Law Commons^™

In Search Of Refuge: Mexican Refugees And Asylum Seekers To The U.S. From 1980 To The Present, Taylor Kristine Levy

Open Access Theses & Dissertations

An estimated 130,000 Mexicans have been murdered since 2006, with another 27,000 having been officially "disappeared;" approximately 2-3% of the adult Mexican population has been forced to leave their homes due to this violence, many of whom have entered the United States seeking refuge (Molloy, 2013; Olivares, 2012). These refugees have emigrated using a variety of both authorized and unauthorized channels, with a significant (and increasing) number applying for political asylum in the United States (Lyst, 2013). This Thesis seeks to provide a historic background and comprehensive analysis of the identity and struggles of the four types of modern Mexican …

Front Matter

Intercultural Human Rights Law Review

Front Matter includes Masthead, advisors, and Table of Contents for the Intercultural Human Rights Law Review Volume 9 (2014).

The Role Of Law, Judicial Reform And The Protection Of Human Rights In Moldova And Transnistria, Judithanne Scourfield Mclauchlan

Intercultural Human Rights Law Review

This article will provide an overview of human rights violations in Transnistria, with an emphasis on the cases brought before the European Court of Human Rights. The role of human rights NGOs (such as Promo-LEX), reform-minded civil society, and the influence of the Russian Federation and the Republic of Moldova in the PMR will be explored. The current situation will be analyzed in the context of the resumption of the 5+2 negotiation, as well as the major judicial reform effort (the Strategy for Justice Sector Reform, 2011-2015) that the governing coalition in Moldova, formerly the "Alliance for European Integration" and …

Colombia's Herbidice Spraying In The Crucible Between Indigenous Rights, Environmental Law And State Security, Paola Solano

Intercultural Human Rights Law Review

For many years Colombia has struggled with eradicating illicit narcotic crops. Spraying coca and poppy crops aerially with chemical herbicides has been one of Colombia's strategies. However, this practice has resulted in serious violations of human and environmental rights. Because the herbicides were aerially sprayed at locations near, at and across the border with Ecuador, it has caused transboundary damage not only to people, animals and crops but also to bordering Ecuador's natural environment. It has also caused damage to the Colombian environment, population, and Indigenous groups. In 2008, Ecuador submitted an application instituting proceedings to the International Court of …

When Churches Reorganize, Pamela Foohey

Scholarly Works

This Article combines an analysis of documents submitted in connection with Chapter 11 cases filed by religious organizations with the results of in-depth interviews with these organizations’ leaders and their bankruptcy attorneys to assess whether reorganization has the potential to offer an effective solution to these debtors’ financial distress. In doing, it makes three contributions. First, it identifies a subset of organizations that seemed more likely to turn to bankruptcy: small congregationalist and non-denominational churches, often with predominately African-American membership. The Article pinpoints salient questions about these churches’ access to credit and use of bankruptcy for future study. Second, it …

To The Victor Goes The Toil -- Remedies For Regulated Parties In Separation-Of-Powers Litigation, Kent H. Barnett

Scholarly Works

The U.S. Constitution imposes three key limits on the design of federal agencies. It constrains how agency officers are appointed, the extent of their independence from the President, and the range of issues that they can decide. Scholars have trumpeted the importance of these safeguards with soaring rhetoric. And the Supreme Court has permitted regulated parties to vindicate these safeguards through implied private rights of action under the Constitution. Regulated parties, for their part, have been successfully challenging agency structure with increased frequency. At the same time, regulated parties, courts, and scholars have largely ignored the practical question of “structural …

Crafting A Narrative For The Red State Option, Elizabeth Weeks Leonard

Scholarly Works

This Article examines the current state of play following the Supreme Court's decision in NFIB v. Sebelius to allow states the option of expanding their Medicaid programs in accordance with the Patient Protection and Affordable Care Act (ACA). Holding that mandatory expansion was unconstitutionally coercive, the Court created the Red State Option. Despite the enormously generous federal financial support for Medicaid expansion, close to half of the states have declined. At the same time, at least eight Republican-led states have crossed Tea Party lines to accept federal funding for expansion. Drawing lessons from these states, including Arkansas, Arizona, Michigan, and …

The Empty Promise Of Vara: The Restrictive Application Of A Narrow Statute, David E. Shipley

Scholarly Works

The Visual Artists Rights Act (VARA) was enacted by Congress in 1990 in order to bring our laws into compliance with Article 6bis of the Berne Convention and to acknowledge that protecting moral rights will foster “a climate of artistic worth and honor that encourages the author in the arduous act of creation.” The passage of this legislation is said to show Congress’s “belief that the art covered by the Act ‘meet[s] a special societal need, and [its] protection and preservation serves an important public interest.’”

Notwithstanding these lofty statements about artistic worth, honor and encouraging creation, VARA is a …

International Law And The Future Of Peace, Diane Marie Amann

Scholarly Works

These remarks, delivered at the April 4, 2013, luncheon of the American Society of International Law Women in International Law Interest Group, reflects on contributions of Jane Addams and other members of the early 20th C. peace movement as a means to explore law and practice related to the contemporary use of force and armed conflict.

It’S Time For Postal Banking, Mehrsa Baradaran

Scholarly Works

This essay makes the case that the USPS is in a unique position to provide much-needed financial services for the large population of unbanked or underbanked Americans. First, the post office can offer credit at lower rates than fringe lenders by taking advantage of economies of scale as well as their position in the federal bureaucracy. Second, they already have branches in many low-income neighborhoods that have been long deserted by commercial banks. And, third, people at every level of society, including the unbanked, have a level of familiarity and comfort with the post office that they do not have …

Ignorance, Harm, And The Regulation Of Performance-Enhancing Substances, Lisa Milot

Scholarly Works

There is a disconnect between how legal and sporting authorities, on the one hand, and many elite athletes, on the other, view the use of performance-enhancing substances. While official and popular narratives portray the use of these substances as isolated examples of deviant behavior, to the elite athletes who daily push their bodies beyond societally normal limits of pain and risk, enhancement is oftentimes an accepted part of the job. As a result, efforts to regulate and detect athletes’ use of these substances have consistently captured only a small fraction of the use that exists.

This Article describes the ways …

From Contract To Legislation: The Logic Of Modern International Lawmaking, Timothy L. Meyer

Scholarly Works

The future of international lawmaking is in peril. Both trade and climate negotiations have failed to produce a multilateral agreement since the mid-1990s, while the U.N. Security Council has been unable to comprehensively respond to the humanitarian crisis in Syria. In response to multilateralism’s retreat, many prominent commentators have called for international institutions to be given the power to bind holdout states — often rising or reluctant powers such as China and the United States — without their consent. In short, these proposals envision international law traveling the road taken by federal systems such as the United States and the …

The Stealth Press Clause, Sonja R. West

Scholarly Works

In this piece, however, I pause to push back on the conventional wisdom that the Court actually has refused to view the press as constitutionally special. Contrary to what we have been told, I contend the Supreme Court has indeed recognized the press as constitutionally unique from nonpress speakers. The justices have done so implicitly and often in dicta, but nonetheless they have continually and repeatedly treated the press differently. While rarely acknowledged explicitly, this "Stealth Press Clause" has been hard at work carving out special protections for the press,guiding the Court's analysis and offering valuable insights into how we …

Disaggregative Mechanisms: The New Frontier Of Mass-Claims Resolution Without Class Actions, Jaime Dodge

Scholarly Works

Aggregation has long been viewed as the primary if not sole vehicle for mass claims resolution. For a half-century, scholars have consistently viewed the consolidated litigation of similar claims through joinder, class actions and more recently multi-district litigation as the only mechanism for efficiently resolving mass claims. In this Article, I challenge that long-standing and fundamental conception. The Article seeks to reconceptualize our understanding of mass claims resolution, arguing that we are witnessing the birth of a second, unexplored branch of mass claims resolution mechanisms — which I term “disaggregative” dispute resolution systems because they lack the traditional aggregation of …

Remanding Multidistrict Litigation, Elizabeth Chamblee Burch

Scholarly Works

Multidistrict litigation has frequently been described as a “black hole” because transfer is typically a one-way ticket. The numbers lend truth to this proposition. As of 2010, the Judicial Panel on Multidistrict Litigation remanded only 3.425% of cases to their original districts. That number dwindled to 3.1% in 2012, and to a scant 2.9% in 2013. Retaining cases in hopes of forcing a global settlement can cause a constellation of complications. These concerns range from procedural justice issues over selecting a forum and correcting error, to substantive concerns about fidelity to state laws, to undermining democratic participation ideals fulfilled through …

Why Wynne Should Win, Dan T. Coenen

Scholarly Works

In Maryland State Comptroller of the Treasury v. Wynne, the Court could reshape core features of dormant Commerce Clause law. Maryland’s theory in the case is that it can lay an income tax on every penny of an individual resident’s income even if some of that income is earned entirely outside the state and therefore, in keeping with standard state practice, already taxed elsewhere. On its face, this approach exposes interstate income earners to overlapping income taxation. Maryland’s scheme thus violates a cardinal principle of dormant Commerce Clause law, “forbidding” state laws that expose interstate commerce “to the risk …

The Great Writ In The Peach State: Georgia Habeas Corpus, 1865-1965, Donald E. Wilkes Jr.

Scholarly Works

There is a plenitude of scholarly writing on the Great Writ of Habeas Corpus, which is universally recognized as "one of the decisively differentiating factors between our democracy and totalitarian governments."' The overwhelming majority of these scholarly publications are concerned with the writ of habeas corpus as administered in the federal court system. There are far fewer scholarly publications on the writ of habeas corpus as administered in the courts of the State of Georgia, and most of these works are concerned with Georgia habeas corpus as a state postconviction remedy, past and present. Only one scholarly piece, a law …

Encouraging Victims: Responding To A Recent Study Of Battered Women Who Commit Crimes, Andrea L. Dennis, Carol E. Jordan

Scholarly Works

The article discusses evolution of social services and legal remedies for domestic violence. It reviews research done on domestic violence victims to find out factors that prevent victims from reporting the incident. It offers tips on how to motivate victims to report the incidence of domestic violence. It offers a new proposal targeting women who both suffer violence and have a criminal history.

Teaching “The Wire”: Crime, Evidence, And Kids, Andrea L. Dennis

Scholarly Works

I have a confession: I have only watched Season 1 of The Wire, and it has been many years since I did that. Thus, both my knowledge and pedagogical use of the show are limited. What explanation can I offer for my failings? I am a Maryland native with family who resides in Baltimore City, or Charm City as it is affectionately called. I worked for several years as an assistant federal public defender in Baltimore City. Over time, I have seen the city evolve, and I have seen it chew up and spit out many good people and some …

First Amendment Neighbors, Sonja R. West

Scholarly Works

An abdication of the Press Clause reflects the most basic of analytical errors: It treats the text of the Press Clause as redundant and ignores the specialized functions that the Framers meant for the Press Clause to play. Failing to give the Press Clause constitutional recognition by declaring it too difficult to interpret or by dismissing it as "mere surplusage" is utterly at odds with our constitutional traditions. The Religion Clauses provide an example on how to give the text of the Press Clause true meaning.

In interpreting the Religion Clauses, the Supreme Court has taken a different attitude than …

The Effect Of The Jobs Act On Underwriting Spreads, Usha Rodrigues

Scholarly Works

U.S. underwriting fees, or spreads, have somewhat inexplicably clustered around 7% for years, a phenomenon that some have suggested evidences implicit collusion. The goal of Title I the JOBS Act of 2012 was to make going public easier for smaller firms; certain provisions specifically should make the underwriters’ task less risky, and thus less expensive. Presuming these provisions are effective, then one would predict that underwriting spreads would decrease as the costs to the underwriter for a public offering declined. Admittedly the prior presumption is a big one: it may be that the JOBS Act reforms were largely ineffective, and …

In-Sourcing Corporate Responsibility For Enforcement Of The Foreign Corrupt Practices Act, Larry D. Thompson

Scholarly Works

In this article I first review our nation's long-standing and active aversion to corporate corruption overseas, as principally embodied in the Foreign Corrupt Practices Act. I then explain how achievement of the FCPA's goals is undermined by the uncertainty in current federal enforcement policies and the consequent ambivalence toward self disclosure exhibited by multinational corporations. Finally, I argue that the only realistic way to make up the shortcomings in FCPA enforcement that flow from the Justice Department's limited resources is to motivate corporations themselves to police corruption in their foreign subsidiaries by giving them a concrete incentive in the form …

The Problem Of Abusive Related-Partner Allocations, Gregg D. Polsky, Emily Cauble

Scholarly Works

This Article highlights a flaw in the existing rules regarding partnership tax allocations that has not yet received sufficient attention by existing literature. Namely, the partnership tax allocation rules are implicitly premised on the assumption that partners are unrelated and, thus, transact with each other at arm’s length. As a result, related partners can and do devise tax allocation schemes that exploit the gap in the current partnership tax allocation rules to achieve unwarranted tax savings.

This Article proposes to end this abuse by disallowing special allocations among related partners. Under the proposal, allocations among related partners would be required …

Corporate Governance Theory And Review Of Board Decisions, Christopher M. Bruner

Scholarly Works

No abstract provided.

Review Essay: Reading The Dream Machine: The Untold Story Of The Notorious V-22 Osprey, By Richard Whittle, In Light Of The Defense Acquisition Performance Study, Steven L. Schooner, Nathaniel E. Castellano

GW Law Faculty Publications & Other Works

This review commends The Dream Machine to a broad range of readers, including public contracts attorneys, acquisition policy officials, contracts professionals, program managers, government procurement law students, as well as consumers of military history. It’s a remarkable story told with style. The review juxtapose some aspects of the author’s exhaustive case study of this seemingly problematic program against the Defense Department’s nascent effort to assess the performance of the Defense Acquisition System. We make no secret of our belief that DoD’s acquisition performance assessment has the potential to become one of the most significant recent developments in defense acquisition. Among …

Inconsistent Jury Verdicts, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

This article examines United States v. Moran-Toala, 726 F.3d 334 (2d Cir. 2013), to illustrate what happens when a trial judge explicitly instructs a jury that its verdict need not be consistent.

Fairness Over Deference: The Shifting Landscape Of Creditors Rights To Claims And Debtor Protection Regarding The Issuance Of Form 1099-C, Patrick Christensen

Bankruptcy Research Library

(Excerpt)

Issues surrounding the discharge of indebtedness with regard to Form 1099-C filings have recently become a difficult issue for bankruptcy courts. When a debtor cannot afford to pay a creditor an outstanding debt, a Form 1099-C is utilized to “discharge the debt.” The resulting cancellation is then reportable for tax purposes for both the debtor (as cancellation-of-debt income – “COD income”) and the creditor (as a deduction). Form 1099-C filings are made by creditors and issued to each “debtor for whom . . . $600 or more of a debt owed” had been cancelled.

Courts have had to consider …

Preclusive Effect Of Pre-Petition State Court Judgments In Nondischargeability Proceedings, Kelly E. Porcelli

Bankruptcy Research Library

(Excerpt)

A central purpose of the Bankruptcy Code is to provide a “fresh start” for the “honest but unfortunate debtor.” Subject to various exceptions, section 727 of the Bankruptcy Code provides that the court shall grant the debtor a discharge, which permanently enjoins the debtor’s creditors from attempting to collect any prepetition debts. This “fresh start” policy is not absolute, however, and section 523 of the Bankruptcy Code lists various types of debts that are nondischargeable. Under section 523(a)(2), (4), and (6), a debtor will not be discharged from debts which are “(2) . . . obtained by-- (A) false …

United States Assistant Attorney General For National Security John P. Carlin Delivers Remarks At The American University Business Law Review 2014 Symposium, John P. Carlin

American University Business Law Review

No abstract provided.

Stare Indecisis: The Federal Circuit's En Banc Battle Against Itself And Business In Lighting Ballast Control, Llc V. Philips Electronics North America Corp., Ronny Valdes

American University Business Law Review

No abstract provided.