Law Commons^™

The America Invents Act, Its Unique First-To-File System And Its Transfer Of Power From Juries To The United States Patent And Trademark Office, Martin J. Adelman

GW Law Faculty Publications & Other Works

The signing of the Leahy-Smith America Invents Act (AIA) by President Obama on 16 September 2011 is a landmark event in the history of American patent law. It has already been the subject of numerous articles on the web and in the law reviews as well as in the popular press. I have no intention here of going into all the details of the AIA, I just want to leave the reader with a sense for its eventual impact on American patent law. All the details are to be found in its 37 sections whose titles give the reader a …

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

GW Law Faculty Publications & Other Works

Modern Military Justice: Cases and Materials (2012) is a textbook written by Professor Gregory E. Maggs and Associate Dean Lisa Schenck (both of the George Washington University Law School) and published by West (ISBN-13: 9780314268037).

This new textbook 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 …

How To Choose The Least Unconstitutional Option: Lessons For The President (And Others) From The 2011 Debt Ceiling Standoff, Neil H. Buchanan, Michael C. Dorf

GW Law Faculty Publications & Other Works

The current successor to a federal statute first enacted in 1917, and widely known as the “debt ceiling,” limits the face value of money that the United States may borrow. Congress has repeatedly raised the debt ceiling to authorize borrowing to fill the gap between revenue and spending, but in the summer of 2011, a political standoff nearly left the government unable to borrow funds to meet obligations that Congress had affirmed earlier that very year. Some commentators urged President Obama to ignore the debt ceiling and issue new bonds, in order to comply with Section 4 of the Fourteenth …

Nullifying The Debt Ceiling Threat Once And For All: Why The President Should Embrace The Least Unconstitutional Option, Neil H. Buchanan, Michael C. Dorf

GW Law Faculty Publications & Other Works

In August 2011, Congress and the President narrowly averted economic and political catastrophe, agreeing at the last possible moment to authorize a series of increases in the national debt ceiling. This respite, unfortunately, was merely temporary. The amounts of the increases in the debt ceiling that Congress authorized in 2011 were only sufficient to accommodate the additional borrowing that would be necessary through the end of 2012. In an economy that continued to show chronic weakness -- weakness that continues to this day -- the federal government would pre-dictably continue to collect lower-than-normal tax revenues and to make higher-than-normal expenditures, …

When You Pass On, Don't Leave The Passwords Behind: Planning For Digital Assets, Naomi R. Cahn, Gerry W. Beyer

GW Law Faculty Publications & Other Works

The universe of digital assets is vast, including email accounts, picture and video storage sites, social networking sites, domain names, games and related sites; professional sites and backups; as well as online banking and business accounts. Moreover, digital assets go beyond online accounts to include your own personal or work computers, their hardware and software. If your clients are smart about their digital life, then they have numerous usernames, passwords, and security questions for their accounts. Trust and estates lawyers are increasingly helping to plan for the care of digital assets upon their client’s incapacity or death, providing advice concerning …

The End Of Men Or The Rebirth Of Class? How Hanna Rosin Leaves Out The 1% & Family Law Fails The Other 99%, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

This article argues that much of what has been described as “the end of men” is in fact the recreation of class. Greater inequality among men and among women has resurrected class differences and changed the way men and women relate to each other and channel resources to their children. While women have in fact gained ground in the workplace and acquired greater ability to live, work, play and raise children without men, a mere relative move towards sex equality only masks the more fundamental changes occurring in American society and the continuing existence of patriarchy. First, the improved freedom …

The New Kinship, Naomi R. Cahn

GW Law Faculty Publications & Other Works

Over the past century, the Supreme Court has articulated numerous doctrines that protect family privacy. These doctrines are not, however, well-suited to the brave new world of families formed through donor eggs, sperm, and embryos. As the number of donor-conceived children born to same-sex and heterosexual couples and to single parents increases, and as these families develop connections to one another, the law has not yet adjusted. This Article provides an extensive mapping of these “donor-conceived family communities,” and it reaches two major conclusions that support the development of these new families. First, relational interests, the traditional focus in family …

The Age Of Innocence: The First 25 Years Of The National Collegiate Athletic Association, 1906 To 1931, W. Burlette Carter

GW Law Faculty Publications & Other Works

The article traces the history of the most powerful body in amateur sports, the NCAA, discussing the regulation of amateur sports before it arose, the factors that led to its creation, early definitions of amateurism, key issues facing the early body, its promotion of University amateur sports as a training ground for soldiers during World War I, emerging conflicts among members, its treatment of collegiate segregation policies and campus neglect of women's sports opportunities, and how past problems in amateur sports regulation were prologue for the issues facing intercollegiate athletics regulators and participants today.

An Addendum To Cox And Posner: A Visa To 'Snitch', Eleanor Marie Brown

GW Law Faculty Publications & Other Works

Cox and Posner’s landmark contribution is the first article to have highlighted the challenges of information asymmetry in immigration screening. While Cox and Posner have undoubtedly made a significant contribution, there is a critical oversight in their framework: they do not discuss the importance of targeted ex post mechanisms of screening educational elites. This Essay is an attempt to remedy Cox and Posner’s omission. Why is this oversight so problematic? In the post-9/11 world, U.S. immigration policy currently finds itself on the horns of a dilemma. While immigrant educational elites are critical to U.S. economic growth, terrorist networks have stepped …

Downgrading Rating Agency Reform, Jeffrey Manns

GW Law Faculty Publications & Other Works

The Dodd-Frank Act promised to usher in sweeping changes to overhaul the rating agency industry whose shortcomings helped to pave the way to the financial crisis. But two years after the Act’s passage, hopes have given way to disappointment. The most important challenges of how to enhance rating agency competition, accuracy, and accountability remain largely open questions. The Securities & Exchange Commission (SEC) has made progress in heightening rating agency oversight and addressing the most egregious abuses that fueled the financial crisis. But rating agency reforms have fallen far short of their potential due to the Act’s competing objectives to …

Insuring Against A Derivative Disaster: The Case For Decentralized Risk Management, Jeffrey Manns

GW Law Faculty Publications & Other Works

This Article makes the case for a decentralized risk management strategy for identifying and defusing future bubble markets. It suggests how the government can enlist private "gatekeeper guarantors" to provide integrated insurance and monitoring roles to complement the government’s management of systemic risks. It proposes the enactment of a federal mandate that systemically significant financial entities (or participants in systemically significant financial sectors) secure private guarantees to cover a percentage of their potential liabilities (above a loss threshold). Gatekeeper guarantors would act as “circuit breakers” of systemic risk by serving as self-interested monitors of risk taking and tying clients’ coverage …

The Rise Of Institutional Law Practice, Thomas D. Morgan

GW Law Faculty Publications & Other Works

For generations, the legal profession has assumed that only individual lawyers practice law. Ethical standards have been largely, if not exclusively, directed at individuals, and practice organizations have been regulated to prevent limiting individual lawyer professional judgment. The world in which lawyers now practice makes the individualized model obsolete. The complexity of modern law narrows the breadth of any individual lawyer's practice and makes law firms and other practice organizations inevitable. Firms, in turn, must maintain both ethical compliance and a high level of service quality that is inconsistent with lawyers behaving idiosyncratically. The article explores these developments and suggests …

Natural Gas: A Long Bridge To A Promising Destination, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

In this essay, Professor Pierce argues that the horizontal drilling and hydraulic fracturing of shale formations that has nearly doubled US gas supplies over the last six years has the potential to yield a century of enormous environmental and economic benefits to the US and to the world.

The Restatement's Supersized Duty Of Loyalty Provision, Michael Selmi

GW Law Faculty Publications & Other Works

This essay analyzes and critiques the Restatement of Employment Law’s provision on the duty of loyalty. Cases invoking the duty of loyalty have generally been successful only in the limited circumstance when an employee leaves her current employment to start a competing business. The Restatement, however, reconceptualizes the duty of loyalty claim into a catch all provision that could be used to restrain employees from moving to competitors, even in the absence of a noncompete agreement, and to protect trade secrets or confidential information. The expansion of the duty of loyalty cause of action is unsupported by either the existing …

Enforcing The Nuclear Nonproliferation Regime: The Legality Of Preventive Measures, Cristian Defrancia

Vanderbilt Journal of Transnational Law

Efforts to limit the proliferation of nuclear weapons and nuclear-weapons-related technology have increasingly involved economic, technological, and military forms of coercion implemented in an environment of low-level conflict. Coercive counterproliferation measures have included a range of actions, including targeted economic sanctions, industrial sabotage, cyber attacks, targeted killings, and military strikes. While the nonproliferation obligations of states are well-established under relevant treaties, state practice, and the international monitoring system of the International Atomic Energy Agency (IAEA), norms relating to the enforcement of those obligations are not clearly defined in legal instruments. This Article reviews the legality of prevention and enforcement measures …

A Complementarity Conundrum: International Criminal Enforcement In The Mexican Drug War, Spencer Thomas

Vanderbilt Journal of Transnational Law

Drug-related violence in Mexico has claimed over 34,000 lives since Mexican President Felipe Calderon initiated his crackdown on Mexico's drug cartels in 2006 with the deployment of military troops to Michoacan. Somewhat surprisingly, Mexico's drug war has garnered rather little attention from the international community, despite a wealth of headlines in popular media. This Note takes up the question of international criminal enforcement in Mexico against Los Zetas, widely considered Mexico's most violent drug cartel. By setting up a hypothetical--but possible--International Criminal Court (ICC) prosecution of Los Zetas cartel leader Heriberto Lazcano, this Note demonstrates that the ICC Prosecutor could …

Law And Development As Anti-Comparative Law, Jedidiah Kroncke

Vanderbilt Journal of Transnational Law

This Article asserts that during the twentieth century, American law has predominantly structured its relationship to foreign legal experience through a set of ideas and practices known as "law and development," which is irredeemably antithetical to the practice of comparative law. Centrally, law and development is built on the assumption that American law can be exported abroad to catalyze foreign legal development. The dismal record of such efforts has remained paradoxically popular while the field remains locked in repeating cycles of failure and optimism.

This Article demonstrates that the history of law and development's failures is far older than has …

Secular Crosses And The Neutrality Of Secularism, Marie E. Roper

Vanderbilt Journal of Transnational Law

This Note discusses analogous themes in two religious public display cases, Lautsi v. Italy, recently decided by the Grand Chamber of the European Court of Human Rights (ECHR), and Salazar v. Buono, recently handed down by the U.S. Supreme Court. Broader critiques of ECHR religious jurisprudence are addressed in the context of the interpretation and application of the principle of neutrality and the argument that secularism is not a necessary postulate of this demand. It is this theme of the relationship between neutrality and secularism that is also prominent in the American discussion about the relationship between government and religion. …

Introduction: The Politics Of Hate, Robert L. Tsai

Faculty Scholarship

This is a special issue dedicated to the topic of hate and political discourse. Collectively, the peer-reviewed articles in this volume are concerned with the political aspects of hatred, i.e., psychology, motivations, organization, tactics, and ends. The articles approach the problem from a variety of disciplines, including anthropology, history, law, literature, philosophy, political science, psychology, and sociology. Among the subjects analyzed: group hatred as a heritable trait; hate as an irrational system of thought; Italian fascism's construction of the Communist other; the rise of the English Defence League and its anti-Islam activities; the persistent myth of blood libel; judicial handling …

The Balkinization Of Originalism, James E. Fleming

Faculty Scholarship

This Article suggests that, with the publication of Jack Balkin's Living Originalism, we are witnessing the "Balkanization" of originalism (when originalism splits into warring camps) along with the "Balkinization" of originalism (when even Balkin, hitherto a pragmatic living constitutionalist, becomes an originalist). It goes on to argue that Balkin's living originalism is what Ronald Dworkin has called a "moral reading" of the Constitution, for it conceives the Constitution as embodying abstract moral and political principles, not codifying concrete historical rules or practices. Furthermore, despite important differences, there are unmistakable affinities between Balkin's commitment to interpret the Constitution so as to …

La Jurisprudence Américaine En Matière De “Class Arbitration”: Entre Débat Politique Et Technique Juridique, William W. Park

Faculty Scholarship

Arbitration law implicates a delicate equilibrium between respect for the bargain to arbitrate and protection of basic procedural fairness. The role of law thus remains intimately linked to the rule of law, in the sense of an impartial tribunal, the right to be heard, and respect for the arbitrator's mission. The legitimacy of the process depends on how arbitrators balance the often competing goals of due process and efficiency, and whether the authorities that review awards can monitor procedural integrity without infringing an arbitrator's prerogatives on a dispute's substantive merits. Two U.S. Supreme Court decisions on class arbitration serve as …

Chain-Link Confidentiality, Woodrow Hartzog

Faculty Scholarship

Disclosing personal information online often feels like losing control over one’s data forever; but this loss is not inevitable. This essay proposes a “chain-link confidentiality” approach to protecting online privacy. One of the most difficult challenges to guarding privacy in the digital age is the protection of information once it is exposed to other people. A chain-link confidentiality regime would contractually link the disclosure of personal information to obligations to protect that information as the information moves downstream. The system would focus on the relationships not only between the discloser of information and the initial recipient, but also between the …

Patent Litigation And The Internet, John R. Allison, Emerson H. Tiller, Samantha Zyontz, Tristan Bligh

Faculty Scholarship

Patent infringement litigation has not only increased dramatically in frequency over the past few decades,¹ but also has also seen striking growth in both stakes and cost.² Although a relatively rich literature has added much to our understanding of the nature, causes, and consequences of patent litigation during the past two decades,³ many interesting questions remain inadequately addressed. The nuances of and trends in patent litigation in different technology fields and industries, for example, are still understudied.⁴ Litigation of patents on new technologies has likewise received a dearth of attention. Here we seek to help begin …

Private Regulation Of Consumer Arbitration, Christopher R. Drahozal, Samantha Zyontz

Faculty Scholarship

Arbitration providers, such as the American Arbitration Association ("AAA') and JAMS, have promulgated due process protocols to regulate the fairness of consumer and employment arbitration agreements. A common criticism of these due process protocols, however, has been that they lack an enforcement mechanism. While arbitration providers state that they enforce the protocols by refusing to administer cases in which the arbitration agreement materially fails to comply with the relevant protocol, the private nature of arbitral dispute resolution makes it difficult to verify whether providers in fact refuse to administer such cases.

This Article reports the results of the first empirical …

Bank Ceos, Inside Debt Compensation, And The Global Financial Crisis, Frederick Tung, Xue Wang

Faculty Scholarship

Bank executives’ compensation has been widely identified as a culprit in the Global Financial Crisis, and reform of banker pay is high on the public policy agenda. While Congress targeted its reforms primarily at bankers’ equity-based pay incentives, empirical research fails to show any correlation between bank CEO equity incentives and bank performance in the Financial Crisis. We offer an alternative analysis, hypothesizing that bank CEOs’ inside debt incentives correlate with reduced bank risk taking and improved bank performance in the Crisis. A nascent literature shows that inside debt may dampen CEOs’ risk taking incentives. Unlike the industrial firms that …

The Resurgence Of Uncorporation: The Business Trust In Singapore, Hang Wu Tang

Research Collection Yong Pung How School Of Law

The business trust has enjoyed resurgence in Singapore following the enactment of the Business Trusts Act. In March 2011, a high profile initial public offering in Singapore involving a business trust raised a staggering US $5.5 billion making this one of the world’s largest initial public offering of the year. Further, Hong Kong telecommunication company, PCCW Ltd has also offered a business trust via a stapled security structure in November 2011. Yet the business trust is not widely understood by many lawyers. Thus, one of the aims of this paper is to provide a description of the business trust as …

Travels Of The Criminal Question: Cultural Embeddedness And Diffusion [Book Review], Mark Findlay

Research Collection Yong Pung How School Of Law

No abstract provided.

The Northern Arabian Gulf : A Critical Area For Maritime Safety And Security, Sameer A. Marzoq

World Maritime University Dissertations

The purpose of this study is to look for a solution for the problem on maritime safety and security in The Northern Arabian Gulf (NAG). Due to the absence of an agreement between the countries of the North Arabian Gulf and the existence of cases of instability, which took advantage of the other parties to carry out criminal acts adversely affect the safety and security of the region came this research for the purpose of shedding light on this problem and then propose appropriate solutions in accordance with international laws of the seas and oceans. It also intends to provide …

Who Bears The Cost Of Excessive Executive Compensation (And Other Corporate Agency Costs)?, David I. Walker

Faculty Scholarship

Managerial agency costs are ubiquitous in the modern public corporation. Agency costs arise from the separation of ownership and control and reflect the divergence between share-value-maximizing actions of managers and managers’ actual actions, plus the monitoring and bonding expenditures (including contracting costs) undertaken to reduce that divergence. Agency costs vary firm by firm, but regulatory actions and even business practices can have a systematic impact on agency costs. For example, increased or decreased enforcement of insider trading rules can affect agency costs across a wide spectrum of companies. Who bears the burden of corporate agency costs? Who gains or suffers …

Agents Without Principals: Regulating The Duty Of Loyalty For Non Profit Corporations Through The Intermediate Sanctions Tax Regulations, Carly B. Eisenberg, Kevin Outterson

Faculty Scholarship

Delaware corporate law imposes a duty of loyalty on officers and directors as a mechanism to regulate and deter self-dealing transactions. In nonprofit corporations, however, there are generally no shareholders with direct financial incentives to monitor against self-dealing. In the absence of shareholders and other principals, Congress and the IRS have articulated duty of loyalty rules for nonprofits that reach far beyond those applied to the for-profit world--most prominently the § 4958 intermediate sanctions. This article identifies the persons who owe a duty of loyalty to a nonprofit corporation, the applicable fiduciary standards for violating the duty of loyalty, and …