Law Commons^™

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 …

The Private Attorney-General In China: Potential And Pitfalls, Donald C. Clarke

GW Law Faculty Publications & Other Works

No abstract provided.

Emerging Policy And Practice Issues (2008), Steven L. Schooner, David J. Berteau

GW Law Faculty Publications & Other Works

This paper, presented at the West Government Contracts Year in Review Conference (covering 2008), attempts to identify the key trends and issues for 2009 in U.S. federal procurement. In large part, the paper focuses upon the challenges facing the incoming Obama administration, which faces a number of interrelated, critical, systemic challenges that pervade the acquisition landscape. Federal procurement spending has exploded in this decade. As a result - and, in addition to decisions made during the 1990's - the Government is heavily outsourced, dependent upon contractors to an extent - in degree and in type - that makes many uncomfortable. …

Book Review Of Jeremy Scahill, Blackwater: The Rise Of The Most Powerful Mercenary Army (2007/2008) And From Mercenaries To Market: The Rise And Regulation Of Private Military Companies (Simon Chesterman & Chia Lehnardt, Eds., 2008), Gregory E. Maggs

GW Law Faculty Publications & Other Works

This is a review of two books: Jeremy Scahill, Blackwater: the Rise of the Most Powerful Mercenary Army (2007/2008) and From Mercenaries to Market: the Rise and Regulation of Private Military Companies (Simon Chesterman & Chia Lehnardt, eds., 2008). Each book concerns the increasing use of contractors in military operations.

The Enduring Connections Between Law And Culture: Reviewing Lawrence Rosen, Law As Culture, And Oscar Chase, Law, Culture, And Ritual, Paul Schiff Berman

GW Law Faculty Publications & Other Works

In an era of globalization, "culture" is sometimes treated as a dirty word. For those who see the world as increasingly "flat," culture can seem to be merely a retrograde imposition of local prerogative that stands in the way of progress. Likewise, those who seek greater harmonization of human rights norms, commercial trade rules, or other legal standards may view culture as simply a monkey wrench in the machinery of global consensus and cooperation. In such debates, culture is often conceptualized as fundamentally pre-modern, something "they" cling to, but that "we" have long since jettisoned.

Two recent books - Law …

Tempering 'Buy American' In The Recovery Act - Steering Clear Of A Trade War, Steven L. Schooner, Christopher R. Yukins

GW Law Faculty Publications & Other Works

The controversial 'Buy American requirements in Section 1605 of the American Recovery and Reinvestment Act of 2009 threaten to stir protectionism leading to an outright trade war. This could be catastrophic in the current economic crisis, particularly since the Obama administration does not appear to beleive that additional domestic preferences are needed for U.S. procurement. The pending challenge for federal regulators, therefore, will be to craft a rule that contains the Recovery Act's international impact, while implementing Congress' intent. The authors suggest that the optimal approach seems to be the most simple: to fold new procurement under the Recovery Act …

The Future Of Shareholder Democracy, Lisa M. Fairfax

GW Law Faculty Publications & Other Works

This Article seeks to ascertain the impact of the Securities and Exchange Commission's rejection in 2007 of a proxy access rule, a rule that would have required corporations to include shareholder-nominated candidates on the ballot. On the one hand, the SEC's rejection appears to be a stunning blow to the shareholders' rights campaign because many shareholders' rights advocates have long considered access to the corporate ballot as the "holy grail" of their campaign for increased shareholder power. On the other hand, some corporate experts maintain that characterizing proxy access as the indispensable ingredient for sufficient shareholder influence fails to appreciate …

Test Tube Families: Why The Fertility Market Needs Legal Regulations, Naomi R. Cahn

GW Law Faculty Publications & Other Works

This book focuses on the dilemmas of applying conflicting values to egg and sperm donation, arguing that the law must develop an integrated approach to the otherwise distinct aspects of technology, families, markets, and relationships. The thesis of this book is that sperm and egg donors are not simply selling “spare” body parts but are instead providing hope to recipients, genetic identity to the resulting children, and profits within the marketplace.

This book argues that private regulation has not responded to these competing demands, and it examines the historical circumstances that brought about the current lackadaisical approach to legal regulation …

Living Originalism, Peter J. Smith, Thomas Colby

GW Law Faculty Publications & Other Works

Originalists routinely argue that originalism is the only coherent and legitimate theory of constitutional interpretation. This Article endeavors to undermine those claims by demonstrating that, despite the suggestion of originalist rhetoric, originalism is not a single, coherent, unified theory of constitutional interpretation, but is rather a disparate collection of distinct constitutional theories that share little more than a misleading reliance on a common label. Originalists generally agree only on certain very broad precepts that serve as the fundamental underlying principles of constitutional interpretation: specifically, that the “writtenness” of the Constitution necessitates a fixed constitutional meaning, and that courts that see …

The Victim-Informed Prosecution Project: A Quasi-Experimental Test Of A Collaborative Model For Cases Of Intimate Partner Violence, Laurie S. Kohn, Laura Bennett Cattaneo, Lisa A. Goodman, Deborah Epstein, Holly A. Zanville

GW Law Faculty Publications & Other Works

This Article describes the Victim-Informed Prosecution Project (VIP), a program that, over its 6-year tenure, aimed to amplify the voice of the victim in the handling of interpersonal violence (IPV) prosecutions in Washington, D.C. The Article discusses the rationale for and design and implementation of VIP and then explores whether it increased the victim’s sense of influence over the justice system response. While some VIP services, including legal advocacy and civil protection order representation, were associated with increased perceived victim voice, the program as a whole reflected more limited levels of perceived victim voice in the area of criminal prosecution. …

Risk And Culture: Is Synthetic Biology Different?, Donald Braman, Dan M. Kahan, Gregory N. Mandel

GW Law Faculty Publications & Other Works

Cultural cognition refers to the influence that individuals' values have on their perceptions of technological risk. We conducted a study to assess the cultural cognition of synthetic biology risks. Examining the attitudes of a large and diverse sample of Americans (N = 1,500), we found that hierarchical, conservative, and highly religious individuals - persons who normally are most skeptical of claims of environmental risks (including those relating to nuclear power and global warming) - are the persons most concerned about synthetic biology risks. We attribute this inversion of the normal cultural profile of risk perceptions to the seemingly anti-religious connotations …

Whose Eyes Are You Going To Believe? Scott V. Harris And The Perils Of Cognitive Illiberalism, Donald Braman, Dan M. Kahan, David A. Hoffman

GW Law Faculty Publications & Other Works

This paper accepts the unusual invitation to see for yourself issued by the Supreme Court in Scott v. Harris, 127 S. Ct. 1769 (2007). Scott held that a police officer did not violate the Fourth Amendment when he deliberately rammed his car into that of a fleeing motorist who refused to pull over for speeding and instead attempted to evade the police in a high-speed chase. The majority did not attempt to rebut the arguments of the single Justice who disagreed with its conclusion that no reasonable juror could find the fleeing driver did not pose a deadly risk to …

The Doctrine Of Equivalents In Various Patent Regimes: Does Anybody Have It Right?, Martin J. Adelman

GW Law Faculty Publications & Other Works

The doctrine of equivalents is arguably one of the most important aspects of patent law. The protection a patent confers is meaningless if its scope is determined to be so narrow that trivial changes to a device bring it out of the bounds of the patent. One of the greatest challenges courts and legislatures therefore face in patent law is to create rules for determining patent scope that maintain the protection a patent is meant to confer while still keeping the patent monopoly within reasonable bounds. Despite the general unity in patent laws among developed countries, the difficulty of this …

The European Defense Procurement Directive: An American Perspective, Christopher R. Yukins

GW Law Faculty Publications & Other Works

On August 21, the new European directive on defense and security procurement, Directive 2009/81/EC, entered into force. See, e.g.,EU Adopts New Defense and Security Procurement Directive, 6 IGC ¶ 65. Previously, most European defense procurement was considered exempt from the European procurement directives that have harmonized procurement, with greater transparency and competition, across Europe. Under the new defense directive, all but the most sensitive defense and security procurements in Europe will have to be conducted under rules consistent with the new directive.

From an American vantage point, however, it is not yet clear how the new directive will be implemented. …

Laws And Policy To Address The Link Of Family Violence, Joan Schaffner

GW Law Faculty Publications & Other Works

This chapter argues that there is a link between animal cruelty and physical abuse of humans and advocates for focusing on the link between the two behavioral patterns. I suggest that the law may capitalize upon this link to better address the violence by incorporating compassion into educational programs, enacting laws that properly indicate the seriousness of animal abuse, with stiff penalties, require cross-reporting of abuses among agencies, providing safe havens for all victims of family abuse, and more aggressively prosecuting and punishing abusers.

Teaching Criminal Law From A Critical Perspective, Angela P. Harris, Cynthia Lee

GW Law Faculty Publications & Other Works

Recent turmoil in the marketplace has led to a massive attorney layoffs and the folding of several major law firms. Current prospective law students are fast becoming aware of the fact that having a law degree is no guarantee that one will be employed after graduation. Many parents, who have seen their retirement accounts shrink over the last three years can no longer afford to send their kids to law schools that charge $40,000 or more per year in tuition. This state of events in turn has prompted law students to take a hard look at proposals for curriculum reform …

Form, Function, And The Powers Of International Courts, Dinah L. Shelton

GW Law Faculty Publications & Other Works

At the end of the nineteenth century, the international community began creating its first tribunals with the establishment of the Permanent Court of Arbitration. Since then, numerous courts and tribunals have been created on the international stage. This Article examines the interplay of form, function, and the powers exercised by international courts. It first considers the functions or attributes of any institution that carries the name "court" or "tribunal" and reflects upon whether there are powers that must be deemed inherent in such an institution to allow it to fulfill the judicial function, irrespective of limitations placed on the court's …

Clearing The Smoke From Philip Morris V. Williams: The Past, Present, And Future Of Punitive Damages, Thomas Colby

GW Law Faculty Publications & Other Works

In Philip Morris v. Williams, the Supreme Court held that the Constitution does not permit the imposition of punitive damages to punish a defendant for harm caused to third parties. This Article critiques the reasoning, but seeks ultimately to vindicate the result, of this landmark decision. It argues that, although the Court's procedural due process analysis does not stand up to scrutiny, punitive damages as punishment for third-party harm do indeed violate procedural due process, but for reasons far more profound than those offered by the Court. To reach that conclusion, the Article confronts the most basic and fundamental questions …

By Any Means Necessary? The Fcc's Implementation Of Net Neutrality, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

Since the Federal Communications Commission (FCC) removed common carriage obligations from Internet cable broadband providers in 2002, free speech and open access advocates have been lamenting the FCC’s market-oriented, laissez-faire approach and have called for net neutrality regulation to remedy the problems brought about by an unregulated market for Internet communications. Such regulation would reimpose some of the common carriage/non-discrimination obligations historically imposed on telecommunications providers and would prohibit broadband providers from censoring, blocking, or otherwise discriminating against any legal content or applications that users sought to communicate via broadband pipes. In August 2008, however, the FCC reversed its laissez-faire …

The End Of Corporate Law, Dalia Tsuk Mitchell

GW Law Faculty Publications & Other Works

This article examines how corporate law, specifically the rules applicable to the allocation of power among directors, executives, and shareholders, has become ineffective as a means of regulating corporate power. I argue that in the course of the twentieth century corporate law has been used first to legitimate corporate power and then to exempt those exercising it from liability. The article focuses on jurists’ responses to the growth of the publicly held corporation in the early twentieth century, their midcentury attempts to create corporate democracy, and their ultimate turn to markets as the means of regulating corporate power.