Law Commons^™

Wto’Ing A Resolution To The China Subsidy Problem, Chad P. Brown, Jennifer A. Hillman

Georgetown Law Faculty Publications and Other Works

The United States, European Union, and Japan have begun a trilateral process to confront the Chinese economic model, including its use of industrial subsidies and deployment of state-owned enterprises. This paper seeks to identify the main areas of tension and to assess the legal-economic challenges to constructing new rules to address the underlying conflict. It begins by providing a brief history of subsidy disciplines in the General Agreement on Tariffs and Trade (GATT) and the World Trade Organization (WTO) predating any concerns introduced by China. It then describes contemporary economic problems with China's approach to subsidies, their impact, and the …

The “Conscience” Rule: How Will It Affect Patients’ Access To Health Services?, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

On May 2, 2019, the US Department of Health and Human Services (HHS) and Office of Civil Rights (OCR) released a final rule that heightens the rights of hospitals and health workers to refuse to participate in patients’ medical care based on religious or moral grounds. The rule covers OCR’s authority to investigate and enforce violations of 25 federal “conscience protection” laws. Tied to the US Constitution’s spending power, the rule applies to state and local governments, as well as public and private health care professionals and entities if they receive federal funds such as Medicare or Medicaid. The rule …

The Shallow State: The Federal Communications Commission And The New Deal, Daniel R. Ernst

Georgetown Law Faculty Publications and Other Works

American lawyers and law professors commonly turn to the New Deal for insights into the law and politics of today’s administrative state. Usually, they have looked to agencies created in the 1930s that became the foundation of the postwar political order. Some have celebrated these agencies; others have deplored them as the core of an elitist, antidemocratic Deep State. This article takes a different tack by studying the Federal Communications Commission, an agency created before the New Deal. For most of Franklin D. Roosevelt’s first two presidential terms, the FCC languished within the “Shallow State,” bossed about by patronage-seeking politicians, …

Mr. Try-It Goes To Washington: Law And Policy At The Agricultural Adjustment Administration, Daniel R. Ernst

Georgetown Law Faculty Publications and Other Works

In December 1933, Jerome Frank, the general counsel of the Agricultural Adjustment Administration but better for writing Law and the Modern Mind (1930), a sensational attack on legal formalism, told an audience at the Association of American Law Schools a parable about two lawyers in the New Deal, each forced to interpret same, ambiguous statutory language. The first lawyer, “Mr. Absolute,” reasoned from the text and canons of statutory interpretation without regard for the desirability of the outcome. “Mr. Try-It,” in contrast, began with the outcome he thought desirable. He then said to himself, “The administration is for it, and …

The Corporate Purpose Of Social License, Hillary A. Sale

Georgetown Law Faculty Publications and Other Works

This Article deploys the sociological theory of social license, or the acceptance of a business or organization by the relevant communities and stakeholders, in the context of the board of directors and corporate governance. Corporations are generally treated as “private” actors and thus are regulated by “private” corporate law. This construct allows for considerable latitude. Corporate actors are not, however, solely “private.” They are the beneficiaries of economic and political power, and the decisions they make have impacts that extend well beyond the boundaries of the entities they represent.

Using Wells Fargo and Uber as case studies, this Article explores …

Progressive And Populist Strands In American Constitutionalism, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

Many modern liberals believe that the federal government is captured by a “billionaire party” determined to wield public power for private gain. But many of them also believe in giving the federal government greatly enhanced powers, like administering “Medicare for all.”

There is a history to this contradiction. Modern liberalism is an amalgam of older populist and progressive impulses with deep roots in the country’s past. The populist impulse locates the source of economic oppression in government corruption. The solution to this problem is direct, popular democracy. Progressives tend to locate the source of economic oppression in the malfunction of …