Law Commons^™

The International Health Regulations (2005), The Threat Of Populism And The Covid-19 Pandemic, Kumanan Wilson, Sam F. Halabi, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

The global response to the COVID-19 pandemic has laid bare weaknesses and major challenges in the international approach to managing public health emergencies. Populist sentiment is spreading globally as democratic nations are increasing their support for or electing governments that are perceived to represent “traditional” native interests. Measures need to be taken to proactively address populist sentiment when reviewing the IHR (2005) effectiveness in the COVID-19 pandemic. We discuss how populism can impact the IHR (2005) and conversely how the IHR (2005) may be able to address populist concerns if the global community commits to helping states address public health …

Is Data Localization A Solution For Schrems Ii?, Anupam Chander

Georgetown Law Faculty Publications and Other Works

For the second time this decade, the Court of Justice of the European Union has struck a blow against the principal mechanisms for personal data transfer to the United States. In Data Protection Commissioner v Facebook Ireland, Maximillian Schrems, the Court declared the EU-US Privacy Shield invalid and placed significant hurdles to the process of transferring personal data from the European Union to the United States via the mechanism of Standard Contractual Clauses. Many have begun to suggest data localization as the solution to the problem of data transfer; that is, don’t transfer the data at all. I argue …

Health Justice Is Racial Justice: A Legal Action Agenda For Health Disparities, Sheila Foster, Yael Cannon, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

Acknowledging the urgency of both health and racial justice in this moment, Sheila Foster, Yael Cannon, and M. Gregg Bloche set forth a legal agenda to fight the health effects of racism in housing, policing, the environment, and other areas.

Chevron As Construction, Lawrence B. Solum, Cass R. Sunstein

Georgetown Law Faculty Publications and Other Works

In 1984, the Supreme Court declared that courts should uphold agency interpretations of ambiguous statutory provisions, so long as those interpretations are reasonable. The Chevron framework, as it is called, is now under serious pressure. Current debates can be both illuminated and softened with reference to an old distinction between interpretation on the one hand and construction on the other. In cases of interpretation, judges (or agencies) must ascertain the meaning of a statutory term. In cases of construction, judges (or agencies) must develop implementing principles or specify a statutory term. Chevron as construction is supported by powerful arguments; it …

An Analysis Of International Health Regulations Emergency Committees And Public Health Emergency Of International Concern Designations, Lucia Mullen, Christina Potter, Lawrence O. Gostin, Anita Cicero, Jennifer B. Nuzzo

Georgetown Law Faculty Publications and Other Works

Nine public health events have been assessed for the potential declaration of a Public Health Emergency of International Concern (PHEIC). According to the World Health Organization (WHO) International Health Regulations (IHR), a PHEIC is defined as an extraordinary event that constitutes a public health risk to other states through international spread and requires a coordinated international response. The WHO Director-General convenes Emergency Committees (ECs) to provide their advice on whether an event constitutes a PHEIC. The EC rationales have been continuously criticised for being non-transparent and contradictory to the IHR. This first comprehensive analysis of EC rationale provides recommendations to …

The 2010 Hmgs Ten Years Later: Where Do We Go From Here?, Steven C. Salop, Fiona Scott Morton

Georgetown Law Faculty Publications and Other Works

In this short article, which is part of a RIO Symposium on the Tenth Anniversary of the 2010 Merger Guidelines, we suggest a number of improvements that should be considered in the next revision of the Guidelines. Our analysis is based on the observation that horizontal merger policy has suffered from under-enforcement. We provide evidence that the enforcement agencies face significant resource constraints which require a triage process that inevitably leads to under-enforcement. In light of merger law placing greater weight on avoiding false negatives and under-deterrence than false positive and over-deterrence, the article suggests a number of ways in …

Copyright Reform: Imagining More Balanced Copyright Laws, Michelle M. Wu

Georgetown Law Faculty Publications and Other Works

Earlier chapters of this book provide a history of copyright and libraries in the United States, a review of outdated language in the existing copyright code, and a discussion of actions by both copyright owners and the public to rebalance copyright outside of legislation. This chapter simply imagines what copyright could be if we disregard the known political and legal obstacles. It starts with no constraints, which one might argue is both impractical and foolish. Why spend time discussing what could be when treaties, self-interest, and powerful industry lobbies stand in the way?

The answer is simply that environments can …

Imagining Global Health With Justice: Transformative Ideas For Health And Wellbeing While Leaving No One Behind, Lawrence O. Gostin, Eric A. Friedman

Georgetown Law Faculty Publications and Other Works

The disproportionate impact of COVID-19 on communities of color in the United States and immense vulnerabilities in lower-income countries has revealed a global health reality that is often overshadowed by decades of progress in overall global health, with new lows in child and maternal deaths every year, more people with HIV receiving access to lifesaving anti-retroviral therapy, and rising life expectancies. That reality is one of vast national and global inequalities, with the lived experiences of members of marginalized populations far removed from laudatory health headlines.

Here, we propose an ambitious agenda to bridge the gap between progress in global …

Reconstructing Liberty, Equality, And Marriage: The Missing Nineteenth Amendment Argument, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

The social movement that led to adoption of the Nineteenth Amendment sought not only women’s right to vote but also the end to a system of marriage law based on coverture. Under coverture, married women were deprived of property and contract rights and were de jure subservient to their husbands. Coverture also provided the predicate for denial of the vote. The model voter was the independent yeoman or worker able to express his own interests in a democratic system. Women were thought to be properly confined to the domestic sphere and dependent on their husbands, who were presumed to vote …

Extraterritoriality As Choice Of Law, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The proper treatment of provisions that specify the extraterritorial scope of statutes has long been a matter of controversy in Conflict of Laws scholarship. This issue is a matter of considerable contemporary interest because the Third Restatement of Conflict of Laws proposes to address such provisions in a way that diverges from how they were treated in the Second Restatement. The Second Restatement treats such provisions—which I call geographic scope limitations—as choice-of-law rules, meaning, inter alia, that the courts will ordinarily disregard them when the forum’s choice-of-law rules or a contractual choice-of-law clause selects the law of a state as …

Cicero And Barack Obama: How To Unite The Republic Without Losing Your Head, Michael J. Cedrone

Georgetown Law Faculty Publications and Other Works

By turning to the works of Cicero and Barack Obama, we can find models of how to speak into crises in ways that foster unity. Cicero’s Catilinarian orations were delivered in 63 BCE, during his one-year term as consul—the highest elected official in the Roman Republic. Facing a conspiracy by certain noble Romans, Cicero delivered a series of four speeches that drove the chief conspirator out of Rome, turned public opinion against the conspirators, and convinced the Roman Senate to support the death penalty for conspirators who remained and were captured in Rome. The Fourth Catilinarian, in which Cicero advocates …

Access To Lifesaving Medical Resources For African Countries: Covid-19 Testing And Response, Ethics, And Politics, Matthew M. Kavanagh, Ngozi A. Erondu, Oyewale Tomori, Victor J. Dzau, Emelda A. Okiro, Allan Maleche, Ifeyinwa C. Aniebo, Umunya Rugege, Charles B. Holmes, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Coronavirus disease 2019 (COVID-19) has revealed how strikingly unprepared the world is for a pandemic and how easily viruses spread in our interconnected world. A governance crisis is unfolding alongside the pandemic as health officials around the world compete for access to scarce medical supplies. As governments of African countries, and those in low-income and middle-income countries around the world, seek to avoid potentially catastrophic epidemics and learn from what has worked in other countries, testing and other medical resources are of concern. With accelerating spread, funding is urgently needed. Yet even where there is enough money, many African health …

Digital Smartphone Tracking For Covid-19: Public Health And Civil Liberties In Tension, I. Glenn Cohen, Lawrence O. Gostin, Daniel J. Weitzner

Georgetown Law Faculty Publications and Other Works

This Viewpoint compares manual and digital strategies for coronavirus disease 2019 (COVID-19) contact tracing, describes how countries in Asia and Europe have used smartphone tracking, and discusses privacy and discrimination concerns and strategies for balancing public health and civil liberties in the US.

Pay To Play? Campaign Finance And The Incentive Gap In The Sixth Amendment's Right To Counsel, Neel U. Sukhatme, Jay Jenkins

Georgetown Law Faculty Publications and Other Works

For nearly 60 years, the U.S. Supreme Court has affirmed that the Sixth Amendment to the U.S. Constitution guarantees felony defendants the right to counsel, regardless of their ability to pay. Yet nearly all criminal procedure scholars agree that indigent defense as practiced today falls far short of its initial promise. These scholars frequently cite a lack of political support, insufficient public funding, and a failure to address instances of inadequate legal representation, among other things, as causes for the underlying systemic dysfunction.

We contend that these conventional critiques are incomplete. Rather, indigent defense systems often fail due to poor …

Postscript: Covid-19 And The Legal Determinants Of Health, John Coggon, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

This is a short postscript to the Public Health Ethics special issue on the legal determinants of health. We reflect briefly on emerging responses to COVID-19, and raise important questions of ethics and law that must be addressed; including through the lens of legal determinants, and with critical attention to what it means to protect health with justice.

When Does A Major Outbreak Become A Public Health Emergency Of International Concern?, David N. Durrheim, Lawrence O. Gostin, Keymanthri Moodley

Georgetown Law Faculty Publications and Other Works

The process of determining whether a Public Health Emergencies of International Concern (PHEIC) exists and should be declared has drawn increasing criticism over the past few years with allegations that it is more political than technical. Delaying declaration, where appropriate, means that the opportunity of garnering international solidarity and necessary resources in the early phases of epidemics, when public health measures may be more effective, is lost. A reform agenda aimed at enhancing WHO/Emergency Committee transparency and objectivity for the PHEIC declaration process is required.

Reverse Bayesianism And Act Independence, Surajeet Chakravarty, David Kelsey, Joshua C. Teitelbaum

Georgetown Law Faculty Publications and Other Works

Karni and Vierø (2013) propose a model of belief revision under growing awareness—reverse Bayesianism—which posits that as a person becomes aware of new acts, consequences, or act-consequence links, she revises her beliefs over an expanded state space in a way that preserves the relative likelihoods of events in the original state space. A key feature of the model is that reverse Bayesianism does not fully determine the revised probability distribution. We provide an assumption—act independence—that imposes additional restrictions on reverse Bayesian belief revision. We show that with act independence knowledge of the probabilities of the new …

The Legal Determinants Of Health: How Can We Achieve Universal Health Coverage And What Does It Mean?, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

How can we keep people – wherever they live – healthy and safe? Among all global health initiatives, Universal Health Coverage (UHC) has garnered most political attention. But can UHC (as important as it is) actually achieve the two fundamental aspirations of the right to health: keeping people healthy and safe, while leaving no one behind? There is a universal longing for health and security, but also a deep-seated belief in fairness and equity. Can UHC achieve both health and equity, or what I have called, “global health with justice.”?

What makes a population healthy and safe? Certainly, universal and …

Has Global Health Law Risen To Meet The Covid-19 Challenge? Revisiting The International Health Regulations To Prepare For Future Threats, Lawrence O. Gostin, Roojin Habibi, Benjamin Mason Meier

Georgetown Law Faculty Publications and Other Works

Global health law is essential in responding to the infectious disease threats of a globalizing world, where no single country, or border, can wall off disease. Yet, the Coronavirus Disease (COVID-19) pandemic has tested the essential legal foundations of the global health system. Within weeks, the SARS-CoV-2 coronavirus has circumnavigated the globe, bringing the world to a halt and exposing the fragility of the international legal order. Reflecting on how global health law will emerge in the aftermath of the COVID-19 pandemic, it will be crucial to examine the lessons learned in the COVID-19 response and the reforms required to …

Global Health With Justice: Controlling The Floodgates Of The Upstream Determinants Of Health Through Evidence-Based Law, John Coggon, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

This article introduces a special issue on the legal determinants of health, following the publication of the Lancet–O’Neill Institute of Georgetown University Commission’s report on the subject. We contextualize legal determinants as a significant and vital aspect of the social determinants of health, explain the work of the Lancet–O’Neill Commission and outline where consequent research will usefully be directed. We also introduce the papers that follow in the special issue, which together set out in greater detail the work of the Commission and critically engage with different aspects of the report and the application of its findings and …

Using Covid-19 To Strengthen The Who: Promoting Health And Science Above Politics, Lawrence O. Gostin, Sarah A. Wetter

Georgetown Law Faculty Publications and Other Works

On April 14, 2020, President Trump announced the suspension of funding for the World Health Organization (WHO) to investigate WHO’s handling of the COVID-19 pandemic—citing WHO’s “disastrous decision” to oppose a travel ban on China, and for being slow and “China-centric.” Certainly, China failed in its international duty to respond rapidly and transparently to the novel coronavirus, and it suppressed truthful information, propelling a localized outbreak into a pandemic now in over 210 countries. Yet close examination of WHO’s COVID-19 response reveals that the Organization acted in line with its authority under the International Health Regulations, and using the available …

Health Inequalities, Lawrence O. Gostin, Eric A. Friedman

Georgetown Law Faculty Publications and Other Works

The vast health inequalities in the United States and beyond that COVID-19 makes glaringly evident are frequently masked by aggregate statistics, which for years had been showing health improvements. Yet these improvements were inequitably distributed, with benefits disproportionately going to wealthier – and in the United States, white – populations. Globally, vast health inequities also exist among and within countries. The inequalities, which have also helped fuel the rise of populism, extend far beyond health care, including to wealth and income. Disaggregated, granular data is critical to understanding these inequalities.

Addressing health inequities must extend far beyond universal access to …

Issuance Of The Keystone Xl Permit: Presidential Prerogative Or Presidential “Chutzpah”, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

This article uses President Trump's issuance of the Keystone XL Pipeline permit to illustrate the dangers of an imperial presidency, one in which the exercise of discretionary authority, based on neither the text of Article II of the Constitution nor a statute, will in all likelihood be unchecked by Congress, the courts, or popular opinion. To understand the dimensions of this concern, Part I of this article briefly describes the process and requirements for a presidential permit. Part II identifies key facts surrounding issuance of the Keystone XL Pipeline permit, the chronology of its issuance, and commonly given reasons supporting …

Vertical Merger Enforcement Actions: 1994–April 2020, Steven C. Salop, Daniel P. Culley

Georgetown Law Faculty Publications and Other Works

We have revised our earlier listing of vertical merger enforcement actions by the Department of Justice and Federal Trade Commission since 1994. This revised listing includes 66 vertical matters beginning in 1994 through April 2020. It includes challenges and certain proposed transactions that were abandoned in the face of Agency concerns. This listing can be treated as an Appendix to Steven C. Salop and Daniel P. Culley, Revising the Vertical Merger Guidelines: Policy Issues and an Interim Guide for Practitioners, 4 JOURNAL OF ANTITRUST ENFORCEMENT 1 (2016).

Governmental Public Health Powers During The Covid-19 Pandemic: Stay-At-Home Orders, Business Closures, And Travel Restrictions, Lawrence O. Gostin, Lindsay F. Wiley

Georgetown Law Faculty Publications and Other Works

The president and all 50 governors have declared health emergencies to combat the spread of severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), which causes coronavirus disease 2019 (COVID-19). While researchers race for vaccines, officials are implementing physical distancing, including orders to stay at home, restrict travel, and close non-essential businesses. To limit cross-border spread, a few states have issued mandatory quarantines for interstate travelers. Models suggest physical distancing would have to persist for 3 months to mitigate peak impacts on health systems and could continue on an intermittent basis for 12-18 months. What legal powers do governments have? What is …

Tailoring Election Regulation: The Platform Is The Frame, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

According to conventional wisdom, legislative efforts to limit platform-based electoral manipulation—including especially laws that go beyond simply mandating additional disclosure about advertising expenditures—are most likely doomed to swift judicial invalidation. In this Essay, I bracket questions about baseline First Amendment coverage and focus on the prediction of inevitable fatality following strict scrutiny. Legislation aimed at electoral manipulation rightly confronts serious concerns about censorship and chilling effects, but the ways that both legislators and courts approach such legislation will also be powerfully influenced by framing choices that inform assessment of whether challenged legislation is responsive to claimed harms and appropriately tailored …

False Advertising Law And New Private Law, Gregory Klass

Georgetown Law Faculty Publications and Other Works

This chapter, which will appear in the Oxford Handbook of New Private Law, examines the extent to which US false advertising law can be viewed as part of the private law. Its working hypothesis is that that although it can be helpful to distinguish private from public law, there is not a sharp border between the two regions. Laws that fall on the private side of the divide can be designed in light of purposes and principles commonly associated with public law, and vice versa. False advertising law provides an example. Despite the fact that it is commonly classified as …

The Misplaced Trust In The Doj's Expertise On Criminal Justice Policy, Shon Hopwood

Georgetown Law Faculty Publications and Other Works

As should be clear, this is less a book review and more an in-depth exploration of a key point Professor Barkow makes in Prisoners of Politics as applied to the federal criminal justice system. Sure, we need expertise in order to make data-driven criminal justice policy decisions--as Barkow puts it, “[t]he key is to create and foster an institutional framework that prioritizes data” and “expertise” so as to “create incentives for key decisionmakers to be accountable for real results” (pp. 14-15). But in creating reforms, the kindof expertise is also important. Many federal policymakers currently view the DOJ and …

Gerrymandering Justiciability, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

As illustrated by its 2019 decision in Rucho v. Common Cause, the Supreme Court has gerrymandered its justiciability doctrines in a way that protects the political power of white voters. Comparing the Court’s willingness to find racial gerrymanders justiciable with its refusal to find partisan gerrymanders justiciable reveals a lack of doctrinal constraint. That gives the Court the discretionary power to uphold or strike down particular gerrymanders by deeming them racial or partisan in nature. Such discretion is problematic because, when the Supreme Court has exercised discretion in a racial context, it has historically done so to protect the …

The International Intellectual Property Commercialization Council’S 3rd Annual U.S. Conference: The State Of Innovation In The Union, Neel U. Sukhatme, Paul R. Zielinski, G. Nagesh Rao, Pj Bellomo, Matthew Byers, Meghan Gaffney Buck, Everardo Ruiz

Georgetown Law Faculty Publications and Other Works

The International Intellectual Property Commercialization Council (“IIPCC”) presented its third annual policy conference at the United States Capitol on May 6, 2019. The conference’s theme explored the question of “what is the state of innovation in the United States?” Panelists included The Honorable Andrei Iancu – Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office; Dr. Carl J. Schramm – University Professor, Syracuse University and Former President of the Ewing Marion Kauffman Foundation; Mr. Patrick Kilbride – Senior Vice President of the Global Innovation Policy Center (“GIPC”) at the U.S. Chamber of …