of new political and legal hurdles, particularly at the federal level. Frustrated with federal inaction or weak federal regulation, it is increasingly common for states and local governments to adopt environmental laws that seek to provide greater environmental protection. The critical question is when federal environmental law provides a ceiling, preempting such state regulatory programs. In this article, which is part of a forthcoming symposium on federal preemption in the Northwestern Law Review, Professors Glicksman and Levy develop a framework for …


A Jurisprudence Of Ideology, Robert L. Glicksman, James May Jan 2007

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 …


The Future Of Reputation: Gossip, Rumor, And Privacy On The Internet, Daniel J. Solove Jan 2007

The Future Of Reputation: Gossip, Rumor, And Privacy On The Internet, Daniel J. Solove

GW Law Faculty Publications & Other Works

This is the complete text of Daniel J. Solove's book, THE FUTURE OF REPUTATION: GOSSIP, RUMOR, AND PRIVACY ON THE INTERNET (Full Text) (Yale University Press, October 2007).

Teeming with chatrooms, online discussion groups, and blogs, the Internet offers previously unimagined opportunities for personal expression and communication. But there's a dark side to the story. A trail of information fragments about us is forever preserved on the Internet, instantly available in a Google search. A permanent chronicle of our private lives - often of dubious reliability and sometimes totally false - will follow us wherever we go, accessible to friends, …


Ensuring A 'Yes-Pets' Rule, Joan Schaffner Jan 2007

Ensuring A 'Yes-Pets' Rule, Joan Schaffner

GW Law Faculty Publications & Other Works

For many people, their companion animal is their "life-line." Almost 65% of all US households have a companion animal. Moreover, it is well-documented that living with a companion animal is therapeutic. Unfortunately, obtaining housing that allows companion animals can be very difficult. It is common for rental leases to prohibit companion animals. Moreover, many mobile home parks, cooperatives, condominiums and homeowners associations are banning companion animals, leaving fewer and fewer opportunities for people to benefit from the love of a companion animal. Last but not least, many homeless animals are needlessly destroyed because no-pet rules eliminate options for placing them. …


The Many Faces Of Darlene Jespersen, Michael Selmi Jan 2007

The Many Faces Of Darlene Jespersen, Michael Selmi

GW Law Faculty Publications & Other Works

This essay was written for a symposium on the case Jespersen v. Harrah's Operating Co., in which Darlene Jespersen challenged Harrah's policy that required its female employees to wear makeup. In this essay, I explore the applicable case law, focusing specifically on the emerging law of sexual stereotyping to explain why the law was unwilling to recognize Jespersen's claim. In addition, I suggest that Jespersen's case is symptomatic of the way in which we have come to expect too much both from work and from courts. The workplace is typically not a place to express our identities and the fact …


Judicial Interpretation In The Cost-Benefit Crucible, Jonathan R. Siegel Jan 2007

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 …


New Legal Fictions, Peter J. Smith Jan 2007

New Legal Fictions, Peter J. Smith

GW Law Faculty Publications & Other Works

There was a time when judges routinely deployed legal fictions, which Lon Fuller famously defined as false statements not intended to deceive, in order to temper the disruptive effect of changes in legal doctrine. In an age of positive law, such classic legal fictions are significantly less common. But they have been replaced by new legal fictions.

In fashioning legal rules, judges rely with surprising frequency on false, debatable, or untested factual premises. At times, of course, such false premises simply reflect judicial ignorance. But there is an increasingly large body of empirical research available to judges, and more often …


Technology And Pornography, Dawn C. Nunziato Jan 2007

Technology And Pornography, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

Over the past decade, legislators and industry players have attempted to employ technology to restrict the availability to minors of sexually-themed Internet content. Legislative efforts have relied on adult verification and software filtering technology. The constitutionality of such schemes generally depends on the level of sophistication, efficacy, and deployment of adult verification technology, the burdens that the required use of such technology imposes on content providers and Internet end users, and availability of less restrictive but equally effective alternatives for achieving the government's interest. In the case of both the CDA and COPA, challengers pointed to the less restrictive alternative …


'Impeaching' Cooperating Witnesses, Stephen A. Saltzburg Jan 2007

'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 …


Nontestimonial Hearsay After Crawford, Davis And Bockting, Laird Kirkpatrick Jan 2007

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 …


The Worldwide Popular Revolt Against Proportionality In Self-Defense Law, Renée Lettow Lerner Jan 2007

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 …


Improper Use Of The Trial Judge As Voucher: Improper Use Of Plea Agreements To Vouch, Stephen A. Saltzburg Jan 2007

Improper Use Of The Trial Judge As Voucher: Improper Use Of Plea Agreements To Vouch, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

These articles discuss United States v. Harlow, 444 F.3d 1255 (10th Cir. 2006), in connection with: (1) whether a prosecutor acts improperly when he or she uses the trial judge to vouch for the credibility of prosecution witnesses; and (2) the impermissible use of plea agreements to vouch for the credibility of a witness.


Depiction Of The Regulator-Regulated Entity Relationship In The Chemical Industry: Deterrence-Based V. Cooperative Enforcement, Robert L. Glicksman, Dietrich Earnhart Jan 2007

Depiction Of The Regulator-Regulated Entity Relationship In The Chemical Industry: Deterrence-Based V. Cooperative Enforcement, Robert L. Glicksman, Dietrich Earnhart

GW Law Faculty Publications & Other Works

For years, scholars and environmental policymakers have conducted a spirited debate about the comparative merits of two different approaches to enforcement of the nation's environmental laws - the coercive (or deterrence-based) and cooperative approaches. Supporters of the coercive model regard the deterrence of violations as the fundamental purpose of environmental enforcement. These supporters also regard the imposition of sanctions, which make it less costly for regulated entities to comply with their regulatory responsibilities and avoid enforcement than to fail to comply and run the risk of enforcement, as the most effective way for inducing regulated entities to comply with their …


Cultural Convergence: Interest Convergence Theory Meets The Cultural Defense?, Cynthia Lee Jan 2007

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 …


Toward A 'New' New Haven School Of International Law?, Laura T. Dickinson Jan 2007

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 …


Should Law Schools Bar Student Organizations From Inviting The Military To Campus For Recruitment Purposes?, Joan Schaffner Jan 2007

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 First Amendment As Criminal Procedure, Daniel J. Solove Jan 2007

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, …


Beyond Invisibility: Afro-Argentines In Their Nation's Culture And Memory, Robert J. Cottrol Jan 2007

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.


Normative Nominalism: The Paradox Of Egalitarian Law In Inegalitarian Cultures - Some Lessons From Recent Latin American Historiography, Robert J. Cottrol Jan 2007

Normative Nominalism: The Paradox Of Egalitarian Law In Inegalitarian Cultures - Some Lessons From Recent Latin American Historiography, Robert J. Cottrol

GW Law Faculty Publications & Other Works

This essay is a contribution to the discussion of the conflict that often exists between legal norms and legal practice in Latin America. It examines the conflict between equality under the law as a legal and constitutional norm in Latin America and the persistence of strong inequality as a social reality in Latin America. The essay examines this tension through a look at recent Latin American legal historiography. Essays include issues of race, class and the law in the nineteenth century Brazilian Empire, race and the law in early 20th century Cuba and Brazilian labor law in the middle and …