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2010

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Articles 10831 - 10860 of 11497

Full-Text Articles in Law

Probability, Individualization, And Uniqueness In Forensic Science Evidence: Listening To The Academies, David H. Kaye Jan 2010

Probability, Individualization, And Uniqueness In Forensic Science Evidence: Listening To The Academies, David H. Kaye

Faculty Scholarship

Day in and day out, criminalists testify to positive, uniquely specific identifications of fingerprints, bullets, handwriting, and other trace evidence. A committee of the National Academy of Sciences, building on the writing of academic commentators, has called for sweeping changes in the presentation and production of evidence of identification. These include some form of circumscribed and standardized testimony. But the Academy report is short on the specifics of the testimony that would be legally and professionally allowable. This essay outlines possible types of testimony that might harmonize the testimony of criminalists with the actual state of forensic science. It does …

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Gina's Genotypes, David H. Kaye Jan 2010

Gina's Genotypes, David H. Kaye

Faculty Scholarship

In August 2009, the Board of Trustees of the University of Akron added to the university's employment policy the following proviso: "any applicant may be asked to submit fingerprints or DNA sample for purpose of a federal criminal background check." Although the federal government does not do background checks with DNA, the policy is significant because it highlights a largely unexplored feature of the Genetic Information Nondiscrimination Act of 2008 (GINA). GINA generally prohibits employers from asking for "genetic information." The faculty senate and outside commentators have declared that the Akron policy is "of doubtful legality" because it "appears to …

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Transnational Mass Claim Processes (Tmcps) In International Law And Practice, Arturo J. Carrillo, Jason Scott Palmer Jan 2010

Transnational Mass Claim Processes (Tmcps) In International Law And Practice, Arturo J. Carrillo, Jason Scott Palmer

GW Law Faculty Publications & Other Works

This article recognizes a growing overlap in the literature between international mass claims processes (“IMCPS”) and transitional justice claims processes (“TJCPs”), i.e. domestic reparations programs adopted by successor governments in the wake of mass atrocity. This convergence is reflected in a number of recent publications in both fields that promote the comparative analysis of IMCPs and TJCPs, which in turn, leads to the conclusion that the two processes share a number of analogous characteristics. Commentators tend to view these ostensibly shared traits as a natural source of “best practices” or “lessons” transferable between mass claims procedures in the international and …

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Same-Sex Family Equality And Religious Freedom, Ira C. Lupu, Robert W. Tuttle Jan 2010

Same-Sex Family Equality And Religious Freedom, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

In the spring of 2009, the legislatures of Connecticut, Maine, New Hampshire, and Vermont became the first in the U.S. to enact laws recognizing the legality of same-sex civil marriage. The legislation in all four states included provisions designed to protect the freedom of clergy and religious communities that do not want to recognize same-sex marriage. The legislation in several of the states also included provisions designed to insulate religious organizations from obligations that might arise from the legalization of same-sex marriage – for example, with respect to adoption or the provision of housing to married couples. Despite academic and …

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Reforming Financial Regulation To Address The Too-Big-To-Fail Problem, Arthur E. Wilmarth Jr. Jan 2010

Reforming Financial Regulation To Address The Too-Big-To-Fail Problem, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

The ongoing financial crisis has revealed fundamental weaknesses in the regulatory systems of the United States, the United Kingdom and other European nations. In particular, publicly-funded bailouts of major banks have confirmed that “too big to fail” (TBTF) subsidies distort economic incentives and encourage excessive risk-taking by large, complex financial institutions (LCFIs). Accordingly, the primary goals of regulatory reform must be (i) to eliminate, or at least greatly reduce, TBTF subsidies and (ii) to force LCFIs to internalize the risks and costs of their activities.

After surveying the causes and consequences of the financial crisis, this article proposes five regulatory …

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Copyright And The World's Most Popular Song, Robert Brauneis Jan 2010

Copyright And The World's Most Popular Song, Robert Brauneis

GW Law Faculty Publications & Other Works

"Happy Birthday to You" is the best-known and most frequently sung song in the world. Many - including Justice Breyer in his dissent in Eldred v. Ashcroft - have portrayed it as an unoriginal work that is hardly worthy of copyright protection, but nonetheless remains under copyright. Yet close historical scrutiny reveals both of those assumptions to be false. The song that became "Happy Birthday to You," originally written with different lyrics as "Good Morning to All," was the product of intense creative labor, undertaken with copyright protection in mind. However, it is almost certainly no longer under copyright, due …

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A Core Of Agreement, Donald Braman, Dan M. Kahan, David Hoffman Jan 2010

A Core Of Agreement, Donald Braman, Dan M. Kahan, David Hoffman

GW Law Faculty Publications & Other Works

In this short comment, we respond to papers by Robinson, Kurzban, and Jones (RKJ) and by Darley, who replied to our paper, Punishment Naturalism. We align ourselves wholeheartedly with Darley’s argument that intuitions of criminal wrongdoing, while mediated by cognitive mechanisms that are largely universal, consist in evaluations that vary significantly across cultural groups. RKJ defend their finding of “universal” intuitions of “core” of criminal wrongdoing. They acknowledge, however, that their method for identifying the core excludes by design factors that predictably generate cultural variance in what behavior counts as murder, rape, theft and other “core” offenses. On this basis, …

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Healing Healthcare Through Tax Reform, Eleanor Marie Brown Jan 2010

Healing Healthcare Through Tax Reform, Eleanor Marie Brown

GW Law Faculty Publications & Other Works

An economic crisis, sky-rocketing healthcare costs, and millions of Americans without health insurance combine to bring to the public square not only the possibility of a meaningful debate but the political perfect storm that might unearth entrenched partisans and bring about meaningful healthcare reform. The current taxation of expenditures for healthcare is a complex, unjust, uneconomical, and inefficient system. This article seeks to refute revisionist historians who might argue that healthcare in the workplace had no meaningful presence until World War II and to highlight the reasons for the development of employer-provided healthcare; to explain the fundamental inequities wrought by …

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Some Realism About Punishment Naturalism, Donald Braman, Dan M. Kahan, David A. Hoffman Jan 2010

Some Realism About Punishment Naturalism, Donald Braman, Dan M. Kahan, David A. Hoffman

GW Law Faculty Publications & Other Works

In this paper we critique the increasingly prominent claims of punishment naturalism – the notion that highly nuanced intuitions about most forms of crime and punishment are broadly shared, and that this agreement is best explained by a particular form of evolutionary psychology. While the core claims of punishment naturalism are deeply attractive and intuitive, they are contradicted by a broad array of studies and depend on a number of logical missteps. The most obvious shortcoming of punishment naturalism is that it ignores empirical research demonstrating deep disagreements over what constitutes a wrongful act and just how wrongful it should …

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Geographic Trademarks And The Protection Of Competitor Communication, Robert Brauneis Jan 2010

Geographic Trademarks And The Protection Of Competitor Communication, Robert Brauneis

GW Law Faculty Publications & Other Works

Over the last 25 years, brand names that incorporate geographic terms have become easier to register immediately at the U.S. Patent and Trademark Office, without having to demonstrate acquired distinctiveness or "secondary meaning." This is largely due to two developments. The first is the rise of a subjective "goods-place association" test, under which an examiner must show that consumers would understand the brand name as claiming geographic origin before refusing registration. The second is the Federal Circuit's interpretation of the NAFTA Implementation Act as requiring a showing of materiality before refusing to register a trademark as primarily geographically deceptively misdescriptive. …

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Medicare Meets Mephistopheles: Health Care, Government Spending, And Economic Prosperity, Neil H. Buchanan Jan 2010

Medicare Meets Mephistopheles: Health Care, Government Spending, And Economic Prosperity, Neil H. Buchanan

GW Law Faculty Publications & Other Works

This essay is an edited version of my remarks during the first panel of the Mississippi College Law Review’s symposium on health care reform, which was held on February 26, 2010, in Jackson, Mississippi. The essay integrates my prepared comments with my responses to comments and questions during the discussion period. I have also added some further thoughts on several of the issues that are relevant to the subject matter, especially in light of the subsequent passage of a major federal health reform bill. These remarks are necessarily brief, and they therefore can include only a hint of the issues …

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The Effects Of The Fiscal Deficit On The Composition Of Us Gdp: An Analysis Of Disaggregated Data, Neil H. Buchanan Jan 2010

The Effects Of The Fiscal Deficit On The Composition Of Us Gdp: An Analysis Of Disaggregated Data, Neil H. Buchanan

GW Law Faculty Publications & Other Works

The impact of the federal budget deficit on the economy is a source of continuing concern, both among macroeconomists and – even more urgently – among political decision makers. The old Keynesian consensus that budget deficits were generally good for the economy, in the sense of making it more prosperous (or, at least, in bringing it out of recessions), has been pushed aside by the fear that the apparently-large deficits that began in the 1980s in the United State have damaged the economy and are impoverishing future generations of Americans. The continuing debate over whether fiscal deficits make us better …

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Balancing Rights And Responsibilities: Human Rights Jurisprudence On Regulating The Content Of Speech, Dinah L. Shelton Jan 2010

Balancing Rights And Responsibilities: Human Rights Jurisprudence On Regulating The Content Of Speech, Dinah L. Shelton

GW Law Faculty Publications & Other Works

The right to freedom of expression is one of the essential attributes of a democratic society, linked to transparency in government, public participation in decision-making, and each person’s individual self-determination. This paper analyzes the key provisions of human rights instruments that concern the right to freedom of expression. The paper also evaluates the scope of freedom of expression rights by considering U.N. studies and reports and the jurisprudence of human rights bodies. The paper concludes that the law cannot fully resolve the tensions between the free exercise of expression and the protection of other’s rights, but the legal guarantees and …

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International Decision: Tatar C. Roumanie, App. No. 67021/01...European Court Of Human Rights, Jan. 27, 2009, Dinah L. Shelton Jan 2010

International Decision: Tatar C. Roumanie, App. No. 67021/01...European Court Of Human Rights, Jan. 27, 2009, Dinah L. Shelton

GW Law Faculty Publications & Other Works

This case note examines Tatar c. Roumanie, App. No. 6702 1/01, at http://www.echr.coe.int., European Court of Human Rights, January 27, 2009. In Tatar c. Roumanie, the applicants claimed that the Romanian authorities’ failure to halt the practice of using sodium cyanide constituted a breach of Article 2 of the European Convention on Human Rights and Fundamental Freedoms. On these facts, the European Court reiterated earlier holdings that pollution can interfere with a person's private and family life by harming his or her well-being. Accordingly, the Court held that the operating conditions laid down by the Romanian authorities had been inadequate …

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Eleventh Annual Grotius Lecture Response: Commentary On Achim Steiner's 2009 Grotius Lecture, Dinah L. Shelton Jan 2010

Eleventh Annual Grotius Lecture Response: Commentary On Achim Steiner's 2009 Grotius Lecture, Dinah L. Shelton

GW Law Faculty Publications & Other Works

This commentary discusses the impact of the 2009 Grotius Lecture delivered by Achim Steiner, Executive Director of the United Nations Environmental Program (“UNEP”). The commentary elaborates on a fundamental lesson of the lecture: law can be a conduit for transformative economic change. The commentary emphasizes the need for international entities such as UNEP to address global environmental crises that result from pollution largely generated by industrial countries. The commentary encourages leaders to consider these environmental challenges as possible threats to human rights.

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Equitable Utilization Of The Atmosphere: A Rights-Based Approach To Climate Change, Dinah L. Shelton Jan 2010

Equitable Utilization Of The Atmosphere: A Rights-Based Approach To Climate Change, Dinah L. Shelton

GW Law Faculty Publications & Other Works

This paper advocates for a rights-based approach to climate change. I argue that the government of a state may, and arguably, has the duty to assert and defend the rights of its inhabitants, rather than remaining passive and ultimately defending itself for alleged rights-violating acts and omissions. The premise underlying this approach is that governments exist for the purpose of protecting the sovereign rights of the state and the human rights of their inhabitants, past and future. First, the paper examines the rights of permanent sovereignty over natural rights. Second, it considers interstate cases on trans-frontier pollution, including the landmark …

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Comparative Originalism, David Fontana Jan 2010

Comparative Originalism, David Fontana

GW Law Faculty Publications & Other Works

Jamal Greene has written an important paper examining originalism in other countries. This short response argues that comparing the United States with Canada and Australia (the countries Professor Greene mostly examines) involves comparing quite different countries, because the Canadian and Australian constitutions reorganized preexisting institutions, whereas the United States had more of a nation-creating, revolutionary constitution. Other countries that arose out of more revolutionary events, such as certain post-colonial African and Latin American nations, have also tended to feature originalist arguments. When the nation predates the creation of a constitution, key cultural and political understandings also predate the constitution, thereby …

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Gender, Masculinities And Transition In Conflicted Societies, Naomi R. Cahn, Fionnuala D. Ni Aolain Jan 2010

Gender, Masculinities And Transition In Conflicted Societies, Naomi R. Cahn, Fionnuala D. Ni Aolain

GW Law Faculty Publications & Other Works

This article uses a gender lens to explore how conflict affects men and women differently. It examines issues related to the emergence of certain kinds of “hyper” masculinity in situations of conflict and how such masculinities continue to function in subsequent peace-building attempts. The article argues that a failure to account for and be cognizant of these specific masculinities has a significant effect for women in particular, and, more generally, on the success of the conflict transition process. Finally, we show how using a gender lens could make a difference by considering the specific example of the impact of violent …

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Embryo Fundamentalism, Naomi R. Cahn, June Caborne Jan 2010

Embryo Fundamentalism, Naomi R. Cahn, June Caborne

GW Law Faculty Publications & Other Works

The battle for the future of assisted reproduction technologies (ART) has been joined. The tacit compromise underlying assisted reproduction - no laws are passed that even tangentially sanction embryo destruction and no laws are passed that intrude on the profitability of fertility treatments - may be coming to an end. As use of ART has increased, so have calls for supervision and oversight. In the wake of "Octomom" Nadya Suleman's use of in vitro fertilization (IVF) to give birth to octuplets, the calls to regulate assisted reproduction have become even more pressing. At the same time, religious communities ambivalent about …

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Returning Home: Women In Post-Conflict Societies, Naomi R. Cahn, Dina Francesca Haynes, Fionnuala D. Ni Aolain Jan 2010

Returning Home: Women In Post-Conflict Societies, Naomi R. Cahn, Dina Francesca Haynes, Fionnuala D. Ni Aolain

GW Law Faculty Publications & Other Works

This paper explores the situation of women returning to their homes and communities after their countries have experienced major conflicts. In that context, it assesses the range of barriers and challenges that women face and offers some thinking to addresses and remedy these complex issues. As countries face the transition process, they can begin to measure the conflict’s impact on the population and the civil infrastructure. Not only have people been displaced from their homes, but, typically, health clinics, schools, roads, businesses, and markets have deteriorated substantially. While the focus is on humanitarian aid in the midst of and during …

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Transnational Mass Claim Processes (Tmcps) In International Law And Practice, Arturo Carrillo, Jason Palmer Jan 2010

Transnational Mass Claim Processes (Tmcps) In International Law And Practice, Arturo Carrillo, Jason Palmer

GW Law Faculty Publications & Other Works

This article recognizes a growing overlap in the literature between international mass claims processes (“IMCPS”) and transitional justice claims processes (“TJCPs”), i.e. domestic reparations programs adopted by successor governments in the wake of mass atrocity. This convergence is reflected in a number of recent publications in both fields that promote the comparative analysis of IMCPs and TJCPs, which in turn, leads to the conclusion that the two processes share a number of analogous characteristics. Commentators tend to view these ostensibly shared traits as a natural source of “best practices” or “lessons” transferable between mass claims procedures in the international and …

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Getting Real About Abuse And Alienation: A Critique Of Drozd And Olesen's Decision Tree, Joan S. Meier Jan 2010

Getting Real About Abuse And Alienation: A Critique Of Drozd And Olesen's Decision Tree, Joan S. Meier

GW Law Faculty Publications & Other Works

Specialists in abuse and alienation have long taken opposing positions on the legitimacy of the concept of alienation in custody cases where abuse is alleged. One increasingly popular response that appears to carve a middle path is acknowledge that both alienation and abuse may co-exist, and to focus on "hybrid" cases, i.e., those in which there are cross-allegations of abuse and alienation. This article discusses and critiques, from the perspective of an expert on abuse, one of the earliest and most significant approaches to the hybrid case: Drozd and Olesen’s "Decision Tree." The author concludes that, while the Decision Tree …

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What Do The Studies Of Judicial Review Of Agency Actions Mean?, Richard J. Pierce Jr Jan 2010

What Do The Studies Of Judicial Review Of Agency Actions Mean?, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

In this essay, I discuss the meaning of ten empirical studies of judicial review of agency actions that have been published over the last twenty years. The most robust findings are: a court’s choice among the six deference doctrines courts now use has no effect on the outcome of cases; the ideological preferences of judges and Justices explain about 30% of their votes; members of politically mixed panels indulge their ideological preferences about half as often as do members of politically homogenous panels; and, the D.C. Circuit is consistently less deferential than other circuits. I conclude by endorsing David Zaring’s …

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The Past, Present, And Future Of Energy Regulation, Richard J. Pierce Jr Jan 2010

The Past, Present, And Future Of Energy Regulation, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

This essay is a contribution to a symposium at University of Utah. It begins with a summary of the history of energy regulation from 1960 until 2011. It then makes three arguments. First, the essay argues that the US should abandon pursuit of the goal of energy independence and pursue exclusively the goal of global warming mitigation. Second, it argues that the US should replace its present reliance on expensive and ineffective subsidies and mandates to mitigate global warming with a single mechanism to attain that goal – a large carbon tax. Third, the essay recognizes that, while a carbon …

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Fourth Amendment Pragmatism, Daniel J. Solove Jan 2010

Fourth Amendment Pragmatism, Daniel J. Solove

GW Law Faculty Publications & Other Works

In this essay, Professor Solove argues that the Fourth Amendment reasonable expectation of privacy test should be abandoned. Instead of engaging in a fruitless game of determining whether privacy is invaded, the United States Supreme Court should adopt a more pragmatic approach to the Fourth Amendment and directly face the issue of how to regulate government information gathering. There are two central questions in Fourth Amendment analysis: (1) The Coverage Question - Does the Fourth Amendment provide protection against a particular form of government information gathering? and (2) The Procedure Question - How should the Fourth Amendment regulate this form …

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The Eminence Of Imminence And The Myopia Of Markets, Teneille R. Brown Jan 2010

The Eminence Of Imminence And The Myopia Of Markets, Teneille R. Brown

Utah Law Faculty Scholarship

This article questions the privileging of disaster, or imminent threat, over more distant threats to public health. In many cases, this privileging makes sense as we do not have time to evaluate the threat under traditional frameworks. But in some cases, we privilege disaster in ways that may be ethically and legally unsound. Here I am interested in a particular type of public health threat – the negative consequences that stem from climate change. In this article I view the climate change discussion through the lens of distributive justice. I analyze the ethical as well as legal arguments for encouraging …

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Through A Scanner Darkly: Functional Neuroimaging As Evidence Of A Criminal Defendant's Past Mental States, Teneille R. Brown, Emily R.D. Murphy Jan 2010

Through A Scanner Darkly: Functional Neuroimaging As Evidence Of A Criminal Defendant's Past Mental States, Teneille R. Brown, Emily R.D. Murphy

Utah Law Faculty Scholarship

As with phrenology and the polygraph, we are again confronted with a device that the media claims to be capable of reading our minds. This new device is functional magnetic resonance imaging ("fMRI"), and it is currently being introduced to negate a criminal defendant's mens rea, such as the specific intent to kill. In this paper we will demonstrate that functional brain images should not currently be admitted into courts for this purpose. We will do so by walking through each step of the imaging methodology in plain terms, making it clear why the brain images are minimally probative when …

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Protecting Crime Victims In Federal Appellate Courts: The Need To Broadly Construe The Crime Victims' Rights Act's Mandamus Provisions, Paul Cassell Jan 2010

Protecting Crime Victims In Federal Appellate Courts: The Need To Broadly Construe The Crime Victims' Rights Act's Mandamus Provisions, Paul Cassell

Utah Law Faculty Scholarship

In 2004, Congress passed the Crime Victims’ Rights Act to dramatically reshape the federal criminal justice system and ensure that crime victims are treated fairly in the criminal process. An important feature of the CVRA is its provisions allowing victims to enforce their rights not only in trial courts, but also in appellate courts. Among the enforcement provisions is one guaranteeing a crime victim expedited access to appellate review. The CVRA provides that if the district court denies any relief sought by a crime victim, the victim “may petition the court of appeals for a writ of mandamus. . . …

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From Words To Worlds: Exploring Constitutional Functionality By Beau Breslin, Robert L. Tsai Jan 2010

From Words To Worlds: Exploring Constitutional Functionality By Beau Breslin, Robert L. Tsai

Faculty Scholarship

This is a review of Beau Breslin's book, "From Words to Worlds: Exploring Constitutional Functionality" (Johns Hopkins, 2009). As an antidote to what he believes to be scholarly marginalization of the "unique" aspects of a written constitution, Breslin focuses attention on seven functions of such a legal text: transforming existing orders, conveying collective aspirations, designing institutions, mediating conflict, recognizing claims of subnational communities, empowering social actors, and constraining governmental authority. This review briefly critiques Breslin's functional approach and discusses two of the more pressing goals of modern constitutionalism: managing social conflict and preserving cultural heritage.

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Review Of Law At The Vanishing Point By Aaron Fichtelberg, Robert D. Sloane Jan 2010

Review Of Law At The Vanishing Point By Aaron Fichtelberg, Robert D. Sloane

Faculty Scholarship

This is a largely critical review of Professor Aaron Fichtelberg’s philosophical analysis of international law. The centerpiece of the book’s affirmative agenda, a “non-reductionist” definition of international law that purports to elide various forms of international law skepticism, strikes the reviewer as circular, misguided in general, and, in its application to substantive international legal issues, difficult to distinguish from a rote form of legal positivism. Law at the Vanishing Point’s avowed empirical methodology and critical agenda, while largely unobjectionable, offer little that has not been said before, often with equal if not greater force. I commend the author’s effort to …

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