Law Commons^™

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.

Status Bound: The Twentieth Century Evolution Of Directors’ Liability, Dalia Tsuk Mitchell

GW Law Faculty Publications & Other Works

This article examines scholarly debates and judicial decisions, ranging from the turn of the twentieth century to its end, about the appropriate status of directors and the standard of liability that each status carried—specifically in situations involving allegations of breaches of the duty of care. I argue that during the course of the twentieth century, jurists moved from viewing directors as trustees, to describing directors as representatives of the shareholders, to holding that directors were mere agents of shareholders who typically served as passive principals. Each of these descriptions corresponded to a particular understanding of the role of corporations in …

Right To Bear Arms, Robert J. Cottrol

GW Law Faculty Publications & Other Works

This article examines the development of the Second Amendment debate starting from English law, throughout America's history, and concluding with the Supreme Court's decision in Heller. Robert Cottrol contextualizes the development of the two main interpretations that have emerged, the individual rights view and the collective-rights view. Cottrol also presents the interpretation of the Second Amendment as concerning Black populations in the United States and then incoming immigrant populations in the early 1900s. This article then explores the legal and judicial responses to the Second Amendment debate, noting the relative silence of the Supreme Court, except for certain cases. Cottrol …

An Examination Of Section 504 In Practice: Dark Days For Student Rights, Ann S. Maydosz

Communication Disorders & Special Education Theses & Dissertations

Section 504 of the Rehabilitation Act of 1973 is a broadly worded statement that addresses discrimination in schools and other settings. Enacted at about the same time as the Individuals with Disabilities Education Act (IDEA), Section 504 has been used sparingly in elementary and secondary schools. Section 504 presents an opportunity to redress educational inequities for struggling students because it can provide support for students with disabilities and impairments not covered by IDEA. However, due to vague wording, unclear case law, and limited training for school divisions and practitioners, schools are unsure how to implement and to comply with Section …

Mediation And The Myth Of Universality, Nadja Alexander

Research Collection Yong Pung How School Of Law

In his essay entitled ‘Mediation – Pfade zum Frieden’, Professor Montada has made an important contribution to the mediation literature. He questions the universality of the standard mediation model that appears to be sweeping the world with enormous zeal and in doing so puts forward theories and principles to substantiate his view. In this article, Nadja Alexander analyses what the author has to say about the scope and potential for mediation.

Totem, Taboo And The Concept Of Law: Myth In Hart And Freud, Jeanne L. Schroeder

Articles

The article critically examines H.L.A. Hart’s The Concept of Law, arguing that its foundational narrative of legal evolution relies on a mythological anthropology. Hart’s account of the transition from primitive to modern legal systems through secondary rules is revealed to be a myth that, while not historically accurate, conveys deeper truths about the nature of law and modernity. The analysis draws parallels between Hart’s mythography and Freud’s psychoanalytic theories, particularly in Totem and Taboo and Moses and Monotheism, to explore how both thinkers conceptualize the origins of law as a shift from direct force to symbolic authority. The article contends …

Arsenic And Old Chemistry: Images Of Mad Alchemists, Experts Attacking Experts, And The Crisis In Forensic Science, David S. Caudill

Faculty Publications

Drawing on research into the use of experts in early 19th-century criminal trials, the image of mad alchemists in popular culture representations of science, and the distinction between empirical and contingent “interpretive repertoires” in the discourse of scientific controversies, this article explores the controversy over arsenic-detection technologies prior to the Marsh test. In addition to noting the predictable criticism of incompetent expertise in the service of law, this article highlights implied accusations of hubris and amorality on the part of over-confident experts, both in the early 19th-century and in today's crisis of forensic science.

From The Chair, Lela P. Love

Articles

No abstract provided.

Legal Aspects Of Prior Informed Consent On Access To Genetic Resources, Kuei-Jung Ni

Vanderbilt Journal of Transnational Law

Since the Convention on Biological Diversity (CBD) has been in force, national implementation of the access to and benefit-sharing (ABS) requirement on genetic resources has been flourishing. A requirement of prior informed consent (PIC) by the people controlling access to genetic resources constitutes a major instrument to deter illegal bioprospecting and to ensure fair access to genetic resources.

This Article aims to analyze the continuing global lawmaking on PIC and to conduct a comparative study on how genetically rich nations implement the PIC requirement with a view to examining whether the genuine mandate of the CBD has been fulfilled.

This …

Advertising Obesity: Can The U.S. Follow The Lead Of The Uk In Limiting Television Marketing Of Unhealthy Foods To Children?, David Darwin

Vanderbilt Journal of Transnational Law

Childhood obesity has tripled in the U.S. since the 1970s, and television advertisement of unhealthy foods has been linked to the unhealthy eating habits of children. The United Kingdom, facing a similar problem, promulgated regulations in 2007 banning the advertisement of foods high in fat, sodium, and sugar during programming directed at children below age 16.

In the U.S., industry representatives, public policy advocates, and government officials are debating whether to rely on self-regulation efforts or to implement government-established guidelines. Industry representatives argue that government guidelines would do little to solve the childhood obesity problem and that the UK regulations …

Beyond Economics: The U.S. Recognition Of International Financial Reporting Standards As An International Subdelegation Of The Sec's Rulemaking Authority, Jacob L. Barney

Vanderbilt Journal of Transnational Law

A final rule promulgated by the Securities and Exchange Commission (SEC) in 2008 allowing foreign private securities issuers to prepare SEC-required financial disclosures under international financial reporting standards (IFRS) as promulgated by the International Accounting Standards Board (LASB) is a highly significant event for U.S. and global capital markets. However, surprisingly few questions have been asked regarding the SEC's legal authority to take such an unprecedented step.

This Note assesses the recent SEC action with regard to IASB from two perspectives--traditional administrative law, with particular emphasis on delegations by government entities to private parties, and international law, with particular emphasis …

Strengthening International Regulation Through Transnational New Governance: Overcoming The Orchestration Deficit, Kenneth W. Abbott, Duncan Snidal

Vanderbilt Journal of Transnational Law

A new kind of international regulatory system is spontaneously arising out of the failure of international "Old Governance" (i.e., treaties and intergovernmental organizations) to adequately regulate international business. Nongovernmental organizations, business firms, and other actors, singly and in novel combinations, are creating innovative institutions to apply transnational norms to business. These institutions are predominantly private and operate through voluntary standards. The Authors depict the diversity of these new regulatory institutions on the "Governance Triangle," according to the roles of different actors in their operations. To analyze this complex system, we adapt the domestic "New Governance" model of regulation to the …

Investing In Culture: Underwater Cultural Heritage And International Investment Law, Valentina S. Vadi

Vanderbilt Journal of Transnational Law

Underwater cultural heritage (UCH), which includes evidence of past cultures preserved in shipwrecks, enables the relevant epistemic communities to open a window to the unknown past and enrich their understanding of history. Recent technologies have allowed the recovery of more and more shipwrecks by private actors who often retrieve materials from shipwrecks to sell them. Not all salvors conduct proper scientific inquiry, conserve artifacts, and publish the results of the research; more often, much of the salvaged material is sold and its cultural capital dispersed. Because states rarely have adequate funds to recover ancient shipwrecks and manage this material, however, …

Honesty Is The Best Policy: A Case For The Limitation Of Deceptive Police Interrogation Practices In The United States, Irina Khasin

Vanderbilt Journal of Transnational Law

In the United States, police officers regularly employ deceptive interrogation tactics to extract confession evidence from suspects. Despite widespread recognition of the harm caused by police deception, courts in the United States have consistently condoned the practice, refusing to exclude confessions obtained through manipulative and deceitful means. The British Parliament has recognized that deceptive police practices yield false confessions and, thus, wrongful convictions. The Police and Criminal Evidence Act of 1984 addresses this concern by establishing clear rules for the police to follow and by empowering courts to enforce those rules. In evaluating the need for reform in American police …

Sanctions, Countermeasures, And The Iranian Nuclear Issue, N. J. Calamita

Vanderbilt Journal of Transnational Law

The international community's response to Iran's nuclear development program highlights the sometimes complex legal relationship between the UN system of collective security and the rights of states to take unilateral countermeasures under the law of state responsibility. It also raises a number of important questions about (a) the discretion afforded to states in the interpretation and implementation of Security Council resolutions, (b) the availability of countermeasures for the violation of multilateral obligations, and (c) the exclusivity of the Chapter VII framework for collective security.

This Article argues that, while the Security Council's Iran sanctions resolutions do not grant discretionary authority …