Law Commons^™

Book Review: Lessons In Censorship: How Schools And Courts Subvert Students’ First Amendment Rights (Catherine J. Ross), Naomi R. Cahn

GW Law Faculty Publications & Other Works

This book review of Catherine Ross's Lessons in Censorship places issues involving the free speech rights of public school students in the context of family law.

The Clean Power Plan: Testing The Limits Of Administrative Law And The Electric Grid, Emily Hammond, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

The Environmental Protection Agency’s (EPA) Clean Power Plan (CPP) is one of the most controversial and highest-stake rules ever issued by any agency. Proponents of the rule maintain that it is essential to mitigating the potentially devastating effects of climate change. Opponents, by contrast, argue that it is unlikely to be effective for its intended purpose and that it jeopardizes the reliability of the electricity grid. We are in the awkward position of agreeing with both the proponents and the opponents of the CPP. We want the rule to succeed in accomplishing its intended purpose but we fear that it …

Consume Or Invest: What Do/Should Agency Leaders Maximize?, William E. Kovacic, David A. Hyman

GW Law Faculty Publications & Other Works

In the regulatory state, agency leaders face a fundamental choice: should they “consume” or should they “invest?” “Consume” means launching high profile cases and rule-making. “Invest” means developing and nurturing the necessary infrastructure for the agency to handle whatever the future may bring. The former brings headlines, while the latter will be completely ignored. Unsurprisingly, consumption is routinely prioritized, and investment is deferred, downgraded, or overlooked entirely. This essay outlines the incentives for agency leadership to behave in this way and explores the resulting agency costs (pun intended). The U.S. Federal Trade Commission’s health care portfolio provides a useful case …

Can't Anyone Here Play This Game? Judging The Ftc's Critics, David A. Hyman, William E. Kovacic

GW Law Faculty Publications & Other Works

The conventional wisdom is that the FTC was the governmental equivalent of a leper colony prior to 1969, and its credibility and reputation were restored only by the adoption of the wise recommendations in the 1969 ABA Report. There is no question that the FTC deserves plenty of criticism for its pre-1969 performance. It is also beyond doubt that there has been a dramatic turn-around in the intervening forty-five years, as the FTC adopted the recommendations in the 1969 Report. But, before we simply genuflect at the wisdom of those responsible for the ABA Report and the inherent virtue of …

A New Approach To Voir Dire On Racial Bias, Cynthia Lee

GW Law Faculty Publications & Other Works

One question that attorneys in racially charged cases face is whether to attempt to conduct voir dire into racial bias. Voir dire is the process of questioning prospective jurors to ensure that those chosen to sit on the jury will be impartial and unbiased. Whether it is a good idea from a trial strategy perspective to voir dire prospective jurors when an attorney believes racial bias may have played a role in the events underlying the case is a question over which reasonable minds can disagree. Perhaps the most common view is that reflected by Albert Alschuler who suggested twenty-five …

Gpa Accession: Lessons Learned On The Strengths And Weaknesses Of The Wto Government Procurement Agreement, Christopher R. Yukins, Johannes S. Schnitzer

GW Law Faculty Publications & Other Works

Many member nations of the World Trade Organization (WTO) have joined the Government Procurement Agreement (GPA), a plurilateral agreement which aims to open public procurement markets. Joining the agreement reflects a commitment to international free trade, and to the rule of law in public procurement. A revised version of the GPA entered into force in 2014, and incorporated many amendments intended to make it easier for developing nations join the GPA. Among other things, the revised GPA now allows developing nations acceding to the GPA to open their public procurement markets more slowly, various transitional measures. This article reviews those …

The Puzzle Of Alfarabi's Parallel Works, Miriam Galston

GW Law Faculty Publications & Other Works

Scholars disagree about the correct interpretation of Alfarabi’s Political Regime and Virtuous City, treatises that have striking similarities, yet notable differences. For some, the treatises encapsulate Alfarabi’s philosophy; for others, they express only politically salutary opinions. Both interpretations fail to explain why he wrote parallel works. If both reflect Alfarabi’s genuine philosophic doctrines, why did he compose separate but parallel treatises, both written when his philosophy was mature? Alternatively, if the treatises are political or rhetorical, why did Alfarabi compose two versions, and why did he choose these two accounts rather than others? To answer these questions, I discuss several …

Constitutional Law: A Contemporary Approach, Gregory E. Maggs, Peter J. Smith

GW Law Faculty Publications & Other Works

The third edition of the casebook, which is suitable either for a one- or two-semester course, strives to make constitutional law easily teachable and readily accessible for students. The authors have selected the cases very carefully and provided extensive excerpts of the opinions so that students get a good sense of the Court's reasoning. Text boxes call the students' attention to important aspects of each opinion, and the book is filled with introductions, points for discussion, hypotheticals, and executive summaries. The authors present a diversity of views on every subject, and, reflecting some of their own disagreements, the authors have …

Transforming Document Recordation At The United States Copyright Office, Robert Brauneis

GW Law Faculty Publications & Other Works

For over 140 years, federal law has provided for recording of documents pertaining to copyright in one central location, at the Copyright Office and, before the Copyright Office was created as a separate unit, at the Library of Congress. Over that time, the copyright recordation system has supported a market for interests in and use of works of authorship by lowering the cost of obtaining information about ownership and by reducing unavoidable risks that threaten ownership. Yet the recordation system has not kept up with developments in technology and in business practices. This report, prepared while the author was serving …

Forget About It? Harmonizing European And American Protections For Privacy, Free Speech, And Due Process, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

No abstract provided.

Parsing The Visual Rhetoric Of Office Dress Codes: A Two-Step Process To Increase Inclusivity And Professionalism In Legal-Workplace Fashion, Karen Thornton

GW Law Faculty Publications & Other Works

Legal employers expect attorneys in their offices to use the ethos of personal appearance to project an image of competence to clients. This expectation is largely unspoken, however, and polling and anecdotal evidence alike show that in today’s workplace, employers are frustrated with the level of professionalism demonstrated by new employees. The goal of this article is to encourage open conversations about workplace fashion as it relates to an attorney’s professional identity. It is in both the employer’s and employee’s interests to clarify employer expectations and empower new members of the legal profession to adopt a personal sense of style …

'In The Interests Of Justice' As The New Test To Exclude Relevant Evidence In Singapore: Anb V Anc [2014] Sghc 172; Wan Lai Ting V Kea Kah Kim [2014] Sghc 180, Siyuan Chen

Research Collection Yong Pung How School Of Law

In 2012, Singapore’s venerable Evidence Act (EA), which is based on Stephen’s Indian Evidence Act of 1872, underwent major amendments for only the third time in 120 years. Previously, conflicting case law had created long-standing confusion as to whether the Singapore courts possessed any discretion to exclude evidence even when was found relevant under the EA. The main reason driving this jurisprudential inconsistency was that while the relevancy provisions in the EA were meant to provide exhaustive definitions of admissibility, Stephen’s then-revolutionary ‘inclusionary’ approach to relevance was simply at odds with modern conceptions of relevance and modern litigation practice. Thus, …

Discretionary Death Penalty For Convicted Drug Couriers In Singapore: Reflections On High Jurisprudence Thus Far, Siyuan Chen

Research Collection Yong Pung How School Of Law

For decades, drug trafficking was a serious offence in Singapore potentially punishable by mandatory death. In 2012, Singapore’s Misuse of Drugs Act (MDA) was amended to give the courts sentencing discretion if the accused can first prove that he was merely a courier, and to better reflect the moral culpability accorded as between mules and kingpins in the hierarchy of drug syndicates. However, there are some complications in proving this. Not only must the accused show that he was merely a courier, he must also show that he had substantively assisted the authorities in disrupting drugtrafficking activities in Singapore. This …

Equality And Singapore’S First Constitutional Challenges To The Criminalization Of Male Homosexual Conduct, Jack Tsen-Ta Lee

Research Collection Yong Pung How School Of Law

In 2013, i Lim Meng Suang and Kenneth Chee Mun-Leon v Attorney-General and Tan Eng Hong v Attorney-General, the High Court of Singapore delivered the first judgments in the jurisdiction considering the constitutionality of section 377A of the Penal Code, which criminalizes acts of gross indecency between two men, whether they occur in public or private. The Court ruled that the provision was not inconsistent with the guarantees of equality before the law and equal protection of the law stated in Article 12(1) of the Constitution of the Republic of Singapore. The result was upheld in 2014 by the Court …

The Regulation Of The Recreational Use Of “Drones” For Aerial Photography And Videography: Comparing Singapore’S Unmanned Aircraft Act With Other Legislation, Siyuan Chen

Research Collection Yong Pung How School Of Law

In the last few years, there has been a dramatic increase in the use of remote-controlled copters or “drones” by recreational users to capture aerial photographs and videos on an unprecedented scale. The convergence of cutting-edge technological developments in gyroscopic gimbals, long-range wireless transmissions, GPS-enabled stabilisation and flightpath-preprogramming, first-person-views, and compact digital imaging has led to the proliferation of these camera-carrying devices that even hobbyists can pilot with reasonable safety. However, there has been a consistent stream of public concern relating to issues of safety, privacy, and disruption of commercial interests. Lost in the paranoid cacophony is a question that …

"If You Is White, You's Alright....": Stories About Colorism In America, Kimberly Jade Norwood

Scholarship@WashULaw

This Article examines the inefficiencies of Missouri municipal courts that came into sharp focus following the killing of Michael Brown by Officer Darren Wilson in Ferguson, Missouri. Norwood details and expands on her lone dissent in the Final Report of the Municipal Division Work Group—a group created by the Missouri Supreme Court to address the alleged abuses of black and poor residents in Missouri. Norwood argues for consolidating failing municipal courts to create larger, more functional, and just courts.

Human Trafficking And Labor Migration: The Dichotomous Law And Complex Realities Of Filipina Entertainers In South Korea And Suggestions For Integrated And Contextualized Legal Responses, Yoon J. Shin

Vanderbilt Journal of Transnational Law

This Article examines the complex legal situation of Filipina "entertainers" in U.S. military camp towns in South Korea: the individuals located at the intersection of human trafficking and labor migration. The Article investigates how the dichotomous law fails to recognize these entertainers as either trafficking victims or as migrant workers. The law therefore denies proper legal rights and remedies for the serious rights violations they suffer in the destination state. This research demonstrates that these migrants have diverse needs, aspirations, and transnational experiences that embrace both victimhood and agency. It illuminates the fundamental problems of the current global anti-trafficking regime, …

Religious Rights In Historical, Theoretical, And International Context: Hobby Lobby As A Jurisprudential Anomaly?, S. I. Strong

Vanderbilt Journal of Transnational Law

The United States has a long and complicated history concerning religious rights, and the U.S. Supreme Court's recent decision in Burwell v. Hobby Lobby Stores, Inc. has done little to clear up the jurisprudence in this field. Although the decision will doubtless generate a great deal of commentary as a matter of constitutional and statutory law, the better approach is to consider whether and to what extent the majority and dissenting opinions reflect the fundamental principles of religious liberty. Only in that context can the merits of such a novel decision be evaluated free from political and other biases.

This …

Imagery And Expectations For International Disaster Response, Nathan E. Clark

Vanderbilt Journal of Transnational Law

This Article examines the development and contributions of the Charter on Cooperation to Achieve the Coordinated Use of Space Facilities in the Event of Natural or Technological Disasters (Charter). As a voluntary mechanism among spacefaring nations and transnational entities, the Charter provides remote sensing data and information for international disaster response efforts. Over the past fifteen years, the Charter members have continued to contribute and cooperate in an effective manner, in spite of increasing legislative and economic controls over the access and distribution of data at the State level. This Article finds that the behaviors of Charter members largely fall …

Understanding The Hard/Soft Distinction In International Law, Arnold N. Pronto

Vanderbilt Journal of Transnational Law

A common characterization employed in contemporary international law is that between "hard" and "soft" law. A determination that an instrument falls into either category carries with it a series of implications, including that pertaining to the legal consequence of noncompliance with the rules contained in the text. What is at times overlooked is the relatively common phenomenon of the two types of law co-existing, where hard rules provide the context or the limits (boundaries, ceilings, and floors), and the details are "filled-out" by soft rules. A full appreciation of the resulting legal picture requires not only a familiarity with both …

Recognition And Enforcement In Cross-Border Insolvency Law: A Proposal For Judicial Gap-Filling, Professor Sandeep Gopalan, Michael Guihot

Vanderbilt Journal of Transnational Law

The globalization of business activity necessarily entails contacts with a diverse array of national laws and legal systems, and insolvencies in this context often have transnational consequences. In such situations, there is a clash of competing national laws on weighty questions including the recognition of security interests, processes related to the disbursal of assets, and different policy preferences underlying the protection of different kinds of creditors. These clashes pose difficulties because each country has framed its insolvency laws in response to particular political exigencies and the policy preferences of its citizens, reflecting different bargains between creditor and debtor protection. Despite …

Trusts In Commerce: Guy Neale V Nine Squares Pty Ltd [2014] Sgca 64, Man Yip

Research Collection Yong Pung How School Of Law

In Guy Neale v Nine Squares Pty Ltd [2014] SGCA 64, the Court of Appealconsidered the operation of the express trust in the commercial context and theprinciples relating to the award of an institutional constructive trust for breachof fiduciary duty. The decision is interesting not only for the exposition of legalprinciples, but also because it relates to the posh restaurant-bar, “Ku De Ta”,located at Marina Bay Sands.

A Doctor’S Duty Of Disclosure: Uksc Sets New Paradigm In Montgomery V Lanarkshire Health Board, Kee Yang Low

Research Collection Yong Pung How School Of Law

Montgomery v Lanarkshire Health Board (“Montgomery”)1 is about a baby being born with severe disabilities. Expectant mothers of small build and suffering from diabetes,2 such as the plaintiff, run the risk of shoulder dystocia, that is – the situation of the baby’s shoulders being unable to pass through the pelvis in a normal delivery.3 In this case, the patient was not told of the risk of shoulder dystocia as, in the doctor’s opinion, the possibility was very small. The doctor was not inclined to warn as most mothers, if told would opt for a ceasarean section and that would deprive …

State-Owned Enterprises In Singapore: Historical Insights Into A Potential Model For Reform, Cheng-Han Tan, Dan W. Puchniak, Umakanth Varottil

Research Collection Yong Pung How School Of Law

This article argues that the Singapore GLC Model is so closely intertwined with Singapore’s idiosyncratic history and unique regulatory culture that, although the model has been extremely successful within Singapore, transplanting it to China could be difficult. The article also explores the extent to which the success of the Singapore GLC Model and China’s ambition to emulate it challenge notions that corporate governance systems are converging towards a market-oriented (American) model of the shareholder centric corporation and the extent to which the success of the Singapore GLC Model challenges the basic conception that private enterprise rather than the state is …

Identifying An Interest In Land Sufficient To Support A Caveat: Salbiah Bte Adnan V Micro Credit Pte Ltd [2014] Sghc 249, Alvin W. L. See

Research Collection Yong Pung How School Of Law

The difficult issue of what constitutes an interest in land sufficient to support a caveat (“caveatable interest”) recently presented itself before the High Court in the case of Salbiah Bte Adnan v Micro Credit Pte Ltd, which concerned a caveat lodged to protect an alleged security interest. The decision deserves the attention of property lawyers for it helpfully addressed various principles of property law relating, directly and indirectly, to the lodgment of caveats.

Alternative Investment Markets Under Criticism: Reasons To Be Worried? Lessons From Gowex, Aurelio Gurrea-Martinez

Research Collection Yong Pung How School Of Law

The recent financial scandal of Gowex in the Spanish Alternative Investment Market (MAB) has reopened the debate about the dangers of lightly regulated markets and their optimal level of regulation. This article argues that Gowex’s collapse was not a failure of these markets but a failure of the gatekeepers in charge of overseeing Gowex’s activities. Therefore, we propose that regulators should focus on providing mechanisms to encourage gatekeepers to do their work in an effective and credible way. Namely, we propose that regulators should enhance the role and effectiveness of Nominated Advisers, since these players have been created precisely for …

What Happens If We Call Discrimination A Tort?, Anthony J. Sebok

Articles

No abstract provided.

Is There A Way Out Of The Non-International Detention Dilemma?, Gabor Rona

Articles

The article addresses the legal ambiguities surrounding detention in non-international armed conflicts (NIACs), highlighting the lack of explicit rules under international humanitarian law (IHL) and the challenges posed by the extraterritorial application of human rights law. It critiques the argument that detention authority can be implied from the right to target under IHL and advocates for reform to establish clear legal frameworks for detention in NIACs, ensuring compliance with human rights protections.

Why Instrumentalism Matters, Kyron J. Huigens

Articles

Alon Harel argues that the acts of a public official acting with "fidelity of deference," are "necessary," "non-contingent," "intrinsic," "constitutive," integrative," "expressive," or "inherent" features of legal punishment. Accordingly, he calls his argument "noninstrumental." This can be taken as an argument for logical necessity, definition, extension, or modest or immodest conceptual necessity. Only the last interpretation fits Harel's text, but such an argument fails because instrumentality is necessarily present in any event in the natural world, including punishment. Harel does not say which aspects of natural instrumentality he means to exclude from his argument, or how, or why.

Facing Terror Together: Public Agents And Civic Worth, Ekow N. Yankah

Articles

No abstract provided.