Law Commons^™

Duty To Rescue? Exploring Legal Analysis Through The Lens Of Photojournalists’ Storytelling Dilemmas, Iselin Magdalene Gambert

GW Law Faculty Publications & Other Works

In depicting scenes of tragedy, what happens when photojournalists become the story? Do photojournalists have a duty to rescue those they photograph? Should they? This article will use a series of iconic images – and the stories of the photojournalists behind the camera – to illustrate how exploring these questions can be a provocative vehicle through which to engage new law students in legal writing and analysis. The article focuses on an exercise that centers around a fictional “Duty to Rescue” statute modeled after European statutes of the same kind. The exercise is anchored by four images – three still …

Green Subsidies And The Wto, Steve Charnovitz

GW Law Faculty Publications & Other Works

This paper provides a detailed explanation how the law of the World Trade Organization regulates environmental subsidies with a focus on renewable energy subsidies. The paper begins by discussing the economic justifications for such subsidies and the criticisms of them and then gives examples of different categories of subsidies. Next the paper provides an overview of the relevant WTO rules and caselaw, including the recent Canada-Renewable Energy case. The paper also makes specific recommendations for how WTO law can be improved, and discusses the existing literature discussing reform proposals. The study further finds that because of a lack of clarity …

Informing The Debate About Sexual Assault In The Military Services: Is The Department Of Defense Its Own Worst Enemy?, Lisa M. Schenck

GW Law Faculty Publications & Other Works

In 2013, the Department of Defense (DoD) published its Annual Report on Sexual Assault in the Military Fiscal Year (FY) 2012, reflecting an increase in the number of sexual assaults on military personnel (extrapolated from survey responses) from 19,000 in FY 2011 to 26,000 in FY 2012. The report also provided that in FY 2012, 302 sexual assault courts-martial occurred with only 238 military personnel convicted of sexual assaults committed on military victims, resulting in an alleged conviction rate of less than 1%. Using inflammatory language and misleading statistics, some attacked the prosecution and conviction rates in the military services. …

Sex Offenses Under Military Law: Will The Recent Changes In The Uniform Code Of Military Justice (Ucmj) Re-Traumatize Sexual Assault Survivors In The Courtroom?, Lisa M. Schenck

GW Law Faculty Publications & Other Works

In 2013, the President, Secretary of Defense, and members of Congress responded with shock and outrage to perceptions of increased sex assaults committed by military personnel upon other military personnel. Politicians are considering a variety of changes to substantive and procedural criminal law to make prosecution of such offenses more effective. This Article evaluates substantive military criminal law, UCMJ art. 120, 10 U.S.C. § 920, and Military Rules of Evidence 404(a) and 405(c). Drawing on lessons learned from state and federal laws, the Article then makes recommendations regarding statutory changes in military criminal sexual assault and procedural statutes. Specifically, the …

The Failure Of Originalism In Preserving Constitutional Rights To Civil Jury Trial, Renée Lettow Lerner

GW Law Faculty Publications & Other Works

The Federal Bill of Rights and state constitutions rely heavily on procedural protections, especially jury rights. Supporters of these rights at the founding praised the jury in extravagant terms, and many members of the legal profession continue to do so today. Yet civil and criminal jury trials are vanishing in the United States. The disappearance of the civil jury presents a puzzle because the Seventh Amendment and state constitutional rights require that civil jury trial be “preserved” or “remain inviolate.”

Scholarship on the history of constitutional rights to civil jury trial has tended to focus exclusively on the Seventh Amendment, …

Book Review: The Invisible Soldiers: How America Outsourced Our Security By Ann Hagedorn, Steven L. Schooner

GW Law Faculty Publications & Other Works

This review discusses Ann Hagedorn's book, which addresses the post-millennial proliferation of arms-bearing contractors that has roiled the human rights community and catalyzed a global conversation about the nature and future of modern warfare. Hagedorn’s perspective and insights on arms bearing contractors, democracies, and empires—intensely personal, yet thoughtfully cognizant of policy, political theory, and philosophy—should interest readers new to the field, as well as those well versed in the issues. Outsourcing the use of force is sufficiently important to the future of democratic states that this book—as well as the growing corpus of literature it adds to—merits serious contemplation.

Probate Law Meets The Digital Age, Naomi R. Cahn

GW Law Faculty Publications & Other Works

This Article explores the impact of federal law on a state fiduciary’s management of digital assets. It focuses on the lessons from the Stored Communications Act (“SCA”), initially enacted in 1986 as one part of the Electronic Communications Privacy Act. Although Congress designed the SCA to respond to concerns that Internet privacy posed new dilemmas with respect to application of the Fourth Amendment’s privacy protections, the drafters did not explicitly consider how the SCA might affect property management and distribution. The resulting uncertainty affects anyone with an email account.

While existing trusts and estates laws could legitimately be interpreted to …

(E)Racing Trayvon Martin, Cynthia Lee

GW Law Faculty Publications & Other Works

In this essay, Cynthia Lee celebrates the 25th anniversary of Critical Race Theory (CRT) by writing about the pitfalls of the ideal of colorblindness. She starts by analyzing Devon Carbado's seminal article on CRT and the Fourth Amendment, (E)Racing the Fourth Amendment. She focuses on Carbado's critique of Justice Sandra Day O'Connor's embrace of colorblindness in Florida v. Bostick, the case in which the Supreme Court modified the test for a seizure of the person. Lee uses Carbado's article as a springboard for critiquing the embrace of colorblindness by legal decision-makers involved in George Zimmerman's 2013 murder trial. Zimmerman …

Narrow Banking As A Structural Remedy For The Problem Of Systemic Risk: A Comment On Professor Schwarcz's Ring-Fencing, Arthur E. Wilmarth Jr.

GW Law Faculty Publications & Other Works

In a recent article, Professor Steven Schwarcz describes the concept of "ring-fencing" as a "potential regulatory solution to problems in banking, finance, public utilities, and insurance." Ring-fencing has gained particular prominence in recent years as a strategy for limiting the systemic risk of large financial conglomerates (also known as "universal banks"). Professor Schwarcz’s article describes several ring-fencing plans that have been adopted or proposed in the United States, the United Kingdom, and the European Union.

This Comment argues that "narrow banking" is a highly promising ring-fencing remedy for the risks created by universal banks. As the Comment explains, narrow banking …

Why Who Does What Matters: Governmental Design, Agency Performance, The Cfpb And Ppaca, William E. Kovacic

GW Law Faculty Publications & Other Works

How should the federal government be organized – and who (i.e., which departments, agencies, bureaus, and commissions) should do what? The issue is not new: President James Madison addressedgovernmental organization in his 1812 State of the Union Address, and in the last century, it is the rare President that does not propose to reorganize some part of the federal government. Indeed, on numerous occasions during the past century, virtually every part of the federal government has been repeatedly reorganized and reconfigured. In previous work, we examined the dynamics that influencethe assignment of regulatory duties to an agency, how those dynamics …

Musical Work Copyright For The Era Of Digital Sound Technology: Looking Beyond Composition And Performance, Robert Brauneis

GW Law Faculty Publications & Other Works

For over 150 years, federal copyright law in the United States reflected and reinforced the model ofmusic as a two-stage art of composition and performance. Copyright protected scores, the stable, visually perceptible result of the deliberative activity of composition. It did not protect performances, theevanescent, unrepeatable, purely aural realizations of scores. Even as protection was extended tomusical sound recordings, copyright law has maintained a strong distinction between composition andperformance. In the last several decades, however, developments in sound technologies and their uses by musicians and listeners have substantially undermined that distinction. Written notation often no longer figures in any stage …

Merger Control Procedures And Institutions: A Comparison Of The Eu And Us Practice, William E. Kovacic

GW Law Faculty Publications & Other Works

The objective of this paper is to discuss and compare the role that different constituencies play in US andEU procedures for merger control. We describe the main constituencies (both internal and external) involved in merger control in both jurisdictions and discuss how a typical merger case would be handled under these procedures. At each stage, we consider how the procedure unfolds, which parties are involved, and how they can affect the procedure. Our discussion reveals a very different ecology. EU andUS procedures differ in terms of their basic design and in terms of the procedures that are naturally associated with …

"The Evolution Of Employment Discrimination Law: Changed Doctrine For Changed Social Conditions ", Michael Selmi

GW Law Faculty Publications & Other Works

Times change, and when they do, the law must as well. Much of the most important employment discrimination case law was established in the 1970s during an era when discrimination was both overt and pervasive. Moving forward forty years, discrimination has receded dramatically and is no longer seen as a default explanation for workplace decisions or statistical imbalances in a workforce. At the same time, the discrimination that remains is more complex, more subtle in nature and more difficult to identify. This article explores how the Supreme Court has navigated the declining but more complex nature of employment discrimination. In …

Contemporary Trusts And Estates - An Experiential Approach, Naomi R. Cahn, Jerome Borison, Susan N. Gary, Paula A. Monopoli

GW Law Faculty Publications & Other Works

In this essay in a special issue dedicated to teaching trusts and estates, the co-authors of Contemporary Trusts & Estates: An Experiential Approach (2d. ed. Aspen 2014) reflect on how the teaching of trusts and estates can integrate policy, practice, doctrine, and centuries of tradition. They describe the genesis of their problem-based casebook and the influence of the Carnegie Report on their choice of pedagogic framework. Each of the co-authors embraced the fundamental principles advocated by the Carnegie Report, which counsels that legal education should integrate "theoretical and practical legal knowledge and professional identity." This essay goes on to outline …

Look Up And Around: Musings On Mentors, Role Models, And Professionalism, Steven L. Schooner

GW Law Faculty Publications & Other Works

In response to NCMA's request that its Board of Advisors explain how we ended up as leaders in contract management, this article offers a rather simple over-arching suggestion for successful professionals andfuture leaders: look up and around. The article encourages readers to identify mentors, embrace the strengths of their role models, and open themselves up to learn from others, evolve, and grow. The article discusses, among other things, education, networking, professional development (and, of course, writing),and the power of optimism.

The Trans Panic Defense: Masculinity, Heteronormativity, And The Murder Of Transgender Women, Cynthia Lee, Peter Kar Yu Kwan

GW Law Faculty Publications & Other Works

When a heterosexual man is charged with murdering a transgender woman with whom he has been sexually intimate, an increasingly common defense strategy is to assert what has been called the trans panic defense. The defendant claiming trans panic will say that his discovery that the victim was biologically male (when he thought the victim was biologically female) provoked him into a heat of passion and caused him to lose his self-control. If the jury finds that the defendant was actually and reasonably provoked, it can acquit him of murder and find him guilty of the lesser offense of voluntary …

Indiana Journal Of Law And Social Equality, Michael Selmi

GW Law Faculty Publications & Other Works

This essay reviews the Obama Administration’s civil rights record during its first Administration, with a particular focus on theCivil Rights Division of the Department of Justice and the Equal Employment Opportunity Commission (“EEOC”). The review finds that although the Obama Administration has generally been supportive of progressive causes, particularly in the Supreme Court and among issues relating to gay men and lesbians, its enforcement activities have generally been quite limited. On a quantitative basis, the Obama Administration’s civil rights enforcement typically fall at the same or below levels of the prior BushAdministration, and with a few exceptions (mortgage discrimination and …

In The Civic Republic: Crime, The Inner City, And The Democracy Of Arms—Being A Disquisition On The Revival Of The Militia At Large, Robert J. Cottrol, Raymond T. Diamond

GW Law Faculty Publications & Other Works

This Article examines the modern utility of the Second Amendment’s guarantee of “the right to keep and bear arms” in light of the phenomenon of modern crime, particularly black-on-black violence in urban America. Although many advocates of gun control have argued that crime in modern cities is a reason for modifying or severely truncating the right to have arms, the Authors argue that the right to have arms and the Second Amendment’s notion of a universal militia can be the basis of a new partnership between police and citizens in urban America. This new partnership can, if properly developed, be …

Second Amendment, Constitutional Dysfunction Or Necessary Safeguard?, Robert J. Cottrol

GW Law Faculty Publications & Other Works

This Essay was delivered at the Boston University School of Law Symposium titled “America’s Political Dysfunction: Constitutional Connections, Causes, and Cures.” The Essay challenges the assumption that the Second Amendment historically has provided a barrier to a desirable policy result: radical gun control or gun prohibition. It also challenges the assumption that such a policy is indeed desirable. The Essay traces the history of judicial engagement with the Second Amendment, including the Supreme Court’s most recent pronouncement recognizing the right to bear arms as an individual right in Heller and McDonald, and lower federal courts’ subsequent application of this right. …

From Legal Pluralism To Global Legal Pluralism, Paul Schiff Berman

GW Law Faculty Publications & Other Works

Legal pluralists have long recognized that societies consist of multiple overlapping normative communities. These communities are sometimes state-based but sometimes not, and they are sometimes formal, official, and governmental, but again sometimes they are not. Scholars studying interactions among these multiple communities have often used the term “legal pluralism” to describe the inevitable intermingling of these normative systems.

In the past decade or so, a new application of pluralist insights has emerged in the international and transnational realm. This new legal pluralism research was born in the decades following the collapse of the bi-polar Cold War order in 1989. During …

A Concise Guide To Using Dictionaries From The Founding Era To Determine The Original Meaning Of The Constitution, Gregory E. Maggs

GW Law Faculty Publications & Other Works

This Article explains how dictionaries published in the Founding Era may provide evidence of the original meaning of the Constitution. In addition, the Article identifies and discusses six potential problems with relying on definitions from these dictionaries, and cautions that these potential problems must be considered when using Founding Era dictionaries either to make claims about the Constitution’s original meaning or to evaluate claims about original meaning made by others. Finally, the Article includes an Appendix describing nine English language dictionaries and four legal dictionaries from the Founding Era that the Supreme Court has cited in constitutional cases, and indicates …

A Concise Guide To Using Dictionaries From The Founding Era To Determine The Original Meaning Of The Constitution, Gregory E. Maggs

GW Law Faculty Publications & Other Works

This Article explains how dictionaries published in the Founding Era may provide evidence of the original meaning of the Constitution. In addition, the Article identifies and discusses six potential problems with relying on definitions from these dictionaries, and cautions that these potential problems must be considered when using Founding Era dictionaries either to make claims about the Constitution’s original meaning or to evaluate claims about original meaning made by others. Finally, the Article includes an Appendix describing nine English language dictionaries and four legal dictionaries from the Founding Era that the Supreme Court has cited in constitutional cases, and indicates …

Two Myths About The Alien Tort Statute, Bradford R. Clark, Anthony J. Bellia Jr.

GW Law Faculty Publications & Other Works

In Kiobel v. Royal Dutch Petroleum Co., the Supreme Court applied the presumption against extraterritorial application of U.S. law to hold that the Alien Tort Statute (ATS) did not encompass a claim between aliens for misconduct that occurred in another nation. Without much elaboration, the Court stated that the ATS only encompasses claims that “touch and concern the territory of the United States...with sufficient force to displace the presumption.” As it did in Sosa v. Alvarez-Machain, the Kiobel Court purported to rest its decision on the original public meaning of the ATS when enacted in 1789. The Court, however, misperceived …

The European Procurement Directives And The Transatlantic Trade & Investment Partnership (T-Tip): Advancing U.S. - European Trade And Cooperation In Procurement, Christopher R. Yukins

GW Law Faculty Publications & Other Works

Regulatory efforts on both sides of the Atlantic, in anti-corruption and procurement, are become more interdependent, as the two systems, U.S. and European, evolve in parallel. That convergence continued as the European Union finalized its new directives on procurement, and the United States and Europe moved forward in negotiating a comprehensive free trade agreement, the Transatlantic Trade and Investment Partnership (T-TIP), which would (among other things) address barriers to trade in procurement. This piece reviews the T-TIP agreement’s potential impact on procurement, in the near and long term. The European T-TIP negotiators are likely to demand greater access to sub-central …

The People's Justice?, David Fontana

GW Law Faculty Publications & Other Works

Over the past few decades, the liberal Justices on the Supreme Court have made their most notable extrajudicial communications about the Constitution in academic venues discussing academic issues. This has limited their appeal to broader audiences. In this Essay -- written for a symposium at Yale Law School on Justice Sotomayor's first five years on the Court -- David Fontana explores the distinctive path that Justice Sotomayor has pursued. Justice Sotomayor has spoken to academic audiences, as past liberal Justices have. What is most notable about JusticeSotomayor, though, is that she has also appeared in locations and addressed issues that …

Proper And Improper Use Of Other Act Evidence, Stephen A. Saltzburg

GW Law Faculty Publications & Other Works

This article examines a case, United States v. Richards, 719 F.3d 746 (7th Cir. 2013), to illustrate how a prosecutor succeeded in having other act evidence admitted, obtained a conviction, and lost it on appeal. The appellate court ruled that the prosecutor erred in making a propensity argument in violation of Federal Rule of Evidence 404(b).

The Beginning Of The End Of Internet Freedom, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

Although the Internet was initially viewed as a medium for expression in which censorship would be impossible to implement, recent developments suggest exactly the opposite. Countries around the world--democracies as well as dictatorships--have implemented nationwide filtering systems that are changing the shape of Internet freedom. In addition to usual suspects like China, liberal democracies such as the United Kingdom and Australia have taken steps to implement nationwide Internet filtering regimes. In 2013, United Kingdom Prime Minister David Cameron announced a plan to require mandatory “family friendly” default filtering of all Internet access by the end of 2014. While such Internet …

Keeping The Internet Free In The Americas, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

To preserve and protect the Internet as a forum for the uninhibited, robust, and wide-open exchange of ideas and information in the Americas, governments must take active steps to facilitate such free speech values. The relationship between governments and Internet service providers is of pre-eminent importance in this regard, as ISPs are in the position to be the facilitators of the free flow of information and ideas. On the one hand, ISPs should not be shackled with intermediary liability for hosting harmful content. On the other hand, ISPs should not be granted the discretion to restrict communications flowing through their …

Denying The Significance Of Race, Cynthia Lee

GW Law Faculty Publications & Other Works

In this book chapter, published in TRAYVON MARTIN, RACE, AND AMERICAN JUSTICE: WRITING WRONG (Sense Publishers 2014), Cynthia Lee analyzes the George Zimmerman trial from a critical race perspective. She analyzes why all the major legal decision makers associated with the Trayvon Martin case (judge, prosecution and defense team) were so eager to deny the significance of race. She posits that they either sincerely believed the case had nothing to do with race or thought it improper or strategically disadvantageous to acknowledge that race was relevant. The judge wanted to run a colorblind trial. The defense did not want the …

§ 9:9 Authenticating Email, Social Media, Web Pages, Text Messages, Instant Messaging, Electronic Signatures, Laird Kirkpatrick

GW Law Faculty Publications & Other Works

A particularly difficult evidentiary problem facing courts today is the proper standard for the authentication of electronic evidence or social media, such as emails, web pages, text messages, instant messaging and electronic signatures. This article analyzes the court decisions addressing these issues.