Law Commons^™

The Globalization Of Environmental Law, Robert V. Percival

Faculty Scholarship

Legal systems across the globe are responding to environmental concerns in surprising new ways. As nations upgrade their environmental standards, some are transplanting law and regulatory policy innovations derived from the experience of other countries, including nations with very different legal and cultural traditions. New national, regional, and international initiatives have been undertaken both by governments and private organizations. Greater cross-border collaboration between government officials, nongovernmental organizations, multinational corporations and other entities is shaping environmental policy in ways that blur traditional private/public/and domestic/international distinctions. The result has been the emergence of a kind of “global environmental law”-law that is neither …

Marriage, Property And [In]Equality: Remedying Erisa's Disparate Impact On Spousal Wealth, Paula A. Monopoli

Faculty Scholarship

Congress is considering pension reform in the wake of the tremendous loss in market value of retirement plans during the current recession. This article suggests that this is a historic moment to remedy a previously unidentified, unintended but profound gender disparity embedded in the federal law governing retirement plans in this country. It explores the common perception that while contemporary law and policy aim to facilitate equality within marriage, including in the area of property ownership, embracing equitable distribution in reallocating property upon divorce, the Employment Retirement Income Security Act’s (ERISA) structuring of retirement asset accumulation runs counter to this …

Regulatory Dysfunction: How Insufficient Resources, Outdated Laws, And Political Interference Cripple The 'Protector Agencies', Sidney A. Shapiro, Rena I. Steinzor, Matthew Shudtz

Faculty Scholarship

In the last several years, dramatic failures of the nation’s food safety system have sickened or killed tens of thousands of Americans, and caused billions of dollars of damages for producers and distributors of everything from fresh vegetables to granola bars and hamburger meat. In each case, the outbreak of food-borne illness triggered what can only be described as a frantic scramble by health officials to discover its source. Inevitably, the wrong lead is followed or a recall is too late or too narrow to prevent further illnesses, and the government has to defend itself against withering criticism. Americans expect …

When The Lawyer Knows The Client Is Guilty: Client Confessions In Legal Ethics, Popular Culture, And Literature, Michael Asimow, Richard H. Weisberg

Articles

The article explores the ethical dilemma faced by criminal defense lawyers when they know their client is factually guilty but the client insists on a vigorous defense. It examines the tension between the lawyer’s duty of zealous representation and the duty of candor toward the court, proposing a compromise that allows lawyers discretion to choose between strong or weak adversarial approaches based on the context. The analysis draws on historical cases, such as the Courvoisier case of 1840 and the modern case of Steven Feldman, as well as insights from popular culture and literary sources, to argue that the discretionary …

The Noble Business Of Incumbentocracy: A Reply To ‘The Sordid Business Of Democracy’, Christopher J. Roederer

School of Law Faculty Publications

Note: This essay is a response to Daniel Tokaji, The Sordid Business of Democracy, 34 Ohio Northern University Law Review 341 (2008). The term "incumbantocracy" appears to have been coined by Jamin B. Raskin in The Supreme Court's Double Standard, where he argued that "voters don't really pick public officials on Election Day because public officials pick voters on redistricting day." THE NATION, Feb. 6, 1995, at I 67-68.

If democracy is a sordid business—a base, dirty, and ignoble business—then perhaps it is not too much of a stretch to say that there is something simple, clean, and noble about …

Front Matter, Volume 34, Number 2, University Of Dayton

University of Dayton Law Review

Cover, table of contents, administrative information

Toward Open Source Hardware, John R. Ackermann

University of Dayton Law Review

No abstract provided.

Nonobviousness In The U.S. Post-Ksr For Innovative Drug Companies, Tom Irving, Lauren L. Stevens, Scott M.K. Lee

University of Dayton Law Review

No abstract provided.

Pro Bono: Assessing Aims And Achievement, Lisa A. Kloppenberg, Lori E. Shaw

School of Law Faculty Publications

Leaving behind a vibrant, effective pro bono program is a cherished legacy for any dean. Not only can such a program better the lives of our own students, but it also can harness their powerful minds, willing hearts, and many hands to serve the needs of our communities now and for years to come. If students hear about the importance of pro bono work and have easy access to pro bono opportunities during law school, they are more likely to get involved in public service after law school. As a result, the community and school benefit from their efforts, and …

Cases And Materials On Patent Law, Martin J. Adelman, Randall R. Rader, John R. Thomas

GW Law Faculty Publications & Other Works

This casebook provides a thorough overview of the fundamentals of U.S. patent law. The book is organized in fourteen chapters. The casebook starts with the current statute in Title 35 of the United States Code. It then considers the requirement of “usefulness” necessary to receive patent protection. The book proceeds to explain the requirement of “novelty” as well as the “nonobviousness standard.” The book also examines the various roles of the United States Patent and Trademark Office (“USPTO”), as well as the basics of the patent acquisition process.

After its discussion of the USPTO, the book provides an overview of …

Lifting The Floor: Sex, Class, And Education, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

This paper was written for a conference on third wave feminism. Third wave feminism recognizes the importance of "raising the floor," and this paper - from two second wave feminists - helps in developing an agenda for achieving that goal. After a brief exploration of two different models that we label "red families" and "blue families," this paper makes two critical points: first, it correlates the different models to the varying approaches to parental leave laws; and second, it expands our discussion of women and care beyond the workplace and child care, exploring what contributes to women's ability to care …

The Enforcement Of Wto Judgments, Steve Charnovitz

GW Law Faculty Publications & Other Works

This essay examines the WTO’s dispute resolution system known as the Dispute Settlement Understanding (“DSU”). Inspiration for this essay comes from an influential article written by Michael Reisman four decades ago titled “The Enforcement of International Judgments.” Professor Reisman’s article presented a model for improving enforcement of international judicial decisions in cases between states. My essay shows that the DSU has achieved much of what Professor Reisman envisioned with respect to systematic enforcement of multilateral tribunal decisions. My essay begins by summarizing the institutional improvements recommended by Professor Reisman. Then the essay demonstrates how the DSU achieves many of those …

The Three Or Four Approaches To Financial Regulation: A Cautionary Analysis Against Exuberance In Crisis Response, Lawrence A. Cunningham, David T. Zaring

GW Law Faculty Publications & Other Works

Unprecedented interest in financial regulation reform accompanies the nearly-unprecedented scale of financial calamity facing the world. Dozens of elaborate reform proposals are in circulation, most determined to revolutionize financial regulation. No doubt, the crisis makes reevaluation essential, but we contribute a cautionary analysis amid the exuberant atmosphere. Reforms should not discount the value of traditional financial regulation, overlook the functional regulatory reform that has already occurred, or overstate ultimate differences between contending reform proposals. Despite proliferation of dozens of reform proposals, our analysis leads us to conclude that there are ultimately only three or four principal alternatives: (1) the traditional …

Treatment Differences And Political Realities In The Gaap-Ifrs Debate, Lawrence A. Cunningham, William W. Bratton

GW Law Faculty Publications & Other Works

The Securities Exchange Commission has introduced a Roadmap that describes a process leading to mandatory use of IFRS by domestic issuers by 2014. The SEC justifies this initiative on the grounds that global standardization yields cost savings and an ultimate gain in comparability, facilitating the search for global opportunities by U.S. investors and making U.S. capital markets more attractive to foreign issuers.

This paper enters an objection, noting that the stakes include more than the choice of the framework for standard setting. The accounting treatments themselves are at issue, treatments that for the most part concern domestic reporting firms and …

Wrong Incentives From Financial System Fixes, F. Scott Kieff, Stephan Harber

GW Law Faculty Publications & Other Works

Few doubt the seriousness of the recent crisis afflicting the financial systems of the United States and the world. Few claim that nothing needs to be fixed. And few have missed the major debates about what types of solutions are best - often conducted at high volume, intensity, and frequency. So rather than try to add to one side or the other of the well-rehearsed arguments about each type of proposed reform, we try to refocus the analysis on some core incentives: when the basic rules of the game are changing, property rights and the rule of law are too …

Comment On Intellectual Property, Concentration And The Limits Of Antitrust In The Biotech Seed Industry, F. Scott Kieff

GW Law Faculty Publications & Other Works

This comment was filed with the Department of Justice Antitrust Division on December 31, 2009, as "Comments Regarding Agriculture and Antitrust Enforcement Issues in Our 21st Century Economy" in response to the DOJ/USDA request for public comments for the agencies' joint workshops on antitrust issues in the agricultural sector.

Regarding firm size and integration, it must be kept in mind that the agriculture industry in the U.S. has, for good reasons, moved beyond the historic, pastoral image of small family farms operating in quiet isolation, devoid of big business and modern technologies. The genetic traits that give modern seeds their …

How Not To Invent A Patent Crisis, F. Scott Kieff, Henry E. Smith

GW Law Faculty Publications & Other Works

This short essay written for a broad audience addresses the problems that are at the center of current debates in academic and policy circles about the patent system. Most current patent reform proposals are designed to give officials and courts more power to weaken or eliminate ‘‘unworthy’’ patents and take primary aim at so-called patent trolls. This essay argues that in light of the rapid, and excessive, changes that have already occurred in the courts, what patent law needs is a tweaking of existing safety valves and processes - not opening the floodgates to more discretion and uncertainty.

The Second American Revolution In The Separation Of Powers, David Fontana

GW Law Faculty Publications & Other Works

The American Constitution creates three branches of government and ensures that there will be sufficiently great amounts of ideological diversity among these branches of government. Despite this regime ensuring external heterogeneity, the American system, uniquely among the world's major constitutional democracies, rarely creates the same degree of heterogeneity at the highest levels of the Executive Branch that it does among the highest levels of the various branches of government. This Article discusses the distinctiveness of the homogeneous high-level American Executive Branch and the events that led to such a situation. At the first key moment defining the separation of powers …

The International Legality Of U.S. Military Cross-Border Operations From Afghanistan Into Pakistan, Sean D. Murphy

GW Law Faculty Publications & Other Works

To date, U.S. cross-border operations from Afghanistan into Pakistan have taken three forms: the use of Predator drones to target Al Qaeda fighters (although such drones may be launched solely from within Pakistan); the "hot pursuit" of militants who engaged in raids from Pakistan against U.S. and allied forces in Afghanistan, as well as the Afghan government; and the deployment of special operations forces into Pakistan as a means of striking at Al Qaeda. These types of cross-border operations clearly implicate the jus ad bellum, in that they entail one state projecting highly coercive military force into another state. Arguably …

Which Original Meaning Of The Constitution Matters To Justice Thomas?, Gregory E. Maggs

GW Law Faculty Publications & Other Works

This essay was published as part of a symposium hosted by the New York University Journal of Law and Liberty in March 2009. The journal citation is: Gregory E. Maggs, Which Original Meaning Matters to Justice Thomas?, 4 N.Y.U. J. L. & Liberty 494 (2009).

The essay addresses a basic question about Justice Clarence Thomas’s originalist jurisprudence. When Justice Thomas looks for the original meaning of the Constitution, does he seek (a) the meaning intended by the Framers at the Constitutional Convention in Philadelphia (“original intent”), (b) the meaning as understood by the delegates to the thirteen state ratifying conventions …

A Concise Guide To The Records Of The State Ratifying Conventions As A Source Of The Original Meaning Of The U.S. Constitution, Gregory E. Maggs

GW Law Faculty Publications & Other Works

This article was published by the University of Illinois Law Review in 2009. The citation is: Gregory E. Maggs, A Concise Guide to the Records of the State Ratifying Conventions as a Source of the Original Meaning of the U.S. Constitution, 2009 U. Ill. L. Rev. 457.

Starting in the fall of 1787, legislatures in the original thirteen states called for conventions for the purpose of deciding whether to ratify the U.S. Constitution. Many of the records of these state ratifying conventions have survived. The records reveal some of what the delegates at the state conventions said during their debates …

Citation To Legislative History: Empirical Evidence On Positive Political And Contextual Theories Of Judicial Decision Making, Michael B. Abramowicz, Emerson H. Tiller

GW Law Faculty Publications & Other Works

We present empirical evidence suggesting that political context—judicial hierarchy and judicial panel dynamics—influences an authoring judge’s use of legislative history. Specifically, we find that to the extent that political ideology matters, a district court judge’s choice of legislative history is influenced, albeit mostly, by (1) the political makeup of the overseeing circuit court and (2) the political characteristics of a judge’s panel colleagues, as well as by the circuit court as a whole. These factors matter more than the authoring judge’s own political-ideological connection to the legislators. Put differently, an authoring judge will have a greater tendency to cite legislative …

Ending The Patent Monopoly, Michael B. Abramowicz, John H. Duffy

GW Law Faculty Publications & Other Works

For nearly two centuries, an inventor applying for a U.S. patent has been required to obtain the opinion of an expert who has searched the prior art and determined that the inventor’s application meets the standards of patentability. And for nearly two centuries, those expert opinions could be obtained only from a single office run by the U.S. government. The patenting monopoly, which is almost certainly undesirable, is now being eroded. Rising global trade and technological sophistication have increased the number of patent filings in every country; government patent offices here and abroad are thus being driven to rely on …

Science, Politics, Law And The Arc Of The Clean Water Act: The Role Of Assumptions In The Adoption Of A Pollution Control Landmark, Robert L. Glicksman, Matthew R. Batzel

GW Law Faculty Publications & Other Works

This article examines the assumptions upon which Congress relied in enacting the 1972 Clean Water Act and the extent to which they have been borne out or belied as the federal and state governments have implemented their statutory responsibilities in the quest to achieve acceptably clean water. It traces the development of federal water pollution control legislation before 1972, highlighting the deficiencies that contributed to the need for a new approach in 1972. It then examines the scientific and technical, political, and legal assumptions that helped shape the 1972 Clean Water Act in an effort to determine whether the failure …

Government In Opposition, David Fontana

GW Law Faculty Publications & Other Works

In the past generation, in all countries in all parts of the world, using all different forms of constitutional government, a new form of separation of powers has emerged, what this Article calls “government in opposition.” After democratic elections are held, power to govern is granted to the winner of those elections - but substantial power to govern is also granted to the loser of those elections as well. This Article first discusses how this emerging regime of separation of powers differs from other major forms of separation of powers, and in doing so introduces a new way of understanding …

Rating The Competition Agencies: What Constitutes Good Performance?, William E. Kovacic

GW Law Faculty Publications & Other Works

Debates about the U.S. federal competition agencies have revealed a serious need to return to a basic question: what is good performance? Assessments of agency performance are important for many reasons: public perception, the ability to influence legislative actions, judicial decisions to defer, and the morale of current employees. Recent critiques on competition agencies and related commentary have demonstrated a need for better performance standards by begging two basic questions: (1) by what criteria should the performance of competition agencies be judged?; and (2) once the criteria for the agency report card have been set, how should they be applied …

Cartels As Two-Stage Mechanisms: Implications For The Analysis Of Dominant-Firm Conduct, William E. Kovacic

GW Law Faculty Publications & Other Works

Cartels often act like single dominant firms. Because there are a number of difficulties in determining market effects of single dominant firms, this article proposes that enforcement policy recognize the connection between cartels and firms engaged in monopolization. The resulting insight would be useful to determine whether or not cartel conduct should be viewed with suspicion when engaged in or by a dominant firm in a similar industry. Many cartels do not focus solely on suppressing interfirm rivalry; rather, many operate as two-stage mechanisms: the first stage consists of reaching a consensus on a plan to restrict output and curb …

The Continuing Pursuit Of Better Practices, William E. Kovacic

GW Law Faculty Publications & Other Works

Due to the approaching 100th anniversary of the statute that gave the FTC life, the FTC conducted a self-assessment to consider what it must do to continue the valuable work it performs and to identify steps it must take to do better in the future. The consultations for the project identified general characteristics of good administration practice the FTC should strive to achieve in the coming years.

Part two of the report discusses various foundations of successful FTC performance and identifies institutional features that beget good substantive outcomes over time. These foundations and features include the agency’s mission, structure, resources, …

Reasonable Provocation And Self-Defense: Recognizing The Distinction Between Act Reasonableness And Emotion Reasonableness, Cynthia Lee

GW Law Faculty Publications & Other Works

This brief essay, written for the Criminal Law Conversations project, argues that the doctrines of provocation and self-defense should recognize a distinction between act reasonableness and emotion (or belief) reasonableness. The essay proceeds in three parts. In Part I, I examine the doctrine of provocation. I start by explaining what I mean by “act reasonableness” (a finding that a reasonable person in the defendant’s shoes would have responded or acted as the defendant did) and “emotion reasonableness” (a finding that the defendant’s emotional outrage or passion was reasonable). I note that only two of the fifty states require act reasonableness …

The Color Of Our Future: The Pitfalls And Possibilities Of The Race Card In American Culture, Christopher A. Bracey

GW Law Faculty Publications & Other Works

We live in a country haunted by a past of slavery, segregation, racism, and violence. Though many systemic corrections have been attempted, a large percentage of African-Americans continue to fall behind their White counterparts in nearly every index of socio-economic well-being. The debate rages on as to why this situation exists and persists, and people on both sides of the color divide have become increasingly sensitive to perceptions and accusations of racial injustice. In his book, The Race Card: How Bluffing About Bias Makes Race Relations Worse, Richard Thompson Ford explores the phenomenon called “the race card,” wherein individuals play …