Law Commons^™

Third Report On Crimes Against Humanity, Sean D. Murphy

GW Law Faculty Publications & Other Works

In July 2014, the U.N. International Law Commission placed the topic “Crimes against humanity” on its current program of work and appointed a Special Rapporteur. According to the topic proposal, the objective of the Commission is to draft articles for what could become a Convention on the Prevention and Punishment of Crimes against Humanity.

In 2015, based on the Special Rapporteur’s First Report, the Commission provisionally adopted the first four draft articles with commentary. In 2016, based on the Special Rapporteur’s Second Report, the Commission provisionally adopted an addition six draft articles with commentary. In this Third Report, which will …

Heteronormativity In Employment Discrimination Law, Naomi Schoenbaum

GW Law Faculty Publications & Other Works

This symposium Essay responds to the EEOC’s new decision to interpret federal employment discrimination law’s ban on discrimination on the basis of sex to include a ban on discrimination on the basis of sexual orientation. It argues that although the EEOC’s decision does provide cause to celebrate, ongoing heteronormativity in federal employment discrimination law will continue to stand as a barrier to equal employment opportunity for gay workers. First, Title VII provides an exception to the sex discrimination ban in the context of intimate spaces, allowing, for example, only women to be hired to serve as labor and delivery nurses. …

Risky Business: Should The Fda Pay Attention To Pharmaceutical Prices?, David A. Hyman, William E. Kovacic

GW Law Faculty Publications & Other Works

People are angry about drug prices. What role, if any, should the FDA play in addressing this issue? Historically, the FDA’s answer has been “not our problem.” As the quality and safety agency, the FDA has repeatedly refused to get involved in drug pricing matters, even when its actions (and inactions) have contributed to the problem. We examine the circumstances under which the FDA should pay attention to pharmaceutical prices, and discuss the implications of it doing so.

Introduction, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

This is an introduction to a symposium issue that brings together two different sets of paper. The first set of papers were written in honor of Catharine A. MacKinnon, “Legal Feminism: Looking Back, Looking Forward.;” The second set of papers are drawn from a conference on “The Family-Inequality Debate: A Workshop on Coercion, Class, and Paternal Participation."

Acceptance Instead Of Denial: Pro-Applicant Positions At The Pto, Dmitry Karshtedt

GW Law Faculty Publications & Other Works

In Medicines Co. v. Hospira, Inc., 827 F.3d 1363 (Fed. Cir. 2016) (en banc), the United States filed an amicus brief, signed by the U.S. Patent and Trademark Office's (PTO) Solicitor and attorneys in the Department of Justice, in support of the plaintiff-appellant. Among other things, the government argued that secret sales should not trigger the on-sale bar within the meaning of § 102 of the Patent Act applying to patents governed by the regime prior to the Leahy-Smith America Invents Act. While government amicus filings in patent infringement cases are not uncommon, this brief is notable because it explicitly …

Assaultive Words And Constitutional Norms, Catherine J. Ross

GW Law Faculty Publications & Other Works

The tension between the competing demands of the First. Amendment’s guarantee of free expression and the Fourteenth Amendment’s implicit promise of dignity and equality has long been evident in societal debates about identity politics, in academic writing, and in disputes over regulation of campus speech. This article argues that the First Amendment generally protects campus speech that includes hurtful words, even those that verbally assault a target or are seen as perpetuating an environment that demeans or endangers women, minorities and others. Protection of such offensive speech also promotes the proclaimed norms of higher education, which is why so many …

How Justice Thomas Determines The Original Meaning Of Article Ii Of The Constitution, Gregory E. Maggs

GW Law Faculty Publications & Other Works

This paper was presented at a panel on Justice Thomas and Article II at the Yale Federalist Society’s conference, "Celebrating Justice Thomas: 25 Years on the Supreme Court." It addresses the question: "How does Justice Thomas determine the original meaning of Article II of the U.S. Constitution?" In answering this question, I make three observations based on opinions authored or joined by Justice Thomas. First, Justice Thomas seems much more inclined to theorize about executive power than other aspects of constitutional law. Second, Justice Thomas routinely cites seven key sources of original meaning in his decisions on executive power. Third, …

Counter-Claims At The International Court Of Justice (2017), Sean D. Murphy

GW Law Faculty Publications & Other Works

This essay analyzes the practice of addressing counter-claims before the International Court of Justice (ICJ), as well as its predecessor, the Permanent Court of International Justice (PCIJ). In the Court’s jurisprudence, a “counter-claim” is an autonomous legal act by the respondent in a contentious case before the Court, the object of which is to submit a new claim to the Court, one that is linked 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 …

Management Of Federally Owned Grasslands In The Climate Change Era, Robert L. Glicksman

GW Law Faculty Publications & Other Works

The federal government owns and manages substantial tracts of grasslands, which provide ecosystem services worth trillions of dollars. These include seed dispersal, mitigation of droughts and floods, nutrient cycling, control of pests and disease-carrying organisms, maintenance of biodiversity and wildlife habitat, soil preservation, climate stabilization, watershed and water body protection, pollination, carbon sequestration, and recreational opportunities. Like most ecosystem types found on federal lands, grasslands ecosystems are vulnerable to ongoing and predicted changes in climate.

The land management agencies that administer federal grasslands face novel management challenges that require development of climate change adaptation strategies, some of which they have …

A Concise Guide To The Articles Of Confederation As A Source For Determining The Original Meaning Of The Constitution, Gregory E. Maggs

GW Law Faculty Publications & Other Works

Judges and scholars often refer to the Articles of Confederation when making claims about the original meaning of the United States Constitution. To help readers understand and evaluate such claims, this piece describes the formation and content of the Articles of Confederation and explains four ways in which the Articles may provide evidence of the original meaning of the Constitution. The two appendices to this piece contain an annotated copy of the Articles of confederation and a table linking provisions of the Constitution to their antecedents in the Articles.

Primary Jurisdiction: Another Victim Of Reality, Richard J. Pierce Jr

GW Law Faculty Publications & Other Works

In this essay, Professor Pierce describes some of the many ways in which our traditional understanding of administrative law is being contradicted by reality, introduces yet another doctrine that has been overtaken by the new reality, and suggests ways in which teachers and scholars should react to the rapidly changing reality of administrative law.

The Paradox Of Implicit Bias And A Plea For A New Narrative, Michael Selmi

GW Law Faculty Publications & Other Works

Over the last decade, implicit bias has emerged as the primary explanation for contemporary discrimination. The idea behind the concept of implicit bias, which is closely connected to the well-known Implicit Association Test (“IAT”), is that many people are unaware of the biases that influence their actions and can engage in discriminatory acts without any conscious intent. Legal scholars have fallen hard for implicit bias and dozens of articles have been written espousing the role implicit bias plays in perpetuating inequality. Within legal analysis, a common mantra has arisen that defines implicit bias as unconscious, pervasive and uncontrollable. What has …

A Critical Guide To Using The Legislative History Of The Fourteenth Amendment To Determine The Amendment's Original Meaning, Gregory E. Maggs

GW Law Faculty Publications & Other Works

Judges, lawyers, and scholars often look to the Fourteenth Amendment’s legislative history for evidence of the Amendment’s original meaning. Members of the Supreme Court, for instance, have cited floor statements, committee records, preliminary proposals, and other documents relating to the drafting and approval of the Fourteenth Amendment in many important cases. The documents containing this legislative history, however, are difficult to use. As explained in this Article, the Amendment came about through a complex process, in which Congress rejected several prior proposals for constitutional amendments before settling on a markedly different proposal that became the Fourteenth Amendment. Although the primary …

Why The International Exhibitions Bureau Should Choose Minneapolis For Global Expo 2023, Steve Charnovitz

GW Law Faculty Publications & Other Works

In November 2017, the 170 governments in the International Exhibitions Bureau (BIE) will vote for a country to host the 2022/23 specialized expo. The United States strengthened its bid in 2017 by a remarkably rapid bipartisan action by the US Congress and Trump Administration to rejoin the BIE which the United States had quit in 2002. This paper reviews the legislative history of US membership in the BIE treaty going back to 1968 and provides a brief overview of the role of the BIE in supervising world's fairs and expos going back to 1928. The BIE is an unusual treaty …

Ministry Of Truth? Why Law Can’T Stop Prevarications, Bullshit, And Straight-Out Lies In Political Campaigns, Catherine J. Ross

GW Law Faculty Publications & Other Works

Governmental actions to restrain campaign falsehoods include federal and state statutes and judicial intervention. The article offers a taxonomy of campaign falsehoods and the different harms various kinds of falsehood generate and examines statutes adopted in sixteen states aimed at false speech about candidates, this article argues that efforts to control false speech about candidates (whether positive about the speaker or falsely negative about the opponents) face insurmountable First Amendment obstacles, as every court to consider such a statute has concluded. If the government becomes the arbiter of truth or falsehood, it is engaging in content-based regulation. Moreover, the article …

The Holding-Dicta Spectrum, Andrew Michaels

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The distinction between holding and dictum is often treated under a binary paradigm; either a proposition is binding holding, or unconstraining dictum. But the binary paradigm is too simplistic to adequately model our complex system of precedent. This article suggests an alternative spectrum paradigm where the constraining force of a precedent proposition is inversely correlated with its breadth. This article explains the spectrum approach, compares it with prevailing approaches, and evaluates some cases in light of the spectrum model. The spectrum framework has the potential to facilitate judicial candor and make the concepts of holding and dicta more consistently meaningful.

The Mystery Of Unanimity In Hosanna-Tabor Evangelical Lutheran Church & School V. Eeoc, Ira C. Lupu, Robert W. Tuttle

GW Law Faculty Publications & Other Works

In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (2012), the Supreme Court held that the First Amendment supports a “ministerial exception” defense in anti-discrimination suits by clergy against their institutional religious employers. In advance of the decision, the outcome seemed unpredictable, and the Court’s unanimity arrived as a shock.

This paper illuminates the result, reasoning, and unanimity in Hosanna-Tabor. We explain how Hosanna-Tabor stands in a long line of decisions, grounded in both the Establishment Clause and the Free Exercise Clause, that prohibit state adjudication of “strictly and purely ecclesiastical" questions.

Part I examines why unanimity on the Supreme …

Risk And Anxiety: A Theory Of Data Breach Harms, Daniel J. Solove, Danielle Citron

GW Law Faculty Publications & Other Works

In lawsuits about data breaches, the issue of harm has confounded courts. Harm is central to whether plaintiffs have standing to sue in federal court and whether their claims are viable. Plaintiffs have argued that data breaches create a risk of future injury from identity theft or fraud and that breaches cause them to experience anxiety about this risk. Courts have been reaching wildly inconsistent conclusions on the issue of harm, with most courts dismissing data breach lawsuits for failure to allege harm. A sound and principled approach to harm has yet to emerge, resulting in a lack of consensus …

Emerging Policy And Practice Issues (2016), 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 2016), attempts to identify the key trends and issues in U.S. federal procurement for 2017. Consistent with prior practice, this chapter offers extensive coverage of the federal procurement, grant, and defense spending trends and attempts to predict what lies ahead, particularly with regard to legislative and executive activity (which, this year, was highlighted by the (unexpected) inauguration of the Trump administration). The paper discusses, in addition to data, changes to OFPP and DoD leadership and the likely conclusion of the Defense Department Better Buying Power Initiative, and …

Jane The Virgin And Other Stories Of Unintentional Parenthood, Naomi R. Cahn, June Carbone

GW Law Faculty Publications & Other Works

In this article, we contrast the roles of intent, function, biology and marriage in establishing legal parenthood, focusing on differences between elite and non-elite reproduction. Central to these differences are the distinctions between intent at the time of conception and birth of a child versus the assumption of parental roles that occurs after birth, and between functional roles that correspond to formal agreements or institutions and those which arise through less formal arrangements.

LGBT families have used the concept of intent, as it originated in ART cases, to argue for recognition of families of choice, without either biological ties or …

Enhancing Patent Damages, Dmitry Karshtedt

GW Law Faculty Publications & Other Works

Many policymakers, judges, and scholars justify patent law on economic-utilitarian grounds. It is therefore unsettling that when it comes to damages for patent infringement in excess of the compensatory baseline, courts have followed an approach that reflects primarily moral, rather than economic, considerations. In order to obtain enhanced damages, the prevailing plaintiff must show — among other things — that the defendant actually knew of the patent-in-suit. This subjective standard stems from pre-industrial tort actions designed to punish egregious interpersonal behaviors such as assault, piracy, libel, and seduction, and to preserve public tranquility. But as the law developed to cover …

Mapping Gender: Shedding Empirical Light On Family Courts’ Treatment Of Cases Involving Abuse And Alienation, Joan S. Meier, Sean Dickson

GW Law Faculty Publications & Other Works

This article provides an empirical view of family courts' treatment of custody cases involving abuse and/or alienation claims. After a brief literature survey, the article describes the co-authors’ pilot study, which begins empirically mapping family courts’ uses of parental alienation theory in abuse cases. The pilot results provide powerful preliminary empirical validation of the growing number of strong critiques of family court practice in abuse cases.

Kagan's Atlantic Crossing: Adversarial Legalism, Eurolegalism, And Cooperative Legalism, Francesca Bignami, R. Daniel Kelemen

GW Law Faculty Publications & Other Works

In this contribution to Varieties of Legal Order, a book inspired by Robert Kagan’s scholarship, we review the debate on the spread of American “adversarial legalism” to Europe. In the 1990s, Kagan developed the concept of adversarial legalism to capture the distinctive litigiousness of the American regulatory system, and asked whether it might take hold in Europe. In our research that followed, we put forward different answers. R. Daniel Kelemen concluded that a legal style akin to adversarial legalism--one which he eventually termed Eurolegalism—was in fact spreading across the European Union. Drawing on her case study of the data …

Federal Decentralization, David Fontana

GW Law Faculty Publications & Other Works

Constitutional law relies on the diffusion of powers among different institutions to ensure that no one person or faction controls power. Federalism and the separation of powers have been presented as the primary institutional arrangements generating this diffusion. Scholars and jurists alike, though, have largely neglected to consider another form of diffusion: federal decentralization. Federal power cannot be appropriately diffused if it is geographically concentrated in those in a single place. Federal decentralization ensures that federal officials in Washington and in places distant and therefore different from Washington compete with and constrain one another. This Article identifies and evaluates federal …

Impression Products, Inc. V. Lexmark International, Inc.: A Glib Rebuke Of The Federal Circuit, Andrew Michaels

GW Law Faculty Publications & Other Works

While the result of the Supreme Court's decision in Impression Products is defensible, the opinion's lack of sophistication makes the case seem easier than it was, unnecessarily sowing the seeds of potential future confusion.

Presidential Politics And Judicial Review, Robert L. Glicksman, David Aldeman

GW Law Faculty Publications & Other Works

This Article assesses the impact of judicial review on one of the nation’s foundational environmental statutes, the National Environmental Policy Act (NEPA). Based on litigation spanning fifteen years, we find that the stringency of judicial review is driven by the interaction of judicial ideology and presidential politics. Our principal findings are two-fold: First, judicial ideology, here defined by political party affiliation, is most influential when NEPA’s environmental goals conflict with the politics of the presidential administration in power. Second, the influence of judicial ideology is mediated by the distribution of cases across federal circuits and the ideological balance of judges …

The Fate Of The Clean Power Plan And U.S. Greenhouse Gas Emissions In The Trump Era, Robert L. Glicksman

GW Law Faculty Publications & Other Works

The Obama Administration’s signature effort to abate greenhouse gases (GHGs) that contribute to climate change was its Clean Power Plan (CPP), an innovative effort to rein in GHGs from existing fossil fuel-fired power plants, the U.S.’s largest source of stationary source emissions. The CPP never went into effect, however, the victim of an unusual stay issued by the United States Supreme Court before its effective date. Subsequently, a lower court halted the litigation attacking the CPP at the request of the Trump Administration to allow it to review (and presumably repeal) the CPP and put its own stamp on climate …

Stuck Or Rooted? The Costs Of Mobility And The Value Of Place, Naomi Schoenbaum

GW Law Faculty Publications & Other Works

David Schleicher has written an important Article on the relationship between law and mobility, arguing for policymakers to be more concerned with policies that stand in the way of individuals moving to bigger, more productive cities. This Response takes up the costs of mobility for productivity, welfare, and sex equality omitted by Schleicher, and addresses Schleicher’s treatment of place as a market. Schleicher’s argument fails to take account of how mobility interacts with critical relationships. While Schleicher’s view of productivity is premised in agglomeration economics, he ignores how mobility ruptures the very relationships on which the benefits of agglomeration (and …

Situational Ethics And Veganism, Neil H. Buchanan

GW Law Faculty Publications & Other Works

The debate about vegan ethics frequently devolves into attempts by those opposed to veganism to prove that there are situations in which it is morally acceptable to consume animal products. If they can prove that it is acceptable to be non-vegan in one situation, the thinking seems to be that they have proved that it is acceptable never to be a vegan. Thus, because it is not morally objectionable to eat the carcass of an animal who died of natural causes, we are told that it is acceptable to eat animals full stop. That is absurd, because it is equivalent …

Exploring The Meaning Of Experiential Deaning, Margaret Martin Barry, Robert Dinerstein, Phyllis Goldfarb, Peggy Maisel, Linda Morton

GW Law Faculty Publications & Other Works

This article explores the position of associate dean of experiential education in law schools across the country and the central role associate deans play in the changing landscape of legal education. Experiential deans have broad responsibility for overseeing law schools’ experiential education programs. Additional responsibilities differ between institutions, but range from leading efforts to comply with new ABA standards to overseeing the integration of experiential education into the broader curriculum. Analyzing survey data collected from associate experiential deans across the country, the authors find the structure, content, and authority of the position is under-developed. The authors make recommendations on how …