Open Access. Powered by Scholars. Published by Universities.®

Law Commons™

Open Access. Powered by Scholars. Published by Universities.®

2012

Discipline
Institution
Keyword
Publication
Publication Type
File Type

Articles 12691 - 12720 of 13461

Full-Text Articles in Law

International Trade And Investment Law And Carbon Management Technologies, Steve Charnovitz Jan 2012

International Trade And Investment Law And Carbon Management Technologies, Steve Charnovitz

GW Law Faculty Publications & Other Works

Reducing emissions of greenhouse gases will require the development of carbon management technologies that are not currently available or that are not currently cost-effective. While market mechanisms such as carbon pricing must play a central role in stimulating the development of these technologies, governmental policy aimed at fostering carbon management technologies and lowering their costs must also play a part. Both types of policies will form part of an optimal greenhouse gas control portfolio. This article develops a framework of international trade and investment law insofar as they may affect carbon management technologies. While it is commonly perceived that international …

Go to article

Kiobel, Subject Matter Jurisdiction, And The Alien Tort Statute, Bradford R. Clark Jan 2012

Kiobel, Subject Matter Jurisdiction, And The Alien Tort Statute, Bradford R. Clark

GW Law Faculty Publications & Other Works

The Supreme Court is currently reviewing the Second Circuit’s decision in Kiobel v. Royal Dutch Petroleum, a case holding that federal courts lack jurisdiction under the Alien Tort Statute (“ATS”) over claims against corporations. Although the parties have focused on issues of corporate liability under the ATS, there is a logically antecedent question of subject matter jurisdiction that the Court should decide before considering corporate liability. All of the parties in Kiobel — whether corporate or individual — are aliens. Understood in its full legal and historical context, the ATS was a jurisdictional statute that did not apply to suits …

Go to article

The Law Of Nations As Constitutional Law, Bradford R. Clark, Anthony J. Bellia Jr. Jan 2012

The Law Of Nations As Constitutional Law, Bradford R. Clark, Anthony J. Bellia Jr.

GW Law Faculty Publications & Other Works

Courts and scholars continue to debate the status of customary international law in U.S. courts, but have paid insufficient attention to the role that such law plays in interpreting and upholding several specific provisions of the Constitution. The modern position argues that courts should treat customary international law as federal common law. The revisionist position contends that customary international law applies only to the extent that positive federal or state law has adopted it. Neither approach adequately takes account of the Constitution’s allocation of powers to the federal political branches in Articles I and II or the effect of these …

Go to article

The Benefits To Be Derived From Post-Negotiation Assessments, Charles B. Craver Jan 2012

The Benefits To Be Derived From Post-Negotiation Assessments, Charles B. Craver

GW Law Faculty Publications & Other Works

Lawyers negotiate regularly, but few ever take the time when they have completed such critical interactions to ask themselves how they did. If they hope to improve their bargaining capabilities, they should take a few minutes after their more significant interactions to ask themselves some basic questions. Were they thoroughly prepared, and did they establish elevated but realistic aspirations? How did the negotiation stages develop? What bargaining techniques did they employ, and how did they counteract the tactics used by the other side? What did they do that they wished they had not done? What did they not do that …

Go to article

The Right To Strike And Its Possible Conflict With Other Fundamental Rights Of The People In The United States, Charles B. Craver Jan 2012

The Right To Strike And Its Possible Conflict With Other Fundamental Rights Of The People In The United States, Charles B. Craver

GW Law Faculty Publications & Other Works

Although the right to strike is not constitutionally protected in the U.S., it is protected for private sector workers under Section 7 of the National Labor Relations Act as concerted activity for mutual aid and protection. Federal employees and most state and local government employees do not have the right to strike, but several states permit work stoppages by non-essential personnel. Most collective bargaining agreements contain no-strike clauses forbidding work stoppages during the term of such contracts. Sympathy strikes by private sector workers supporting strikes by employees bargaining over new contract terms are usually protected as concerted activity for mutual …

Go to article

Outsourcing Covert Activities, Laura T. Dickinson Jan 2012

Outsourcing Covert Activities, Laura T. Dickinson

GW Law Faculty Publications & Other Works

Over the past decade, the United States has radically shifted the way it projects its power overseas. Instead of using full-time employees of foreign affairs agencies to implement its policies, the government now deploys a wide range of contractors and grantees, hired by both for-profit and nonprofit entities. Thus, while traditionally we relied on diplomats, spies, and soldiers to protect and promote our interests abroad, increasingly we have turned to hired guns. Contrast the first Gulf War to later conflicts in Iraq and Afghanistan. During the Gulf War the ratio of contractors to troops was 1 to 100; now, with …

Go to article

Competition Agency Design: What's On The Menu?, William E. Kovacic, David A. Hyman Jan 2012

Competition Agency Design: What's On The Menu?, William E. Kovacic, David A. Hyman

GW Law Faculty Publications & Other Works

In recent years the United Kingdom and various other countries have decided to restructure the institutions responsible for enforcing competition laws. How should a nation choose among myriad alternative arrangements? This paper lays out nine major institutional choices that governments must address in designing the implementation mechanism for a competition law. The paper discusses tradeoffs associated with each choice and examines interdependencies among different design elements. In doing so, the paper offers a structured framework that countries can use in forming new competition systems or altering existing institutional arrangements.

Go to article

Codification, Progressive Development, Or Scholarly Analysis? The Art Of Packaging The Ilc's Work Product, Sean D. Murphy Jan 2012

Codification, Progressive Development, Or Scholarly Analysis? The Art Of Packaging The Ilc's Work Product, Sean D. Murphy

GW Law Faculty Publications & Other Works

Over its life, the U.N. International Law Commission has developed various ways of “packaging” its work product. Multiple techniques are available for balancing the Commission’s roles in advancing the codification and progressive development of international law – choices about the format of the project, about how to characterize the project in the associated commentary, and about the recommendation to the U.N. General Assembly on what should be done with the completed project. While creative use of such techniques to suit the particular topics on the Commission’s agenda is to be welcomed, the Commission’s authority and legacy ultimately will turn on …

Go to article

Book Review Of The Law Of International Responsibility (James Crawford, Alain Pellet, And Simon Olleson Eds., Oxford University Press, 2010), Sean D. Murphy Jan 2012

Book Review Of The Law Of International Responsibility (James Crawford, Alain Pellet, And Simon Olleson Eds., Oxford University Press, 2010), Sean D. Murphy

GW Law Faculty Publications & Other Works

If one were to affix a label to the first decade of work by the UN International Law Commission in this century, a good one to choose would be the “decade of codifying international responsibility.” No fewer than five projects relating to that general topic were brought to a conclusion by the Commission in the space of ten years, constituting a formidable effort at codification that may well influence the field of public international law for years to come. Given that the Commission had spent decades considering, as part of a single project, myriad aspects of state responsibility, in some …

Go to article

Counter-Claims At The International Court Of Justice (2012), Sean D. Murphy Jan 2012

Counter-Claims At The International Court Of Justice (2012), Sean D. Murphy

GW Law Faculty Publications & Other Works

In proceedings before the International Court of Justice (I.C.J.), a “counter-claim” is “an autonomous legal act” by the Respondent in a contentious case, “the object of which is to submit a new claim to the Court,” one that is “linked to the principal claim, in so far as, formulated as a ‘counter’ claim, it reacts to" the principal claim. A counter-claim is not a defense on the merits to the principal claim; while it is a reaction to that claim, it is pursuing objectives other than simply dismissal of the principal claim. Hence, the reason for allowing a counter-claim to …

Go to article

Modern Military Justice: Cases And Materials, Gregory E. Maggs, Lisa M. Schenck Jan 2012

Modern Military Justice: Cases And Materials, Gregory E. Maggs, Lisa M. Schenck

GW Law Faculty Publications & Other Works

This new textbook (ISBN-13: 978-0314268037) comprehensively covers the modern military justice system under the Uniform Code of Military Justice. Materials from every service within the Armed Forces show how the military justice system addresses all criminal offenses, ranging from minor infractions to serious offenses, such as the misconduct of soldiers at Abu Ghraib prison. The text covers the jurisdiction of courts-martial; sources of military law; military offenses and defenses; pretrial, trial, and appellate procedures; the role of judge advocates; nonjudicial punishment and other alternatives to courts-martial; special forums, such as boards of inquiry and military commissions for trying enemy belligerents; …

Go to article

Improving Water Quality Antidegradation Policies, Robert L. Glicksman, Sandra B. Zellmer Jan 2012

Improving Water Quality Antidegradation Policies, Robert L. Glicksman, Sandra B. Zellmer

GW Law Faculty Publications & Other Works

The Clean Water Act’s principal goal is to “restore and maintain” the integrity of the nation’s surface water bodies. The Act’s adoption was spurred largely by the perception that unchecked pollution had caused the degradation of those waters, making them unsuitable for uses such as fishing and swimming. At the time Congress passed the statute, however, some lakes, rivers, and streams had water quality that was better than what was needed to support these uses. An important question was whether the statute would limit discharges with the potential to impair these high quality waters. EPA’s anti-degradation policy sought to ensure …

Go to article

Outpost Years For A Start-Up Agency: The Ftc From 1921-1925, William E. Kovacic, Marc Winerman Jan 2012

Outpost Years For A Start-Up Agency: The Ftc From 1921-1925, William E. Kovacic, Marc Winerman

GW Law Faculty Publications & Other Works

The challenges and questions surrounding the design of a competition system are part of an identifiable life cycle that characterizes the development of a competition agency. The core challenges are to set priorities and execute them, but there are various potential obstacles. This article looks at the FTC’s experiences in its first decade, a period bringing extraordinary technological dynamism that reshaped the U.S. economy and transitions in political leadership, to shed light on how a new or reformed agency might go about facing predictable problems in its first years and to suggest how these agencies can improve their effectiveness.

New …

Go to article

Reasonableness With Teeth: The Future Of Fourth Amendment Reasonableness Analysis, Cynthia Lee Jan 2012

Reasonableness With Teeth: The Future Of Fourth Amendment Reasonableness Analysis, Cynthia Lee

GW Law Faculty Publications & Other Works

This essay assesses the past, the present, and the future of Fourth Amendment reasonableness analysis. Part I focuses on the past. For much of the twentieth century, the Court embraced what is called the warrant preference view of the Fourth Amendment under which a search was considered reasonable if the government obtained a search warrant prior to the search or an exception to the warrant requirement applied. Part II focuses on the present. Even though it still treats as reasonable both searches conducted pursuant to a warrant and searches that fall within a well established exception to the warrant requirement, …

Go to article

Global Legal Pluralism: A Jurisprudence Of Law Beyond Borders (Introduction), Paul Schiff Berman Jan 2012

Global Legal Pluralism: A Jurisprudence Of Law Beyond Borders (Introduction), Paul Schiff Berman

GW Law Faculty Publications & Other Works

We live in a world of legal pluralism, where a single act or actor is potentially regulated by multiple legal or quasi-legal regimes imposed by state, substate, transnational, supranational, and nonstate communities. Navigating these spheres of complex overlapping legal authority is inevitably confusing, and we cannot expect territorial borders to solve all the problems that arise because legal norms inevitably flow across such borders. At the same time, trying to create one universal set of legal rules is also often unsuccessful because the sheer variety of human communities and interests thwarts such efforts. Instead, we need an alternative jurisprudence, one …

Go to article

The Institutional Case For Judicial Review, Jonathan R. Siegel Jan 2012

The Institutional Case For Judicial Review, Jonathan R. Siegel

GW Law Faculty Publications & Other Works

The “popular constitutionalism” movement has revived the debate over judicial review. Popular constitutionalists have attacked judicial review as being illegitimate in a democracy or inconsistent with original intent, and they have argued that the Constitution should be enforced through popular, majoritarian means, such as elections and legislative agitation. This Article shows in response that the judicial process has institutional characteristics that make judicial review the superior method of constitutional enforcement. Prior literature has focused on just one such institutional characteristic — the political insulation of judges. This Article, by contrast, shows that the case for judicial review rests on a …

Go to article

A House Of Cards Falls: Why 'Too Big To Debar' Is All Slogan And Little Substance, Jessica Tillipman Jan 2012

A House Of Cards Falls: Why 'Too Big To Debar' Is All Slogan And Little Substance, Jessica Tillipman

GW Law Faculty Publications & Other Works

“A House of Cards Falls: Why ‘Too Big to Debar’ is All Slogan and Little Substance” is a critical response to the article, "FCPA Sanctions: Too Big to Debar" by Drury D. Stevenson and Nicholas J. Wagoner, which aptly demonstrates a common, yet fundamentally flawed understanding of the FAR 9.4 suspension and debarment regime. "Too Big to Debar" asserts that when large government contractors violate the Foreign Corrupt Practices Act (FCPA), they should be “punished” by being debarred from the procurement system. Indeed, despite FAR 9.4’s clear directive to use debarment only for the purpose of protecting the government, not …

Go to article

The Necessity Of Tradeoffs In A Properly Functioning Civil Procedure System, Alan B. Morrison Jan 2012

The Necessity Of Tradeoffs In A Properly Functioning Civil Procedure System, Alan B. Morrison

GW Law Faculty Publications & Other Works

No abstract provided.

Go to article

Brief For Royal Dutch Petroleum Co. Et Al., As Amici Curiae Supporting Respondents, Kiobel V. Royal Dutch Petroleum Co., 132 S.Ct. 1738 (2012) (No. 10-1491)., Bradford R. Clark, Anthony J. Bellia Jr. Jan 2012

Brief For Royal Dutch Petroleum Co. Et Al., As Amici Curiae Supporting Respondents, Kiobel V. Royal Dutch Petroleum Co., 132 S.Ct. 1738 (2012) (No. 10-1491)., Bradford R. Clark, Anthony J. Bellia Jr.

GW Law Faculty Publications & Other Works

No abstract provided.

Go to article

Brief For Esther Kiobel, Et Al., As Amici Curiae Supporting Petitioners, Kiobel V. Royal Dutch Petroleum Co., 132 S.Ct. 1738 (2012) (No. 10-1491)., Ralph G. Steinhardt, Arin Melissa Brenner Jan 2012

Brief For Esther Kiobel, Et Al., As Amici Curiae Supporting Petitioners, Kiobel V. Royal Dutch Petroleum Co., 132 S.Ct. 1738 (2012) (No. 10-1491)., Ralph G. Steinhardt, Arin Melissa Brenner

GW Law Faculty Publications & Other Works

No abstract provided.

Go to article

Book Review Of The Law Of International Responsibility (James Crawford, Alain Pellet, And Simon Olleson Eds., Oxford University Press, 2010), Sean D. Murphy Jan 2012

Book Review Of The Law Of International Responsibility (James Crawford, Alain Pellet, And Simon Olleson Eds., Oxford University Press, 2010), Sean D. Murphy

GW Law Faculty Publications & Other Works

If one were to affix a label to the first decade of work by the UN International Law Commission in this century, a good one to choose would be the “decade of codifying international responsibility.” No fewer than five projects relating to that general topic were brought to a conclusion by the Commission in the space of ten years, constituting a formidable effort at codification that may well influence the field of public international law for years to come. Given that the Commission had spent decades considering, as part of a single project, myriad aspects of state responsibility, in some …

Go to article

District Court Review Of Findings Of Fact Proposed By Magistrates: Myth Or Reality, Richard J. Pierce Jr Jan 2012

District Court Review Of Findings Of Fact Proposed By Magistrates: Myth Or Reality, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

In this essay, Professor Pierce criticizes the decisions in six circuits that forbid a district judge from rejecting a finding of fact proposed by a magistrate without first conducting a new evidentiary hearing. Those decisions are inconsistent with the Magistrates Act of 1968, the 1951 decision of the Supreme Court that authorizes agencies to reject findings of fact made by Administrative Law Judges without conducting a new evidentiary hearing, the consistent findings of empirical studies that a fact-finder’s ability to observe the demeanor of witnesses does not improve the fact-finder’s ability to evaluate the credibility of witnesses, and Articles I …

Go to article

Emerging Policy And Practice Issues (2011), Steven L. Schooner, David J. Berteau Jan 2012

Emerging Policy And Practice Issues (2011), 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 2011), attempts to identify the key trends and issues for 2012 in U.S. federal procurement. It begins from the premise that the most significant emerging issue in government contracting, looking ahead, is the money (or lack of it). As the fiscal belt tightens, the procurement landscape - what the government buys, from whom, and how - will necessarily change. Consistent with prior practice, this chapter offers extensive coverage of the federal procurement spending trend and attempts to predict what lies ahead. It also discusses the proliferation of …

Go to article

From Start To Finish: A Historical Review Of Nuclear Arms Control Treaties And Starting Over With The New Start, Lisa M. Schenck, Robert A. Youmans Jan 2012

From Start To Finish: A Historical Review Of Nuclear Arms Control Treaties And Starting Over With The New Start, Lisa M. Schenck, Robert A. Youmans

GW Law Faculty Publications & Other Works

This article provides a historical review of nuclear arms control agreements from 1925 to 2011, describing how these agreements helped diminish the nuclear arms threat and build up. As this article explains, nuclear arms control agreements can be segmented into distinct periods reflecting different approaches to the nuclear arms threat, with each stage addressing different focused objectives. As negotiations evolved throughout history, the United States and Soviet Union undertook a nuclear arms race, each striving to gain a military advantage over the other by building more and more nuclear weapons and the means to deliver them. Accordingly, a debate evolved …

Go to article

The Wto’S Revised Government Procurement Agreement - An Important Milestone Toward Greater Market Access And Transparency In Global Public Procurement Markets, Robert D. Anderson, Steven L. Schooner, Collin D. Swan Jan 2012

The Wto’S Revised Government Procurement Agreement - An Important Milestone Toward Greater Market Access And Transparency In Global Public Procurement Markets, Robert D. Anderson, Steven L. Schooner, Collin D. Swan

GW Law Faculty Publications & Other Works

In December of 2011, the Parties to the World Trade Organization Government Procurement Agreement (GPA) adopted significant revisions to the Agreement. The revised Agreement comprises (a) a much-needed modernization of the text of the Agreement, (b) an expansion of related market-access commitments by the Parties, and (c) a set of Future Work Programs intended to enhance transparency among the Parties and improve the administration of the Agreement. In these unstable economic times, the importance of the GPA and its improvements cannot be overstated.

This article also bemoans the media's misrepresentation of the ongoing process of China's negotiated accession into the …

Go to article

Foreword To Scholarly Writing: Ideas, Examples, And Execution, Steven L. Schooner Jan 2012

Foreword To Scholarly Writing: Ideas, Examples, And Execution, Steven L. Schooner

GW Law Faculty Publications & Other Works

This foreword recommends the forthcoming second edition of Scholarly Writing: Ideas, Examples, and Execution by Jessica L. Clark and Kristen E. Murray. The book, published by Carolina Academic Press, is a welcome tool and useful resource for students embarking on their scholarly writing endeavors. Having supervised hundreds of LL.M. candidates struggling to complete a thesis, J.D. students attempting to fulfill a scholarly note requirement dominating their second-year law journal experience, and J.D. and LL.M. candidates writing seminar papers or independent research and writing projects, the author encourages students to invest in Scholarly Writing as a helpful and instructive lifeline. The …

Go to article

Affirmatively Inefficient Jurisprudence?: Confusing Contractors’ Rights To Raise Affirmative Defenses With Sovereign Immunity, Steven L. Schooner, Pamela Kovacs Jan 2012

Affirmatively Inefficient Jurisprudence?: Confusing Contractors’ Rights To Raise Affirmative Defenses With Sovereign Immunity, Steven L. Schooner, Pamela Kovacs

GW Law Faculty Publications & Other Works

In M. Maropakis Carpentry v. United States, the U.S. Court of Appeals for the Federal Circuit upset the commonly understood rules of practice and procedure for government contracts dispute litigation. In what the Supreme Court might view as a drive-by jurisdictional ruling, the court held that a contractor must file its own claim for time extensions before it can defend against a government claim for liquidated damages. Two Court of Federal Claims cases then confirmed fears that the decision would create a significant, disruptive, and disadvantageous change in procedural posture for a large number of contractors defending against government …

Go to article

Comparative Administrative Law, Francesca Bignami Jan 2012

Comparative Administrative Law, Francesca Bignami

GW Law Faculty Publications & Other Works

This chapter provides an overview of comparative administrative law, with particular attention to European jurisdictions and the United States. The underlying conceptual similarity that serves to organize the comparative analysis is the purpose, common to these systems, of rendering public administration both capable and expert, on the one hand, and accountable to a variety of liberal democratic actors, on the other hand. The chapter first discusses what historically was the principal legal tool for achieving neutrality and expertise—the legal guarantees of civil service employment—together with national variations in the professionalization of administration. It then turns to three important types of …

Go to article

Matching Political Contributions, Spencer A. Overton Jan 2012

Matching Political Contributions, Spencer A. Overton

GW Law Faculty Publications & Other Works

Traditional public financing of campaigns is in trouble. Successful candidates have increasingly rejected public financing because it provides inadequate funding and limits candidate spending. November 2012 was the first general election in which presidential candidates from both major parties rejected public financing since the inception of the program. The U.S. Supreme Court recently issued a decision that undermined traditional public financing systems. If existing programs are not revamped soon public financing may be off the public radar for decades, as budget deficits make antiquated public financing programs ripe targets for spending cuts. This Essay proposes a paradigm shift. Public financing …

Go to article

In Defense Of Judicial Empathy, Thomas B. Colby Jan 2012

In Defense Of Judicial Empathy, Thomas B. Colby

GW Law Faculty Publications & Other Works

President Obama has repeatedly stated that he views a capacity for empathy as an essential attribute of a good judge. And conservatives have heaped mountains of scorn upon him for saying so—accusing him of expressing open contempt for the rule of law. To date, the debate has been surprisingly one-sided. One federal judge has recently noted that “President Obama’s statement that judges should have ‘empathy’ was met with strong criticism from his opponents and uncomfortable silence from his supporters.” This Article seeks to offer a sustained defense of the President’s call for empathy in judging. Its argument is neither grounded …

Go to article

First Prev Next Last