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The Next Who Director-General’S Highest Priority: A Global Treaty On The Human Right To Health, Lawrence O. Gostin, Eric A. Friedman, Paulo Buss, Mushtaque Chowdhury, Anand Grover, Mark Heywood, Churnrurtai Kanchanachitra, Gabriel Leung, Judith Mackay, Precious Matsoso, Sigrun Mogedal, Joia S. Mukherjee, Francis Omaswa, Joy Phumaphi, K. Srinath Reddy, Mirta Roses Periago, Joe Thomas, Oyewale Tomori, Miriam Were, Debrework Zewdie

Georgetown Law Faculty Publications and Other Works

Amidst the many challenges facing the next WHO Director-General, the new WHO head should find WHO’s foremost priority in its most important constitutional pillar: the right to health. The centerpiece of this endeavor should be leadership on the Framework Convention on Global Health (FCGH), the proposed global treaty based in the right to health and aimed at national and global health equity. The treaty would reform global governance for health to enhance accountability, transparency, and civil society participation and protect the right to health in trade, investment, climate change, and other international regimes, while catalyzing governments to institutionalize the right …

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Informational Cronyism, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

If Maher Kara, the Citigroup analyst at the center of the Salman case now before the Supreme Court, was forbidden under SEC Rule 10b-5 from trading securities for his own account while in possession of the valuable secrets to which his job gave him access, should he instead be able to give that information to family members simply in order to enrich them? I suspect that to anyone unfamiliar with the fine line drawing of federal insider trading law, the answer is clearly no. There is probably no more common form of corruption than generously shoveling the fruits of power …

Modifying Merger Consent Decrees To Improve Merger Enforcement Policy, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

This article analyzes my short proposal for reviewing and modifying merger consent decrees to permit additional relief if the provisions of the initial consent merger are found to fail to preserve or restore competition in a reasonable period of time after the merger was consummated. My proposal also would involve more frequent reviews of consummated mergers that have been cleared without challenge, particularly those that were close calls. While “Don't Look Back” might be the best anthem for artists, economic decision theory would not support that approach to merger policy.

Predicting the impact of proposed mergers and remedies on consumers …

Zika Virus And Global Health Security, Lawrence O. Gostin, James G. Hodge Jr.

Georgetown Law Faculty Publications and Other Works

Americans are largely apathetic about the risks of Zika virus and Congress cannot agree on preparedness funding. Strategies to counter the spread of Zika by the World Health Organisation (WHO) grossly underestimate the disease’s impact. WHO and member countries lack sufficient resources to respond. Consequences of fiscal apathy can be measured in lives lost and long-term disabilities. Zika prevention is a matter of global health security.

The epidemiologic brunt of Zika in South America falls largely on vulnerable women at heightened risk of exposure through mosquitoes and sexual transmission. Resulting transmission to fetuses and infants will have generational impacts in …

Inside Safe Assets, Anna Gelpern, Erik F. Gerding

Georgetown Law Faculty Publications and Other Works

“Safe assets” is a catch-all term for financial contracts that market participants treat as if they were risk-free. These may include government debt, AAA corporate debt, bank debt, and asset-backed securities, among others. The International Monetary Fund estimated potential safe assets at more than $114 trillion worldwide in 2011, over seven times the U.S. economic output that year.

To treat any contract as if it were risk-free seems delusional after apparently super-safe public and private debt markets collapsed overnight. Nonetheless, financial crises have only raised the policy and academic profile of safe assets, invoked to explain global imbalances, shadow banking, …

Brief Of Evidence Law Scholars As Amici Curiae In Support Of Petitioner Paul L. Behrens’ Petition For Rehearing And Rehearing En Banc, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The panel here held that the government’s expert in a criminal trial can present hearsay for its truth without satisfying the requirements of Rule 703 or the prerequisites to admissibility under any hearsay exception. Amici believe that misreads the Federal Rules of Evidence, undermines the general prohibition on hearsay, and circumvents defendants’ cross-examination rights.

Treasury Should Exclude Income From Discharge Of Student Loans, John R. Brooks

Georgetown Law Faculty Publications and Other Works

There are several ways that a student loan borrower can have a federal student loan discharged. In some cases, that cancellation of student debt creates taxable income, but in others it does not. This Article argues that taxing cancellation of student debt undermines the purposes of loan discharge and income-driven repayment programs like IBR and PAYE. This Article further argues that, if Congress does not act to provide a clear exclusion, Treasury has sufficient statutory and common law authority to exclude that income, and that it should do so.

The Puzzle Of Pdvsa Bond Prices, Anna Gelpern, Paolo Colla, Mitu Gulati

Georgetown Law Faculty Publications and Other Works

Market reports in the summer of 2016 suggest that Venezuela is on the brink of default on upwards of $65 billion in debt. That debt comprises of bonds issued directly by the sovereign and those issued by the state-owned oil company PDVSA. Based on the bond contracts and other legal factors, it is not clear which of these two categories of bonds would fare better in the event of a restructuring. However, market observers are convinced — and we agree — that legal and contractual differences would likely impact the payouts on the bonds if Venezuela defaults. Using a comparison …

Women's Health And Abortion Rights: Whole Woman's Health V Hellerstedt, Lawrence O. Gostin, Rebecca B. Reingold

Georgetown Law Faculty Publications and Other Works

Nearly a quarter century ago, the Supreme Court asked pro-choice and right-to-life advocates “to end their national division by accepting a common mandate rooted in the Constitution.” Nothing of the sort materialized. If anything, the social and political battles intensified, with states enacting 1074 abortion restrictions. The Court has not considered various appeals in the face of an avalanche of legislation, but on June 27, 2016, it struck down 2 onerous restrictions on physicians and clinics offering abortion services.

In Whole Woman’s Health v Hellerstedt, the Court found Texas’s requirements that physicians conducting abortions obtain admitting privileges at local …

The Regulatory State In The Information Age, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

This Article examines the regulatory state through the lens of evolving political economy, arguing that a significant reconstruction is now underway. The ongoing shift from an industrial mode of development to an informational one has created existential challenges for regulatory models and constructs developed in the context of the industrial economy. Contemporary contests over the substance of regulatory mandates and the shape of regulatory institutions are most usefully understood as moves within a larger struggle to chart a new direction for the regulatory state in the era of informational capitalism. A regulatory state optimized for the information economy must develop …

The Luxembourg Effect: Patent Boxes And The Limits Of International Cooperation, Lilian V. Faulhaber

Georgetown Law Faculty Publications and Other Works

This article uses patent boxes, which reduce taxes on income from patents and other IP assets, to illustrate the fact that the jurisprudence of the European Court of Justice has a longer reach than has previously been recognized. This article argues that, along with having effects within the European Union, the ECJ’s decisions can also have effects on countries outside of the EU. In the direct tax context, the ECJ’s jurisprudence has hampered the ability of both EU and non-EU countries to police international tax avoidance.

In 2015, the Organisation for Economic Co-operation and Development (OECD) proposed restrictions on patent …

Taxation As Insurance, John R. Brooks

Georgetown Law Faculty Publications and Other Works

A central yet often overlooked aspect of an income tax is that it acts as insurance against the risk of low income. Because a person’s payments to government are a function of income, he can be assured that in a time of low income, his tax payments will decrease and transfers will increase, while the standard benefits of governments continue to flow. Because everyone, no matter how successful, faces some risk of lost income, that assurance provides us an insurance benefit, even if our income never actually drops.

Habeas As Forum Allocation: A New Synthesis, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The scope of habeas relief for state prisoners, especially during the decades before the Supreme Court’s 1953 decision in Brown v. Allen, is a famously disputed question – one of recognized significance for contemporary debates about the proper scope of habeas review. This Essay provides a new answer. It argues that, until the enactment of AEDPA in 1996, state prisoners were always entitled to de novo review of the legal and mixed law/fact questions decided against them by the state courts. Until 1916, such review was provided by the Supreme Court; after 1953, such review was provided by the lower …

Toward A Common Secure Future: Four Global Commissions In The Wake Of Ebola, Lawrence O. Gostin, Oyewale Tomori, Suwit Wibulpolprasert, Ashish K. Jha, Julio Frenk, Suerie Moon, Joy Phumaphi, Peter Piot, Barbara Stocking, Victor J. Dzau, Gabriel M. Leung

Georgetown Law Faculty Publications and Other Works

The world is becoming increasingly vulnerable to pandemics resulting from globalization, urbanization, intense human/animal interchange, and climate change. A series of global health crises have emerged since 2000, ranging from Severe Acute Respiratory Syndrome (SARS) and its phylogenetic cousin Middle East Respiratory Syndrome (MERS), to pandemic Influenza A (H1N1), Ebola, and the ongoing Zika virus epidemic. The Ebola epidemic gave rise to four global commissions proposing a bold new agenda for global health preparedness and response for future infectious disease threats.

Four global commissions reviewing the recent Ebola virus disease epidemic response consistently recommended strengthening national health systems, consolidating and …

“Settling The Question: Did Bank Settlement Agreements Subvert Congressional Appropriations Powers?” : Hearing Before The United States House Of Representatives Committee On Financial Services Subcommittee On Oversight And Investigations, 114th Congress, Nicholas Quinn Rosenkranz

Georgetown Law Faculty Publications and Other Works

The Constitution provides: ―No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . . ." This is not a mere technical provision but rather a fundamental element of constitutional structure.

It sounds, first, in democracy, reflecting the deep constitutional principle that the power of the purse should be vested in the most representative branch. Every dollar appropriated from the Treasury may represent a dollar of taxes, and so this principle applies to both taxing and spending.

A Yellow Fever Epidemic: A New Global Health Emergency?, Lawrence O. Gostin, Daniel Lucey

Georgetown Law Faculty Publications and Other Works

The worst yellow fever epidemic in Angola since 1986 is rapidly spreading, including the capital, Luanda. In Angola, the epidemic began in December 2015 and the laboratory-confirmed outbreak was reported to the World Health Organization (WHO) on January 21, 2016. Angola has had 2023 suspected cases and 258 deaths as of April 26, 2016. China, the Democratic Republic of Congo, and Kenya also have reported cases arising from infected travelers from Angola. Namibia and Zambia also share a long border with Angola, with considerable population movement between the countries. Similar to other recent epidemics, quick and effective action to stop …

Four Problems With The Draft Restatement’S Treatment Of Treaty Self-Execution, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The American Law Institute has embarked on the challenging task of restating the confounding distinction between self-executing and non-self-executing treaties. In some respects, the current draft of the Fourth Restatement of Foreign Relations Law represents an advance from the treatment of the subject in the Third Restatement (Third). At the same time, the current draft retains, and may even aggravate, some of the flaws of that earlier treatment. This Essay suggests four ways the current draft could be improved. First, the draft should explicitly recognize that the concept of self-execution is not a unitary one. The "self-executing" label encompasses four …

Student Loans As Taxes, John R. Brooks

Georgetown Law Faculty Publications and Other Works

The growth of college tuition and the corresponding rise in student loan debt have become major issues of public importance. Total outstanding student debt is at least $1.3 trillion, and tuitions keep growing, even while we arguably need to invest more in higher education to add skills and grow our economy. Sen. Bernie Sanders, I-Vt., has made higher education reform a major part of his Democratic presidential campaign platform, proposing a new financial transactions tax to pay for large grants to states that offer free tuition to public universities. His opponent, Hillary Clinton, has proposed grants to states to offer …

Courts And Sovereigns In The Pari Passu Goldmines, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

U.S. federal court rulings against Argentina since 2012 have turned the pari passu clause in sovereign bond contracts into the most promising debt collection tool against immune governments since the days of gunboat diplomacy. The large literature on pari passu (“equal step” in Latin) assumes that the clause had not been used for enforcement before the late 1990s, and that it was first construed by a Belgian court in a case against Peru in the year 2000. The Belgian decision was criticized for wrongly concluding that pari passu promised ratable payment to all holders of Peru’s external debt. A decade …

Is The United States Prepared For A Major Zika Virus Outbreak?, Lawrence O. Gostin, James G. Hodge Jr.

Georgetown Law Faculty Publications and Other Works

Zika virus has emerged as a global public health crisis with active transmission in the Americas and Caribbean. The World Health Organization (WHO) declared a Public Health Emergency of International Concern (PHEIC), and recently WHO reported there is a scientific consensus that Zika is a cause of microcephaly and Guillain-Barré syndrome (GBS). In the U.S. the Centers for Disease Control and Prevention (CDC) activated its emergency operations center at its highest capacity. President Obama requested $1.86 billion in emergency funding. Shamefully, Congress has yet to appropriate the funding needed for Zika preparedness, and the President has had to reallocate Ebola …

Disrupting The Path From Childhood Trauma To Juvenile Justice: An Upstream Health And Justice Approach, Yael Cannon, Andrew Hsi

Georgetown Law Faculty Publications and Other Works

A groundbreaking public health study funded by the U.S. Centers for Disease Control and Prevention (CDC) and the Kaiser Foundation found astoundingly high rates of childhood trauma, including experiences like abuse, neglect, parental substance abuse, mental illness, and incarceration. Hundreds of follow-up studies have revealed that multiple traumatic adverse childhood experiences (or “ACEs”) make it far more likely that a person will have poor mental health outcomes in adulthood, such as higher rates of depression, anxiety, suicide attempts, and substance abuse. Interestingly, the original ACE Study examined a largely middle-class adult population living in San Diego, but subsequent follow-up studies …

The United Nations Sustainable Development Goals: Achieving The Vision Of Global Health With Justice, Eric A. Friedman, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

We are resolved to free the human race from the tyranny of poverty and want and to heal and secure our planet” (UN General Assembly, 2015, September 25, preamble). So pronounces the 2030 Agenda, the United Nations declaration on the Sustainable Development Goals (SDGs), adopted on September 25, 2015, succeeding the Millennium Development Goals (MDGs). If achieved, the SDGs will secure an improved level of health, development, and global justice. However, if the international community fails to live up to its commitments, an untold number of people will likely perish prematurely, people’s opportunities to thrive will be cut off, social …

Legal Formulations Of A Human Right To Information: Defining A Global Consensus, Kimberli Kelmor

Georgetown Law Faculty Publications and Other Works

There is a growing body of law across the globe that seeks to define a right to information. Any study of such laws quickly reveals a great diversity of definitions for both the type of information covered and the nature of the right. Access to various particular types of information is routinely granted in piecemeal fashion through all levels of government including national sub-constitutional laws, national constitutions, and regional and international treaties. In the hierarchy of individual rights, constitutionally granted rights are commonly perceived as the strongest and are most likely to be accepted as inviolable. Thus, the increasing number …

Don't Forget The Standard Deduction, John R. Brooks

Georgetown Law Faculty Publications and Other Works

The presidential candidates this campaign season are a diverse group with a wide range of tax policy proposals, but they agree unanimously about one thing: the need to limit itemized deductions. Sadly, however, none of their proposals tackles how limits on itemized deductions would affect the other side of the equation—the standard deduction — which is also very much in need of reform.

Neglected Dimensions Of Global Security: The Global Health Risk Framework Commission, Lawrence O. Gostin, Carmen C. Mundaca-Shah, Patrick W. Kelley

Georgetown Law Faculty Publications and Other Works

The world has experienced global health crises ranging from novel influenzas (H5N1 and H1N1) and coronaviruses (SARS and MERS) to the Ebola and Zika viruses. In each case, governments and international organizations seemed unable to react quickly and decisively. Health crises have unmasked critical vulnerabilities— weak health systems, failures of leadership, and political overreaction and underreaction. The Global Health Risk Framework Commission, for which the National Academy of Medicine served as the secretariat, recently set out a comprehensive strategy to safeguard human and economic security from pandemic threats.

Evaluating Joint Ventures: Economic Analysis Checklist, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

This short article (for a symposium on joint ventures) provides practitioners and law professor with a 20 question checklist to guide the competitive effects analysis of the formation of a joint venture and the specific restraints and conduct of the venture. The questions mainly focus on ventures among actual or potential competitors, though some of the questions also are relevant for ventures involving complementary product firms. The questions concern potential competitive harms, potential competitive benefits, and the determination of net competitive effects. While this sequencing follows the standard burden-shifting formulation of the rule of reason decision process, the article notes …

Reconstructing Rfra: The Contested Legacy Of Religious Freedom Restoration, Martin S. Lederman

Georgetown Law Faculty Publications and Other Works

Almost every member of Congress voted to approve the Religious Freedom Restoration Act of 1993 (RFRA), a bill endorsed by an unprecedented coalition of dozens of religious and civil rights organizations spanning the political and ideological spectrum. President Clinton quipped at the signing ceremony that perhaps only divine intervention could explain such an unusual meeting of the minds: the establishment of “new trust” across otherwise irreconcilable “ideological and religious lines,” he remarked, “shows . . . that the power of God is such that, even in the legislative process, miracles can happen.”

The RFRA consensus was especially “miraculous” because the …

The Missing Tax Benefit Of Donor-Advised Funds, John R. Brooks

Georgetown Law Faculty Publications and Other Works

The second largest charitable organization in the country in terms of annual money raised is not the Red Cross, the Salvation Army, or the YMCA— it’s Fidelity Investments. The sixth largest is Charles Schwab Corp. Vanguard Group Inc. is No. 10. Needless to say, Fidelity, Schwab, and Vanguard are not running hospitals or soup kitchens. Rather, they are the three largest sponsoring organizations of donor-advised funds (DAFs).

DAFs are accounts established by contributions from charitable donors to a sponsoring organization that pools and manages many different DAFs. The DAF then makes distributions to operating charities based on the advice of …

Adverse Childhood Experiences In The New Mexico Juvenile Justice Population, Yael Cannon, George Davis, Andrew Hsi, Alexandra Bochte

Georgetown Law Faculty Publications and Other Works

Faculty from the University of New Mexico (UNM) School of Law and the UNM School of Medicine, and New Mexico’s Children, Youth and Families Department (CYFD) initiated a joint project to look at the prevalence of Adverse Childhood Experiences (ACEs) nationally and in New Mexico. The study was intended to better establish the association between early childhood trauma and delinquency, as well as to explore the role that law and medicine can play in ensuring better health and juvenile justice outcomes for children who have experienced ACEs.

The Emerging Zika Pandemic: Enhancing Preparedness, Lawrence O. Gostin, Daniel Lucey

Georgetown Law Faculty Publications and Other Works

The Zika virus (ZIKV), a flavivirus related to yellow fever, dengue, West Nile, and Japanese encephalitis, originated in the Zika forest in Uganda and was discovered in a rhesus monkey in 1947. The disease now has “explosive” pandemic potential, with outbreaks in Africa, Southeast Asia, the Pacific Islands, and the Americas. Since Brazil reported Zika virus in May 2015, infections have occurred in at least 20 countries in the Americas. Puerto Rico reported the first locally transmitted infection in December 2015, but Zika is likely to spread to the United States. The Aedes species mosquito (an aggressive daytime biter) that …