Digital Commons Network^™

Rethinking Prosecutors' Conflicts Of Interest, Bruce A. Green, Rebecca Roiphe

Faculty Scholarship

No abstract provided.

Dead Hand Proxy Puts And Shareholder, Sean J. Griffith, Natalia Reisel

Faculty Scholarship

No abstract provided.

Accountable Algorithms, Joel R. Reidenberg

Faculty Scholarship

No abstract provided.

The Great Etf Tax Swindle: The Taxation Of In-Kind Redemptions, Jeffrey M. Colon

Faculty Scholarship

Since the repeal of the General Utilities doctrine over 30 years ago, corporations must recognize gain when distributing appreciated property to their shareholders. Regulated investment companies (RICs), which generally must be organized as domestic corporations, are exempt from this rule when distributing property in kind to a redeeming shareholder.

In-kind redemptions, while rare for mutual funds, are a fundamental feature of exchange-traded funds (ETFs). Because fund managers decide which securities to distribute, they distribute assets with unrealized gains and thereby significantly reduce the future tax burdens of their current and future shareholders. Many ETFs have morphed into investment vehicles that …

Prospecting For An Hiv Vaccine, David Brett-Major, T. A. Crowell, N. L. Michael

Journal Articles: Epidemiology

Human immunodeficiency virus (HIV) sets several challenges for the development of a preventative HIV vaccine. Predictable, protective natural immunity against HIV does not occur and so unlike most other diseases for which vaccines exist, there are few guideposts from natural infection. Nonetheless, six vaccine efficacy trials have occurred. One in particular, the Thai trial called RV144, showed partial protective efficacy and potential ways ahead to a better vaccine approach. This coupled with other lessons from studies of acute infections as well as an increasingly complex knowledge of HIV-related vaccine immunology bring hope that a vaccine solution might be reached for …

Mosquitoes Transmit Unique West Nile Virus Populations During Each Feeding Episode, Nathan D. Grubaugh, Joseph R. Fauver, Claudia Rückert, James Weger-Lucarelli, Selene Garcia-Luna, Reyes A. Murrieta, Alex Gendernalik, Darci R. Smith, Doug E. Brackney, Gregory D. Ebel

Journal Articles: Epidemiology

Arthropod-borne viruses (arboviruses), such as Zika virus, chikungunya virus, and West Nile virus (WNV), pose continuous threats to emerge and cause large epidemics. Often, these events are associated with novel virus variants optimized for local transmission that first arise as minorities within a host. Thus, the conditions that regulate the frequency of intrahost variants are important determinants of emergence. Here, we describe the dynamics of WNV genetic diversity during its transmission cycle. By temporally sampling saliva from individual mosquitoes, we demonstrate that virus populations expectorated by mosquitoes are highly diverse and unique to each feeding episode. After transmission to birds, …

Understanding Recent Spikes And Longer Trends In American Murders, Jeffery Fagan, Daniel Richman

Faculty Scholarship

On September 7, 2016, four of the nation’s newspapers of record weighed in on the connected crises in crime and policing. The New York Times revealed the tensions between the Mayor’s office in Chicago and several community and professional groups over a plan to overhaul Chicago’s police disciplinary board – a plan developed in the wake of the shooting of an unarmed teenager, Laquan McDonald, and the release of a video of that killing. The Wall Street Journal related a vigorous defense of New York City’s “broken windows” policing strategy – a strategy that has been a recurring source of …

“Are We Having Fun Yet?”: What Factors Influence Senior-Level Managers To Have Fun At Work?, Anthony Scardillo

AMTP Proceedings 2017

Contrary to belief, employees are NOT having fun yet. In fact, 73% of all employees are dissatisfied with their jobs (Crabtree, 2013). The reasons are many, but the underlying reason is that they are not having any fun! (Clark, 2009; Ford, McLaughlin, & Newstrom, 2003a; Kinjerski & Skrypnek, 2006). We believe that a fun and engaging workplace impacts employee engagement, morale, productivity and safety (Bedeian & Armenakis, 1998; Boyatzis, Smith, & Beveridge, 2012; 2013). We also believe that creating a fun atmosphere at work is accomplished only when management has fun (Bolton, Houlihan, & Renee Baptiste, 2009; CHI, CHUNG, & …

A Regulatory Theory Of Legal Claims, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

Procedural law in the United States seeks to achieve three interrelated goals in our system of litigation: efficient processes that achieve “substantive justice” and deter wrongdoing, accurate outcomes, and meaningful access to the courts. For years, however, procedural debate, particularly in the context of due process rights in class actions, has been redirected toward more conceptual questions about the nature of legal claims—are they more appropriately conceptualized as individual property or as collective goods? At stake is the extent to which relevant procedures will protect the right of individual claimants to exercise control over their claims. Those with individualistic conceptions …

Global Health Security In An Era Of Explosive Pandemic Potential, Lawrence O. Gostin, Ana Ayala

Georgetown Law Faculty Publications and Other Works

Pandemics pose a significant risk to security, economic stability, and development. Annualized expected losses from pandemics are estimated at $60 billion per year. Despite the certainty and magnitude of the threat, the global community has significantly underestimated and underinvested in avoidance of pandemic threats.

We cannot wait or continue with the status quo, in which we pay attention to infectious disease threats only when they are at their peak and then are complacent and remain vulnerable until the next major outbreak. To reinforce and sustain international focus, funding, and action, it is crucial that pandemics rise to the level of …

Market Definition, Steven C. Salop, Serge Moresi, John R. Woodbury

Georgetown Law Faculty Publications and Other Works

We explain the “hypothetical monopolist test” that has become the standard methodology for identifying relevant antitrust markets in merger cases, and discuss two approaches to implementing the test. We then focus on the implementation of the test when firms offer multiple products or services, either inside or outside the candidate market, and discuss the “hypothetical cartel test” introduced in the 2010 U.S. Merger Guidelines.

Breaking Down Bias: Legal Mandates Vs. Corporate Interests, Jamillah Bowman Williams

Georgetown Law Faculty Publications and Other Works

Bias and discrimination continue to limit opportunities and outcomes for racial minorities in American institutions in the twenty-first century. The diversity rationale, touting the broad benefits of inclusion, has become widely accepted by corporate employers, courts, and universities. At the same time, many view a focus on antidiscrimination law and the threat of legal enforcement as outmoded and ineffective. Thus, many organizations talk less in terms of the mandates of laws such as the 1964 Civil Rights Act, or a “legal case,” and more in terms of a “business case” where benefits of inclusion seem to accrue to everyone. It …

Calling All The Statesmen: The (Not) Mubarak Trial, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

I read the decision that exonerated ex-Minister of Interior of Egypt and his assistants from the charge of giving orders to kill demonstrators textually. Shortcomings known to lawyers and journalists who were following the case about failure of performance on the part either of prosecutors, lawyers, or the judge overseeing the trial are not considered in my reading. You might call it a close reading—specifically, a reading of the rationalizing language used by the judge writing the decision to explain his verdict.

Fixing Incontestability: The Next Frontier?, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Incontestability is a nearly unique feature of American trademark law, with a unique American implementation. The concept of incontestability allows a trademark registrant to overcome arguments that a symbol is merely descriptive of features or qualities of the registrant’s goods or services—for example, “Juicy” for apples. Incontestability provides a nearly irrebuttable presumption of trademark meaning, which is a powerful tool for trademark owners. Unfortunately, incontestability is not granted as carefully as its power would counsel. Courts may misunderstand either the prerequisites for, or the meaning of incontestability, allowing trademark claimants to assert rights that they don’t actually have

Incontestability needs …

A Hobbesian Bundle Of Lockean Sticks: The Property Rights Legacy Of Justice Scalia, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

No modern United States Supreme Court Justice has stimulated more thought and debate about the constitutional meaning of property than Antonin Scalia. This essay evaluates his efforts to change the prevailing interpretation of the Takings Clause. Scalia sought to ground it in clear rules embodying a reactionary defense of private owners’ prerogatives against environmental and land use regulation. Ultimately, Scalia aimed to authorize federal judicial oversight of state property law developments, whether through legislative or judicial innovation. In hindsight, he stands in a long tradition of conservative judges using property law as a constitutional baseline by which to restrain regulation.

Using The Federal Public Trust Doctrine To Fill Gaps In The Legal Systems Protecting Migrating Wildlife From The Effects Of Climate Change, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Not unlike before the biblical flood, the world stands on the brink of catastrophe awaiting rescue by a virtual ark. The most vulnerable to this looming catastrophe are the world’s wildlife. Changes in global temperature and precipitation as well as sea level rise and acidification of the ocean are already affecting wildlife by limiting the availability and quality of habitat and the abundance of prey, and by increasing predation and disease. Sea level rise and unstable storm patterns threaten coastal wildlife, while changing precipitation and temperature patterns are drying out habitat, making some habitat more susceptible to wildfires, and other …

Property In The Anthropocene, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

Human-induced climate change threatens perilous risks for our physical homes and also poses a serious challenge to our legal institutions. Several scholars already have remarked on the disruption climate change has brought to specific legal areas, such as tort, standing, and national security. This essay argues that climate change will also disrupt fundamental ideas about real property. It maintains that the growing need for human management of dynamic natural forces, distorted by greenhouse gas emissions, will erode the foundations of physical stability and owner autonomy that shape basic doctrines of property law.

Delaware’S Dominance: A Peculiar Illustration Of American Federalism, Robert Thompson

Georgetown Law Faculty Publications and Other Works

Delaware rose to preeminence in the incorporation market after a key point of inflection for corporate law. Around the turn of the 20^th century, “laissez faire” statutes signaled a shift from state regulation of corporations to private ordering and markets at a time when the decline of ultra vires, quo waranto, and regulation of foreign corporations first made it possible for a state to attract substantial incorporation business from its neighbors. The regulatory impulse of the earlier corporations statutes, however, did not disappear. It simply moved to federal law—in antitrust, securities, or labor-- setting up a strong federalism dimension …

The Importance Of Being Standard, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

Contract standardisation in the sovereign debt market saves time and money in preparing documents and endows widely-used terms with a shared public meaning, which in turn saves investors the costs of acquiring information, facilitates secondary market trading and reduces the scope for mistakes in the judicial interpretation of contract terms. Sovereign debt issuers and investors claim to value standardisation and list it as an important contractual objective. Issuers generally insist that their bond contracts are standard and reflect market practice. Variations from past practice and market norm must be explained in disclosure documents and through market outreach. Standardisation is not …

Newbs Lose, Experts Win: Video Games In The Supreme Court, Angela J. Campbell

Georgetown Law Faculty Publications and Other Works

This Article focuses on the role of the lawyers using the framework described by Professor Richard J. Lazarus in his 2008 article, Advocacy Matters Before and Within the Supreme Court: Transforming the Court by Transforming the Bar. Lazarus argues the modern Supreme Court bar has come to be dominated by a small number of Supreme Court specialists. Because of their experience and superior knowledge of the Justices and Supreme Court practice, Supreme Court specialists are more likely to obtain outcomes desired by their clients, which are typically large corporations or industry trade associations. Consistent with Lazarus’s finding, this Article shows …

2016 James P. While Lecture On Legal Education: Legal Education Reconsidered, Judith C. Areen

Georgetown Law Faculty Publications and Other Works

The title of my talk, “Legal Education Reconsidered,” is not meant to suggest that legal education needs to be reconsidered. On the contrary, I will explore why the many criticisms of legal education made over the past six years combined with a significant decline in the legal job market have led many people—including many college students and recent graduates—not only to reconsider legal education, but to draw the conclusion that it is no longer a worthwhile investment. Even worse, a growing number of faculty and deans have become disheartened about their chosen life’s work and as a consequence have lost …

Consensual Sexual Dysphoria: A Challenge For Campus Life, Robin West

Georgetown Law Faculty Publications and Other Works

This article ultimately suggests one way to address the problem of nonconsensual sex, assault, and rape on college campuses, but it does so by focusing on a topic that our conversations about nonconsensual sex have often marginalized: harms occasioned by consensual but unwanted sex. I argue that the party who does not physically desire, does not emotionally welcome, and does not take pleasure in sex, has sometimes been harmed by that sex by virtue of its unwelcomeness, and that the harm is serious enough that we need to attend to it. Further, the harms caused by this sex are not …

The New Legal Criticism, Robin West

Georgetown Law Faculty Publications and Other Works

Professors Hanoch Dagan and Avihay Dorfman’s article Just Relationships is a fundamental reinterpretation of the moral ideals of large swaths of private law. Its significance, however, may go beyond even that broad ambition. In this Response, I suggest that Just Relationships is also an exemplar—perhaps par excellence—of an emergent form of critical discourse, which may itself foreshadow a paradigm shift in contemporary critical legal scholarship. That new form of scholarship might usefully be dubbed “the new legal criticism.” The label serves partly as an echo of the “New Criticism” movement that emerged in literary criticism in the middle of the …

In Praise Of Richard Weisberg's Intransigence, Robin West

Georgetown Law Faculty Publications and Other Works

In early essays on Herman Melville’s Billy Budd, Sailor, Richard Weisberg startled the literary and legal academic world with a novel claim: Captain Vere, he argued, far from being a tragic hero resigned to the moral and legal necessity of an unpopular act, as he had been commonly understood, was a murderer. His summary execution of Billy Budd, Weisberg showed, was neither required, excused, nor justified by law. Rather, Vere engineered an unreviewable conviction and death sentence, contrary to both the letter and spirit of the governing positive law, for personal gain. But why was Weisberg’s claim so novel? …

Advancing The Right To Health: The Vital Role Of Law, Lawrence O. Gostin, Oscar A. Cabrera, David Patterson, Roger Magnusson, Helena Nygren-Krug

Georgetown Law Faculty Publications and Other Works

Effective laws and an enabling legal environment are essential to a healthy society. Most public health challenges – from infectious and non-communicable diseases to injuries, from mental illness to universal health coverage – have a legal component. At global, national and local levels, law is a powerful tool for advancing the right to health. This tool is, however, often underutilized.

This report aims to raise awareness about the role that public health laws can play in advancing the right to health and in creating the conditions for all people to live healthy lives. The report provides guidance about issues and …

Law For The Platform Economy, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

This Article: explores patterns of legal-institutional change in the emerging, platform-driven economy. Its starting premise is that the platform is not simply a new business model, a new social technology, or a new infrastructural formation (although it is also all of those things). Rather, it is the core organizational form of the emerging informational economy. Platforms do not enter or expand markets; they replace (and rematerialize) them. The article argues that legal institutions, including both entitlements and regulatory institutions, have systematically facilitated the platform economy's emergence. It first describes the evolution of the platform as a mode of economic (re)organization …

Here Today, Gone Tomorrow--Is Global Climate Change Another White Man’S Trick To Get Indian Land? The Role Of Treaties In Protecting Tribes As They Adapt To Climate Change, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Indian Tribes are at the tip of the spear when it comes to climate change. Their dependence on their homelands for subsistence and cultural sustenance has made them vulnerable to climate-driven changes like sea level rise, shoreline erosion, and drought. As climate change makes their land less suitable for the animals and plants they depend on, tribes are facing increasing pressure to move to survive. Complicating any such move is its effect on tribal treaties that grant tribes sovereignty over their traditional land and their members. If tribes are forced to sever themselves from their homelands, will that affect their …

From Texas Gulf Sulphur To Chiarella: A Tale Of Two Duties, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

This short essay is for a “celebration” of the fiftieth anniversary of the Second Circuit’s decision in SEC v. Texas Gulf Sulphur Inc. It tells of two distinct doctrinal journeys begun in TGS—one dealing with insider trading, the other with corporate liability for false corporate publicity. The first involves the “equal access” principle planted therein and then harshly discarded by the Supreme Court twelve years later in Chiarella v. United States. My claim is that marketplace egalitarianism never had much traction in the period from TGS to Chiarella, and was largely dead by the time the Court …

Independence At The Top Of The Triangle: Best Resolution Of The Judicial Trilemma?, Jennifer A. Hillman

Georgetown Law Faculty Publications and Other Works

World Trade Organization (WTO) members have, once again, been unable to agree on the appointment of new members to the Appellate Body (AB) in a timely fashion, as one member’s term expired on June 30, 2017, another member resigned in August 2017, and a third member’s term will expire in December 2017, with no consensus on a process to fill those posts. The 2017 standoff follows on the heels of a fractious debate during the summer of 2016 over the United States’ decision to block the reappointment of AB member Sueng Wha Chang of Korea to a second term. Given …

Virtue As The End Of Law: An Aretaic Theory Of Legislation, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This paper sketches an aretaic theory of legislation. Such a theory posits the flourishing of humans and their communities as the end or telos of law. The paper argues for a Neo-Aristotelian conception of human flourishing as a life of social and rational activities that express the human excellences or virtues. Because a flourishing life requires the acquisition, maintenance, and expression of the virtues, their promotion is the characteristic goal of legislation. The law can promote the virtues in a variety of ways, including: (1) by fostering peace and prosperity, (2) by encouraging stable and nurturing families, and (3) by …