Law Commons^™

Fixing "Litigating The Fix", Steven C. Salop, Jennifer E. Sturiale

Georgetown Law Faculty Publications and Other Works

Merging firms have increasingly been asking trial courts to adjudicate their merger “as remedied” by a voluntary “fix.” These are remedies that have been rejected by (or never proposed to) the agency. This procedure is known as Litigating-the-Fix” (“LTF”). This article proposes a judicial procedure for managing cases in which the merging parties attempt to LTF. Our recommendations flow from a decision theory approach informed by the relevant LTF case law, the merger enforcement record, the language and goals of Section 7, and an economic analysis of the incentives of the parties and agencies created by LTF. Our recommendation addresses …

The Antiregulatory Arsenal, Antidemocratic Can(N)Ons, And The Waters Wars, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

The Clean Water Act has become a centerpiece in an enduring multifront battle against both environmental regulation and federal regulatory power in all of its settings. This Article focuses on the emergence, elements, and linked uses of an antiregulatory arsenal now central to battles over what are federally protected “waters of the United States.” This is the key jurisdictional hook for CWA jurisdiction, and hence, logically, has become the heart of CWA contestation. The multi-decade battle over Waters protections has both drawn on emergent antiregulatory moves and generated new weapons in this increasingly prevalent and powerful antiregulatory arsenal. This array …

The Common Law As Statutory Backdrop, Anita S. Krishnakumar

Georgetown Law Faculty Publications and Other Works

Amidst the whirl of commentary about how the U.S. Supreme Court has become increasingly textualist and what precise shape modern textualism should take, the Court’s continued reliance on one decidedly atextual interpretive tool has gone largely unnoticed — the common law. Indeed, the common law has played an underappreciated, often dispositive, gap-filling role in statutory interpretation for decades, even as the textualist revolution has sidelined other non-text-focused interpretive tools. But despite the persistent role that the common law has played in statutory interpretation cases, the use of common law rules and definitions as an interpretive resource is surprisingly understudied and …

From Experiencing Abuse To Seeking Protection: Examining The Shame Of Intimate Partner Violence, A. Rachel Camp

Georgetown Law Faculty Publications and Other Works

Shame permeates the experience of intimate partner violence (IPV). People who perpetrate IPV commonly use tactics designed to cause shame in their partners, including denigrating their dignity, undermining their autonomy, or harming their reputation. Many IPV survivors report an abiding sense of shame as a result of their victimization—from a lost sense of self, to self-blame, to fear of (or actual) social judgment. When seeking help for abuse, many survivors are directed to, or otherwise encounter, persons or institutions that reinforce rather than mitigate their shame. Survivors with marginalized social identities often must contend not only with the shame of …

Infrastructure Sharing In Cities, Sheila Foster

Georgetown Law Faculty Publications and Other Works

In this Essay, I reflect on the different ways in which cities engaged in what I call “infrastructure sharing” during the COVID-19 pandemic. Cities around the world responded to the pandemic by repurposing their streets and sidewalks into outdoor seating, dining spaces, and car-free pedestrian corridors. At the same time, many cities and states also faced calls to “reclaim” underutilized public and private structures like empty houses and hotels and put them to a use responsive to the crisis. The Essay will highlight the difference between sharing property and assets that are part of the “public estate” and dedicated exclusively …

Teaching Doctrine For Justice Readiness, Amanda Levendowski

Georgetown Law Faculty Publications and Other Works

Clinics strive to teach students lawyering skills. But clinics should also teach students how to use those skills to confront injustice and promote justice, an approach Jane Aiken refers to as “justice readiness.” Casework for clients presents many opportunities for students to become justice ready, but not all matters do so equally. Clinics come with built-in limitations. Some matters involve injustices in one area of law while leaving others untouched. And others don’t require creative advocacy for justice. Casework remains a powerful driver of justice readiness, but it cannot do the job alone.

Teaching students doctrine through a social justice …

The Academic Medical-Legal Partnership: Training The Next Generation Of Health & Legal Professionals To Work Together To Advance Health Justice, Vicki W. Girard, Deborah F. Perry, Lisa P. Kessler, Yael Cannon, Prashasti Bhatnagar, Jessica Roth

Georgetown Law Faculty Publications and Other Works

As the national medical-legal partnership (MLP) movement grows, the need for doctors, nurses, social workers, other health professionals, and lawyers who have the knowledge, skills, and experience to collaborate effectively in this holistic healthcare approach is increasing. Given the unique role that institutions of higher education play in training students as they develop their professional identities, members of the Georgetown University Health Justice Alliance sought to build on prior efforts to define the MLP model by focusing on MLPs that exist in academic settings as a specific type of MLP. This report is based on the results of an environmental …

Can Micropolitan Areas Bridge The Urban/Rural Divide?, Sheila Foster, Clayton P. Gillette

Georgetown Law Faculty Publications and Other Works

There exists a well-known and significant divide between urban and rural areas in the United States. The divide has been documented along multiple dimensions – social, economic, and political – and is seen as a detrimental characteristic of our national identity and capacity for both economic development and civil political discourse. In this Article, we explore a subset of the urban/rural divide and propose a mechanism for reducing its economic and political effects within that limited realm. Specifically, we focus on the subset of rural areas that lie within what the Office of Management and Budget defines as micropolitan areas. …

Brief Of Michelle M. Wu As Amicus Curiae, Michelle M. Wu

Georgetown Law Faculty Publications and Other Works

Copyright is, above all else, a balancing act. This equity principle is especially important when technology collides with traditional copyright. Market effects are certainly an important feature of that balance but must be weighed against other equitable interests, regardless of their technological form. Literary criticism, second-hand sales, and library lending all have the potential to impact sales but nevertheless are considered social goods that copyright is intended to foster.

Controlled digital lending ("CDL") was established to innovate these core, well-established components of copyright law, allowing libraries to secure their collections and maintain their relevance as physical stewards of knowledge in …

What Nations Owe Each Other Before The Next Pandemic, Lawrence O. Gostin, Kevin A. Klock, Sam F. Halabi, Katie Gottschalk, Katherine Ginsbach, Kashish Aneja

Georgetown Law Faculty Publications and Other Works

On December 1, 2021, the World Health Assembly adopted a resolution establishing an Intergovernmental Negotiating Body (INB) to determine the content and form of a new pandemic agreement. A portion of the public has advocated for a non-binding agreement while others stress that nationalism should be prevented, with steps taken to monitor and enforce national compliance. The INB has needed to grapple with how the principle of national sovereignty, and the accompanying principle of non-interference, will be addressed with respect to the agreement’s content and form, including obligations to share data, resources, and personnel, and to relinquish control over certain …

The End Of Roe V Wade And New Legal Frontiers On The Constitutional Right To Abortion, I. Glenn Cohen, Melissa Murray, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

On June 24, 2002, the US Supreme Court ended the constitutional right to abortion in Dobbs v Jackson Women’s Health Organization. The Court’s majority decision authored by Justice Samuel Alito was substantially the same as a draft opinion leaked a month earlier. The regulation of abortion will now be decided by the states, with about half currently or will soon ban or severely restrict abortion access. In this Viewpoint, we explain the Dobbs ruling and what it means for physicians, public health, and society.

We focus on new legal frontiers in the constitutional right to abortion, including medication abortion …

The Constitutional (And Political) Safeguards Against Impeachment, Victoria Frances Nourse

Georgetown Law Faculty Publications and Other Works

Will the Trump impeachments inspire a flurry of future presidential impeachments? Will the second Trump impeachment, which occurred after the President left office, spur impeachments of lesser, former government officials? These and other questions emerged during the 2022 Missouri Law Review Symposium and on the Senate floor during the Trump impeachment trials. I have argued that we can make an educated prognosis about these possibilities based on constitutional structure. I called this argument the “political safeguards” of impeachment in my recent book, The Impeachments of Donald Trump: An Introduction to Constitutional Argument. What I called political safeguards, invoking the …

The Federal Global Migration And Quarantine Network: A Report From The National Academies Of Sciences, Engineering, And Medicine, Lawrence O. Gostin, Georges C. Benjamin, Tequam Worku

Georgetown Law Faculty Publications and Other Works

The COVID-19 pandemic thrust the US Centers for Disease Control and Prevention (CDC) Division of Global Migration and Quarantine (DGMQ) into the epicenter of the national response. DGMQ is charged with preventing the importation of infectious diseases at land and sea borders and the spread of those diseases within the US. For more than 50 years, the agency’s comprehensive quarantine system, its regulatory powers, and scientific guidance has placed DGMQ at the forefront of emergency response. CDC requested the National Academies of Sciences, Engineering, and Medicine (NASEM) to assess the performance of the DGMQ during the COVID-19 pandemic, covering 5 …

A New Architecture For Global Health Emergency Preparedness And Response—The Imperative Of Equity, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Even before COVID-19 emerged in Wuhan, China, in December 2019, the prevailing global narrative was inequity—in health, income, race, and socioeconomic status. COVID-19 amplified all these inequities. Early in the pandemic, low-income countries were left without key medical resources, such as diagnostic tests, personal protective equipment, and ventilators. By 2021, inequitable vaccine distribution captured global attention and outrage. This year, high-income countries have bought the lion’s share of Paxlovid, a highly effective antiviral treatment. Vaccine inequities remain with only 16% of people in low-income countries having received at least 1 vaccine dose vs 80% of people across high-income countries. This …

Copyright Protection For Works In The Language Of Life, Nina Srejovic

IPIPC Papers & Reports

In 2001, the DNA Copyright Institute sought to capitalize on the fear of human cloning by offering celebrities the opportunity to use copyright to secure exclusive rights in their DNA. At the time, a Copyright Office spokesperson pointed out that a person’s DNA “is not an original work of authorship.” That statement is no longer self-evident. A scientist claims to have used CRISPR technology to create a pair of twin girls with human-altered DNA that may provide immunity to HIV infection and improved cognitive function. Through gene therapy, doctors can “author” changes to patients’ DNA to cure disease. Scientists “edit” …

At Long Last, Who Member States Agree To Fix Its Financing Problem, Alexandra Finch, Kevin A. Klock, Eric A. Friedman, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Those who deeply care about improving the health and well-being of all people no matter their personal circumstances have long argued that sustainably financing the World Health Organization is a cornerstone imperative—and for good reason. WHO is the only institution with the mandate and legitimacy to sit at the center of the global health architecture and bring together all stakeholders to coordinate and execute all-of-humanity approaches. Now after decades of inaction, WHO's member states have agreed to substantially improve the agency’s financing model, giving it greater flexibility and enhanced capacity to fulfill its mandate as the world’s health champion. What …

Unmet Legal Needs As Health Injustice, Yael Cannon

Georgetown Law Faculty Publications and Other Works

In a seminal report in 2006, the American Bar Association recognized that millions of low-income Americans have civil legal issues that go unaddressed, jeopardizing their fundamental and basic human needs for shelter, sustenance, safety, family stability, and access to health care. The pandemic has only exacerbated this crisis. When rights in these areas go unenforced for Americans marginalized by poverty and race, their health can suffer, compounding health inequities. The fundamental civil legal needs of low-income Americans must be addressed in order to ensure health equity. This Article argues that unmet fundamental legal needs serve as determinants of health and …

Resisting Face Surveillance With Copyright Law, Amanda Levendowski

Georgetown Law Faculty Publications and Other Works

Face surveillance is animated by deep-rooted demographic and deployment biases that endanger marginalized communities and threaten the privacy of all. But current approaches have not prevented its adoption by law enforcement. Some companies have offered voluntary moratoria on selling the technology, leaving many others to fill in the gaps. Legislators have enacted regulatory oversight at the state and city levels, but a federal ban remains elusive. Both approaches require vast shifts in practical and political will, each with drawbacks. While we wait, face surveillance persists. This Article suggests a new possibility: face surveillance is fueled by unauthorized copies and reproductions …

Financing The Future Of Who, Lawrence O. Gostin, Kevin A. Klock, Helen Clark, Fatimatou Zahra Diop, Dayanath Jayasuriya, Jemilah Mahmood, Attiya Waris

Georgetown Law Faculty Publications and Other Works

WHO's resources have consistently lagged behind its constitutional mandate. There is a deep misalignment between what governments and the public expect WHO to do and what the organisation is resourced to do. WHO is challenged by low levels of political will to increase its financing, strained government treasuries, and a battle over control of priorities. WHO's Executive Board has charged the Working Group on Sustainable Financing with identifying a viable plan for sustainable financing before the World Health Assembly in May. There is no time to lose. WHO's resourcing strategy must match its mission with assured financial support from member …

Deep-State Constitutionalism, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this review, I explain how "Common Good Constitutionalism" taps into a deficiency of the conservative legal movement: namely, its exclusive focus on the law "as it is" at the expense of the underlying abstract normative principles that justify the positive law of our written Constitution. Due to this deficiency, the conservative legal movement gives short shrift to the Declaration of Independence and the Ninth Amendment and the natural rights to which both refer. This deficiency is in need of correction. But any such correction does not justify the jettisoning of originalism as Vermeule proposes. Nor does Vermeule defend his …

Rebuilding Platform Antitrust: Moving On From Ohio V. American Express, Steven C. Salop, Daniel Francis, Lauren Sillman, Michaela Spero

Georgetown Law Faculty Publications and Other Works

Now that the immediate fallout from the Supreme Court’s blockbuster Amex decision has cooled, this Article aims to give a first draft of its place in antitrust history and to offer a roadmap for the next stage of the evolution of platform antitrust analysis. We focus on several issues that have not been fully analyzed in the literature. First, we argue that, rather than mangling the law of market definition, the Court should have explicitly permitted multi-market balancing of effects across the separate markets in which the platform was active. Second, we propose standards to implement such balancing in cases …

Random Justice, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

As recent Senate confirmation practices suggest, the Supreme Court is best understood as the head of a political branch of government, whose Justices are chosen in a process that makes their ideological views dispositive. Throughout the nation’s history, the Supreme Court has exercised its governing political ideology in ways that sacrifice the interests of nonwhites in order to advance the interests of Whites. In the present moment of heightened cultural sensitivity to structural discrimination and implicit bias, it would make sense to use affirmative action to help remedy the racially disparate distribution of societal resources that has been produced by …

Life After The Covid-19 Pandemic, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

After 2 years of a seemingly relentless pandemic that has upended work, education, and social interactions, the questions many are asking are when will we get back to normal and what will life be like after the COVID-19 pandemic? In truth, science cannot fully predict what SARS-CoV-2 variants will arise and the trajectory of the pandemic. Yet, history and informed scientific observations provide a guide to how—and when—society will return to pre-pandemic patterns of behavior. There will not be a single moment when social life suddenly goes back to normal. Instead, gradually, over time, most people will view COVID-19 as …

Risk Tradeoffs And Equitable Decision-Making In The Covid-19 Pandemic, Lawrence O. Gostin, Sarah A. Wetter

Georgetown Law Faculty Publications and Other Works

Since the start of the Covid-19 pandemic, societies have faced agonizing decisions about whether to close schools, shutter businesses, delay nonemergency health care, restrict travel, and authorize the use of emergency Covid-19 countermeasures under limited scientific understanding. Measures to control the spread of COVID-19 have disrupted our health, educational, and economic systems, tarnished our mental health, and took away our cherished time with family and friends. Conflicting advice from health agencies on the utility of public health measures left us wondering, was it all worth it? We still do not have all the answers to guide us through difficult risk-risk …

The History Wars And Property Law: Conquest And Slavery As Foundational To The Field, K-Sue Park

Georgetown Law Faculty Publications and Other Works

This Article addresses the stakes of the ongoing fight over competing versions of U.S. history for our understanding of law, with a special focus on property law. Insofar as legal scholarship has examined U.S. law within the historical context in which it arose, it has largely overlooked the role that laws and legal institutions played in facilitating the production of the two preeminent market commodities in the colonial and early Republic periods: expropriated lands and enslaved people. Though conquest and enslavement were key to producing property for centuries, property-law scholars have constructed the field of property law to be largely …

Supreme Court Ruling On The Texas Abortion Law: Beginning To Unravel Roe V Wade, I. Glenn Cohen, Rebecca Reingold, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

In 2021, Texas enacted an abortion statute, SB8, stating “a physician may not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child.” SB8’s prohibition applies broadly against anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion.” The law’s design is unprecedented, enforced solely by private lawsuits, providing damages of $10,000 or more for each abortion. SB8 prohibits government enforcement, with the explicit intent of preventing federal judicial review. SB8 clearly violates current Supreme Court precedent creating a constitutional right to …

The Us Supreme Court’S Rulings On Large Business And Health Care Worker Vaccine Mandates: Ramifications For The Covid-19 Response And The Future Of Federal Public Health Protection, Lawrence O. Gostin, Wendy E. Parmet, Sara Rosenbaum

Georgetown Law Faculty Publications and Other Works

On January 13, 2022, the Supreme Court issued 2 landmark rulings on the federal government’s power to mandate COVID-19 vaccinations. The Court curtailed the government’s ability to respond to the pandemic and may have also severely limited the authority of federal agencies to issue health and safety regulations.

In National Federation of Independent Business v Department of Labor, the Court blocked an Occupational Safety and Health Administration (OSHA) emergency temporary standard (ETS) requiring vaccination, subject to religious or disability accommodations, or weekly testing and masking in businesses with 100 or more employees. In Biden v Missouri, the Court …

The First 2 Years Of Covid-19: Lessons To Improve Preparedness For The Next Pandemic, Jennifer B. Nuzzo, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

On December 31, 2019, the World Health Organization (WHO) Country Office in China reported novel “viral pneumonias of unknown cause” in Wuhan, but China did not confirm case clusters until January 3, 2020. Two years later, more than 285 million cases and 5.4 million deaths have been reported. As of December 2021, more than 800 000 COVID-19 deaths have occurred in the US, surpassing the 675 446 total deaths that occurred during the great influenza pandemic of 1918. The COVID-19 pandemic reduced global economic growth by an estimated 3.2% in 2020, with trade declining by 5.3%; an estimated 75 million …

A Process For Politics, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

I argue that consistent and public process observance has a distinctly valuable function in sovereign debt restructuring, with no precise equivalent in national insolvency regimes. National regimes reflect the distribution bargains of their enactment, presumptively legitimate and binding. Debtors and creditors allocate insolvency losses in their shadow, with liquidation as a backstop and politics just outside the frame. All else equal, the restructuring process has a harder job with sovereign debt. There is no liquidation backstop and no default distribution scenario. Each crisis resolution episode must allocate losses from scratch among the country’s citizens, foreign and domestic creditors, and other …

Tax Now Or Tax Never: Political Optionality And The Case For Current-Assessment Tax Reform, David Gamage, John R. Brooks

Georgetown Law Faculty Publications and Other Works

The U.S. income tax is broken. Due to the realization doctrine and taxpayers’ consequent ability to defer taxation of gains, taxpayers can easily minimize or avoid the taxation of investment income, a failure that is amplified many times over when considering the ultra-wealthy. As a result, this small group of taxpayers commands an enormous share of national wealth yet pays paltry taxes relative to the economic income their wealth produces—a predicament that this Article condemns as being economically, politically, and socially harmful.

The realization doctrine is widely justified as an accommodation made for administrative convenience. Although there have been numerous …