George Washington University Law School Research Articles

Professor ‘Rusty’ Park: a genuine polyhistor

Journal Article Professor ‘Rusty’ Park: a genuine polyhistor Get access Charles N Brower Charles N Brower Arbitrator Member of Twenty Essex Chambers and Professorial Lecturer in Law at the George Washington University Law School cbrower@twentyessex.com Search for other works by this author on: Oxford Academic Google Scholar Arbitration International, Volume 39, Issue 2, June 2023, Pages 167–169, https://doi.org/10.1093/arbint/aiad012 Published: 19 June 2023

Response to Professor Ruskola

Journal Article Response to Professor Ruskola Get access Donald Clarke Donald Clarke Professor of Law and David A. Weaver Research Professor, George Washington University Law School, Washington, DC, USA donald.clarke@gmail.com Search for other works by this author on: Oxford Academic Google Scholar The American Journal of Comparative Law, avad003, https://doi.org/10.1093/ajcl/avad003 Published: 21 June 2023

What Role Should Governments Play in Setting Rewards for Medical Innovation?

On March 10, 2021, our journal partnered with the Engelberg Center on Innovation Law and Policy to host a symposium addressing the role and impact of U.S. innovation policy on access to medicine. Our 2021 Symposium Issue—Volume 11, Issue 1—captures that event.This article represents the first of four panels. This panel considered what role governments should play in setting rewards for medical innovation. It was moderated by Professor Lisa Ouellette of Stanford Law School. The panelists included Professor Michael Abramowicz of George Washington University Law School, Professor Daniel Hemel of the University of Chicago Law School, and Professor Bhaven Sampat of the Columbia Mailman School of Public Health.

Introductory Remarks by Catherine Amirfar

It is now my pleasure to introduce a very special roundtable that brings together four of my distinguished predecessors as president of the Society. Taken together, their terms of office span the last twenty-five years. Edith Brown Weiss is University Professor and former Francis Cabell Brown Professor of International Law at Georgetown Law. José Alvarez is the Herbert and Rose Rubin Professor of International Law at New York University School of Law. Lucinda A. Low is a partner at Steptoe & Johnson LLP, where she heads the Compliance, Investigations, Trade, and Enforcement Department, and Sean D. Murphy is the Manatt/Ahn Professor of International Law at George Washington University Law School and a member of the UN International Law Commission. Welcome, welcome.

Lessons from Quality Shareholders on Corporate Governance Practice, Research and Scholarship

Special Note: This Publication is part of The Quality Shareholder Initiative at the Center for Law, Economics and Finance (C-LEAF), at The George Washington University Law School, Prof. Lawrence A. Cunningham, Faculty Director. This Article presents original data and analysis addressing an understudied force in corporate America: the most patient and focused shareholders. Great attention has been devoted to short-term trading on the one hand and diversified index funds on the other, but scant attention has been focused on long-term concentrated investors. The George Washington University has been redressing this problem through a research initiative focused on such buy-and-hold stock pickers, whom Warren Buffett long ago dubbed 'quality shareholders'. GW’s Quality Shareholders Initiative ('QSI') is pleased to present highlights of the initial installment of this work in this Article in the Business and Finance Law Review at the George Washington University’s Center for Law, Economics, and Finance.

The Copyright Conflict between Musicians and Political Campaigns Spins Around Again

Research Article| December 01 2017 The Copyright Conflict between Musicians and Political Campaigns Spins Around Again Danwill D. Schwender Danwill D. Schwender Danwill Schwender is an attorney at Foldenauer Law Group, where he represents individuals and companies in business disputes involving claims such as breach of contract, fraud, intellectual property infringement, and trade secret misappropriation. Mr. Schwender obtained a master of laws degree in intellectual property law from the George Washington University Law School, a juris doctor degree from the Thomas Jefferson School of Law, and a bachelor of science degree from the University of Utah. He has written several articles in the field of intellectual property law, which have appeared in academic journals and books. Search for other works by this author on: This Site Google American Music (2017) 35 (4): 490–500. https://doi.org/10.5406/americanmusic.35.4.0490 Cite Icon Cite Share Icon Share Facebook Twitter LinkedIn MailTo Permissions Search Site Citation Danwill D. Schwender; The Copyright Conflict between Musicians and Political Campaigns Spins Around Again. American Music 1 January 2017; 35 (4): 490–500. doi: https://doi.org/10.5406/americanmusic.35.4.0490 Download citation file: Zotero Reference Manager EasyBib Bookends Mendeley Papers EndNote RefWorks BibTex toolbar search Search Dropdown Menu toolbar search search input Search input auto suggest filter your search All Scholarly Publishing CollectiveUniversity of Illinois PressAmerican Music Search Advanced Search The text of this article is only available as a PDF. Copyright 2018 by the Board of Trustees of the University of Illinois2018 Article PDF first page preview Close Modal You do not currently have access to this content.

Teaching Lawyering With Heart in the George Washington University Law School Domestic Violence Project

The Domestic Violence Project (DVP) began as an experiment but has become my favorite model for teaching law students about domestic violence work. The heart of the course is its emphasis on developing awareness of and compassion for the personally and emotionally challenging dimensions of domestic violence work. I achieve this (i) through an intensive and personal dialogue with students through written journals and responses; (ii) by inviting students to consider creative expression for their final project, and (iii) by teaching students about vicarious trauma and encouraging their understanding of it in themselves and other system players. Students seem to experience this course as an oasis of holistic professional and personal growth within the often dispiriting experience of law school.

Cyber Conflict Bibliography, 2015 Update

The purpose of this bibliography, originally prepared for the Future of Cyber Warfare symposium held at The George Washington University Law School in April 2012, is to provide scholarly and other resources principally focused on cyber conflict, cyber attacks, information warfare and cyber war published between 2008 and the present. Selected resources on cyber crime, cybersecurity and cyber espionage are also included.

Amicus Curiae Brief of Interested Energy Law Scholars in Support of the Petitioners (FERC v. Electric Power Supply Association, U.S. Supreme Court)

This amicus brief was filed in the Federal Energy Regulatory Commission v. Electric Power Supply Association energy law demand response case (and companion case brought by EnerNOC and others), which the U.S. Supreme Court will hear in fall 2015. It was co-authored by Joel Eisen (University of Richmond School of Law), Emily Hammond (The George Washington University Law School), Richard Pierce (Counsel of Record; The George Washington University Law School), and Jim Rossi (Vanderbilt University Law School). Amici curiae are 26 law professors who have significant research and teaching experience in the field of energy law, with a particular focus on electric power markets. The brief was filed in support of petitioners (FERC and demand response firms), and raises two different arguments in support of reversing the decision of the District of Columbia Circuit Court of Appeals (Electric Power Supply Ass’n v. FERC, 753 F.3d 216 (D.C. Cir. 2014)). Both arguments are based on what Amici believe are fundamental misinterpretations of the Federal Power Act and applicable precedents. Amici believe that the U.S. Court of Appeals for the District of Columbia Circuit made serious errors when it held that FERC lacked authority to regulate operators’ rules for demand response (DR) in the wholesale electricity markets. That holding is contrary to the text, history, and structure of the Federal Power Act (FPA), which mandates that FERC must remedy “practices . . . affecting” wholesale electricity rates to ensure such rates are just and reasonable. Moreover, it ignores FERC’s reasonable interpretation of its statutory authority. Amici direct their arguments to the jurisdictional issue only, and take no position on the second issue for which the Supreme Court has granted certiorari.

False Dichotomies of Transitional Justice: Gender, Conflict and Combatants in Colombia

At the time of publication Shana Tabak was at The George Washington University Law School.

Cyber Conflict Bibliography

The purpose of this bibliography, originally prepared for the Future of Cyber Warfare symposium held at George Washington University Law School in April 2012, is to provide scholarly and other resources principally focused on cyber conflict, cyber attacks, information warfare and cyber war published between 2008 and the present. Selected resources on cyber crime, cybersecurity and cyber espionage are also included.

Book Reviews

Rebecca P. Judge of St. Olaf College reviews “Pollution Limits and Polluters' Efforts to Comply: The Role of Government Monitoring and Enforcement” by Dietrich H. Earnhart and Robert L. Glicksman. The EconLit abstract of the reviewed work begins: Provides insights into the impacts of U.S. Clean Water Act enforcement on both performance and behavior by facilities regulated under the statute. Discusses the scope of analysis -- a sample of regulated facilities; a summary of research questions and review of previous studies; discharge limits imposed on discharging facilities; environmental behavior -- facilities' efforts to comply with discharge limits; environmental performance -- facilities' discharges and compliance with discharge limits; regulatory efforts to induce compliance with discharge limits; the effect of government interventions on environmental behavior; and the effect of government interventions on environmental performance. Earnhart is Professor of Economics and Director of the Center for Environmental Policy at the University of Kansas. Glicksman is J. B. and Maurice C. Shapiro Professor of Environmental Law at the George Washington University Law School. Index.

Anti-Circumvention's Ugly Duckling: 'Later-Developed Merchandise' and Subjecting New Products to Old Tariffs

This unpublished student note examines the Federal Circuit's decision in Target Corp. v. United States (2010), subjecting candles composed of less than fifty percent petroleum wax imported from China to an antidumping tariff originally explicitly applied to only candles composed of greater than fifty percent petroleum wax. This counter-intuitive extension was accomplished through the obscure later-developed merchandise provision of laws intended to counteract attempted circumvention of antidumping tariffs. The note examines this provision's provenance and intent, concluding that it is inconsistent with the policy and function of antidumping tariffs, and ultimately recommends that the provision be constricted or eliminated. The note was written for the Federal Circuit Bar Journal at George Washington University Law School during the 2010-2011 term.

Book Reviews

Petros C. Mavroidis of Columbia University reviews “Global Warming and the World Trading System” by Gary Clyde Hufbauer, Steve Charnovitz, Jisun Kim, Gary Clyde Hufbauer, Steve Charnovitz, Jisun Kim,. The EconLit Abstract of the reviewed work begins “Analyzes the linkages between the new climate change regime’s prospective rules on greenhouse gases and international trade, and considers a course of action that would maximize the success of the attack on global warming while minimizing the risk to world trade. Discusses an overview of applicable World Trade Organization (WTO) rules; the status of climate measures under the law of the WTO; future climate policy and the WTO; and elements of a trade and climate code. Hufbauer is Reginald Jones Senior Fellow at the Peterson Institute for International Economics. Charnovitz is Associate Professor of Law at the George Washington University Law School. Kim is a research assistant with the Peterson Institute for International Economics. Bibliography; index.”

The Yuck Factor When Disgust Meets Discovery

Imagine you lived in a drought-stricken area and were told that from now on your tap water would come from “recycled sewage.” Might the word “yuck” describe your gut response? If your answer is yes, then you’ve got lots of company. Most people instinctively reject fearsome or repugnant things, especially when those things are unfamiliar. If shared by masses of people, that collective repugnance can fuel a social force with the power to shape environmental and public policy. The so-called yuck factor, a term coined by University of Pennsylvania bioethicist Arthur Caplan to describe the influence of instinctive responses against new technology, has a wide scope. In California, it’s derailed projects for converting wastewater into drinking water in several municipalities. It’s been cited in public opposition to foods from cloned animals and genetically modified (GM) crops. It’s even been named as a barrier to programs for trading carbon dioxide emission credits on the open market, says Asa Lofgren, an economist at Goteberg University, Sweden, who points to widespread aversion to the notion that companies could buy rights to pollute. Generally speaking, “yuck factor” has become a catchall phrase to describe technophobic sentiments that vary by what triggers them. The disgust elicited by drinking reclaimed wastewater, for instance, differs from the moral outrage induced by human cloning. Meanwhile, science routinely generates technologies that—though they might initially be seen as repugnant—are also borne of real need. For instance, wastewater reclamation, the process by which sewage water is treated to augment drinking, industrial, and agricultural water supplies, responds to the growing problem of drought. In this case, the yuck factor—exacerbated perhaps by the use of terms such as “recycled sewage” and “toilet-to-tap”—stands in the way of a solution to dwindling water supplies that experts generally view as cost-effective and safe. Galvanized by the yuck factor, opponents in Redwood City, California, delayed a wastewater reclamation project for nearly two years. And about six hours north, in Fountain Valley, a group dubbed the Revolting Grandmas led opposition to the Orange County Groundwater Replenishment System, which is the largest wastewater reclamation plant in the world. Responding to opponents’ demands, engineers now pump highly treated wastewater leaving the plant into an underground basin, where it filters through layers of sand and gravel before being piped to the homes and businesses that use it. Ironically, the water coming out of the basin isn’t as clean as the treated water going into it, according to an article in the 8 August 2008 New York Times Magazine—during its trip through the natural filters it picks up trace elements and contaminants that must later be removed by the water utility. The underground filtration step is taken, says director of recharge operations Adam Hutchinson, strictly to allay psychological concerns. But the yuck factor could also be said to serve a useful purpose. Excrement does pose health risks, and the public is therefore wise to ask questions about the safety of drinking reclaimed wastewater. Likewise, genetic technologies have the capacity to fundamentally alter life as we know it, in some cases with uncertain benefits. By giving pause to technological progress, the yuck factor opens new opportunities for dialogue between scientists and the public. In some cases, that dialogue might show that a technology’s benefits outweigh the repugnance that goes with it. In others, it pushes scientists to make a better case for why a given technology should be pursued at all. Given the influence wielded by instinctive responses to new technology, Caplan asserts that policy makers need to better understand these responses and take them seriously. “Savvy marketers and good advertising people know how to appeal to emotion, gut rationality, and visceral fears,” he says. “That’s what they’re selling—the manipulation of ‘yuck’—and more often than not, this is what determines who wins or loses in science policy debates. If you really want to overcome that, you have to become sophisticated about how experts manipulate emotion. And if you’re going to assess what’s admissible in terms of public policy, your argument has got to be better than to simply say ‘I don’t like it.’”

Digging for Truth, Justice, or the Humanitarian Way: Priorities in Post-Genocide Transitional Justice and Exhumations of Mass Graves

While working for the Department of Justice, detailed to the Regime Crimes Liaison's Office (RCLO) in Iraq in 2005, the head of our team, Sonny Trimble, made a casual comment that has stuck with me. I paraphrase: Forensic digs, he said, very different from humanitarian ones. As someone with a legal background who had not had previous field experience, it was initially hard to understand what he meant, as all mass grave excavations used techniques that could be and have been called forensic. It all came down to the relatively simple proposition that the former involved a holistic look at a grave site and the circumstantial evidence it contained, with a view towards building a criminal case. The latter focused more on exhuming the bodies themselves, with hopes of repatriating the victims' remains.Some forensic scientists have thought of this distinction as a false dichotomy that only confounds those doing the work at the site and complicates matters for policymakers as they try to their rebuild a atrocity-torn country. This paper takes a different view. By examining genocide jurisprudence as developed by the International Criminal Tribunals, assessing the value of the forensic evidence that can be gained from mass grave excavations, and acknowledging the interplay of each of those in the greater reimplementation of the rule of law in post-conflict situations, this paper proposes a model protocol for the forensic of mass graves that provides comprehensive guidelines to tribunals and scientists regarding the standards of care of grave sites to insure integrity of the evidence contained therein, while allowing for the flexibility to tailor treatment of each grave site to its own particular needs.This paper won Vermont Law School's 2008 International Law Writing Competition, and was presented at that school's conference Understanding Genocide: Prevention, Prosecution, and Progress in October, 2008. An updated version will be presented at The George Washington University Law School's International Law Week in February 2009. I am currently working to include a more robust discussion of the pertinent genocide precedent, and a re-defining of excavation as distinguished from exhumation to better describe the differences between operations that are part of a criminal investigation (i.e. the interchangable use of the terms, as in footnote 38, will not apply in subsequent versions), versus those that are not. I will also be adding pages on the dynamics of ICC complimentarity requirements and states' responsibilities to investigate. There is also currently minimal discussion about the proceedings of the Iraqi High Tribunal, principally because this version of the paper focused on what was more germane to the Vermont Law School conference, which was the ICT precedent.The views contained herein are my own and do not in any way reflect the views or policies of the Department of Justice, the Regime Crimes Liaison's Office, or any government agency.

Clearing the Smoke from Philip Morris V. Williams: The Past, Present, and Future of Punitive Damages

In Philip Morris USA v. Williams, the Supreme Court held that the Constitution does not permit the imposition of punitive damages to punish a defendant for harm caused to third parties. This Article critiques the reasoning, but seeks ultimately to vindicate the result, of that landmark decision. It argues that, although the Court’s procedural due process analysis does not stand up to scrutiny, punitive damages as punishment for third-party harm do indeed violate procedural due process, but for reasons far more profound than those offered by the Court. To reach that conclusion, the Article confronts the most basic and fundamental questions about punitive damages—questions that the Supreme Court has studiously avoided for more than a century: what, exactly, is the purpose of punitive damages, and how is it constitutional to impose them as a form of punishment in a judicial proceeding without affording the defendant the protection of the Constitution’s criminal procedural safeguards? The Article argues that punitive damages are properly conceptualized as a form of punishment for private wrongs: judicially sanctioned private revenge. As such, it makes both theoretical and doctrinal sense to impose them without affording the defendant criminal procedural protections, which are necessitated only for the punishment of public wrongs on behalf of society. When, however, courts employ punitive damages as a form of punishment for public wrongs, they become a substitute for the criminal law, which thus makes an intolerable end run around the Bill of Rights. For that reason, Williams was ultimately correct that punitive damages must be limited to punishment for the harm done to the individual plaintiff, not the harm done to the general public. This reasoning suggests that contrary to the emerging conventional wisdom, Williams does not stand in the way of the imposition of nonpunitive extracompensatory damages of the type favored by law and economics scholars as a means of forcing the defendant to internalize the costs of its behavior in order to achieve optimal deterrence. author. Associate Professor, The George Washington University Law School. For helpful comments on earlier drafts of this Article, the author would like to thank Michael Abramowicz, Michael Allen, Judge Guido Calabresi, William Colby, David Fontana, Frederick Lawrence, Chip Lupu, Dan Markel, Christopher Robinette, Shilpa Satoskar, Sheila Scheuerman, Anthony Sebok, Catherine Sharkey, Jonathan Siegel, Peter Smith, Roger Trangsrud, Benjamin Zipursky, and the participants in the work-in-progress workshop at The George Washington University Law School.

Encyclopedia of Genocide and Crimes Against Humanity (review)

Encyclopedia of Genocide and Crimes Against Humanity, edited by Dinah I. Shelton. Farmington Hills, MI: Thomson Gale, 2005. 3 vols., 1458 pp. $395.00. Responding but not limited to the near-successful state-authorized murder of European Jewry during World War II, professor and lawyer Raphael Lemkin coined and defined the term genocide as actions of deconstruction and elimination directed against individuals who are members of a national entity: Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings. It is intended rather to signify a coordinated plan of different actions aimed at the destruction of the essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be a disintegration of political and social institutions-of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups.1 Lemkin's study influenced the original draft of the United Nations 1948 Convention on the Prevention and Punishment of the Crime of Genocide. Various aspects of the Draft's definitions of physical genocide, biological genocide, and cultural genocide are the glue that unite the multiple entries in this informative reference work geared to a general readership. Armenian genocide, apartheid in South Africa, the killing fields of the Communist Khmer Rouge in Cambodia, ethnic cleansing in Bosnia and Herzegovina, killing of Kurds in Iraq, genocidal activities in Rwanda and Sudan, persecution in the name of religion in Northern Ireland, in India, in Pakistan, in Malaysia and Indonesia, terrorism in Israel and reciprocal bombardment, the attack on America on September 11, 2001 and its consequences, race matters in the United States-the late twentieth century and the start of the twenty-first century are a minefield of ethnic and nationalistic conflict. Invariably, the world of one humanity is threatened by economic competition, political unrest, and social divisiveness. But the fact that man's distrust of man prevails at the end of the century of Shoah and genocide and in the beginning of the century of global terrorism requires examination. Are ordinary and extraordinary acts of dislike of the unlike, individual and group, products of chance or fated by a predetermined goal? How to explain the ideologies of nationalism, tribalism, and racism in perpetuating a world-wide cycle of pain? Are premeditated crimes against humanity without end? If yes, what apparatus and measures are there to prevent the seemingly endless slaughter of innocents? This set of volumes, ably edited by Dinah L. Shelton (George Washington University Law School) and her editorial board, are an attempt to explain and inform about the what, when, where, who, and why of genocide. …

A Just World Under Law: An African Perspective on the Status of the Individual in International Law

The panel was convened at 10:45 a.m., Friday, March 31, by its chair, Alexandre Ch. Kiss of National Center for Scientific Research, who introduced panelists: John Cerone of New England School of Law; Vincent O. Nmehielle of University of Witwatersrand School of Law; Anne-Marie La Rosa of International Committee of Red Cross; and Dinah Shelton of George Washington University Law School. * REMARKS BY DINAH SHELTON ([dagger]) In Oppenheim's classic treatise on topic, international law was defined as a law governing relations among states, exclusively. (1) Defining international law in this manner meant that by definition individuals and other nonstate actors could not be subjects of international law. Instead, Oppenheim and other writers at beginning of twentieth century classified individuals as potential objects of international law. States were perceived as hermetically sealed entities, and only interstate relations were deemed proper matters for international regulation. Was this theoretical approach ever true in practice? Historically, international law regulated some conduct of individuals, reflected in ancient prohibition of piracy and certain war crimes, followed by nineteenth century outlawing of slave-trading. The lex mercatoria developed as a private customary international law, widely implemented and enforced in domestic courts. Rights were granted by treaty, although such grants were consistent with Oppenheim's view of individuals as objects of conventional law, if states so intended. There were also, however, rights and duties derived from non-conventional law. The well-known Martens clause referred to the usages established among civilized peoples, laws of humanity, and dictates of public conscience. (2) Following World War I, a commission of Peace Conference reported that war carried on by central powers was conducted by barbarous methods in violation of established laws and customs of war and elementary laws of humanity. (3) According to commission, all persons belonging to enemy countries, however high their positions may have been, without distinction of rank, including Chiefs of States, who have been guilty of offences against laws and customs of war or laws of humanity are liable to prosecution. (4) Article 237 of treaty with Germany thereafter provided: The Allied and Associated Powers publicly arraign William II of Hohenzollern, formerly German Emperor, for a supreme offence against international morality and sanctity of treaties. A special tribunal will be constituted to try accused, thereby assuring him guarantees essential to right of defence. It will be composed of five judges, one appointed by each of following Powers: namely, United States of America, Great Britain, France, Italy and Japan. In its decision, tribunal will be guided by highest motives of international policy, with a view to vindicating solemn obligations of international undertakings and validity of international morality. (5) Notably, emperor was not accused of violating laws and customs of war, but of what would later be called against peace. The sealed box of state was clearly broken open. During hundred years of American Society of International Law, number of such exceptions to classic states-only construct of international law has expanded to point that definition itself no longer holds true. The changes were largely incremental until end of World War II, when human rights law and international criminal law became major topics of international regulation. The transformed world vision is perhaps best reflected in well-known statement of Justice Jackson during Nuremburg proceedings, when he noted that crimes are not committed by states, they are committed by individuals. …

Courtroom to Classroom: Justice Harlan's Lectures at George Washington University Law School

John Marshall Harlan had a singularly successful legal career as an Associate Justice of the Supreme Court that spanned thirty-three years, from 1877 to 1911, one of the longest terms in history. For twenty-one of those years on the Court he also distinguished himself as a professor of constitutional law at George Washington University. Along with his colleague on the Bench and on the faculty, Associate Justice David J. Brewer, Harlan carried a full course load, teaching just about every subject: evidence, torts, property law, corporation law, commercial law, international law, and his specialty, constitutional law.