Law Commons^™

Count The Limbs: Designing Robust Aggregation Clauses In Sovereign Bonds, Anna Gelpern, Ben Heller, Brad Setser

Georgetown Law Faculty Publications and Other Works

On August 29, 2014, the International Capital Market Association (ICMA) published new recommended terms for sovereign bond contracts governed by English law. One of the new terms would allow a super majority of creditors to approve a debtor’s restructuring proposal in one vote across multiple bond series. The vote could bind all bond holders, even if a series voted unanimously against restructuring, so long as enough holders in the other series voted for it. An apparently technical change, awkwardly named “single-limb aggregated collective action clauses (CACs)” promised to eliminate free-riders for the first time in the history of sovereign bond …

Forced Migration, The Human Face Of A Health Crisis, Lawrence O. Gostin, Anna E. Roberts

Georgetown Law Faculty Publications and Other Works

Nearly 60 million refugees, asylum-seekers and internally displaced persons (IDPs) fled their homes in 2014, predominately from war-torn Syria, Afghanistan and Somalia. The global response to assisting this vulnerable group has been wholly incommensurate with the need given the profound health hazards faced by forced migrants at each stage of their journey. The majority of forced migrants are housed in lower-income countries that do not have the infrastructure to assist the significant numbers of individuals who are crossing their borders and the humanitarian organizations who seek to assist in the response are grossly underfunded and under-resourced.

Countries have varying responsibilities …

The International Health Regulations 10 Years On: The Governing Framework For Global Health Security, Lawrence O. Gostin, Mary C. Debartolo, Eric A. Friedman

Georgetown Law Faculty Publications and Other Works

The World Health Organization (WHO) and its global health security treaty, the International Health Regulations (2005) (IHR) have lost the world's confidence after the West African Ebola epidemic. The epidemic led to several high-level reviews of the IHR and global health security more broadly. Here, we propose a series of recommendations for operational and legal reforms to enhance the functioning of the FCGH. It is critical that WHO act on them quickly, before the window of opportunity for fundamental reform closes.

WHO should ensure that all states fulfill their obligations to develop national core surveillance and response capacities, including through …

Revising The U.S. Vertical Merger Guidelines: Policy Issues And An Interim Guide For Practitioners, Steven C. Salop, Daniel P. Culley

Georgetown Law Faculty Publications and Other Works

Mergers and acquisitions are a major component of antitrust law and practice. The U.S. antitrust agencies spend a majority of their time on merger enforcement. The focus of most merger review at the agencies involves horizontal mergers, that is, mergers among firms that compete at the same level of production or distribution.

Vertical mergers combine firms at different levels of production or distribution. In the simplest case, a vertical merger joins together a firm that produces an input (and competes in an input market) with a firm that uses that input to produce output (and competes in an output market). …

Interpreting Liberty And Equality Through The Lens Of Marriage, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

In this essay, I argue that marriage, as described and prescribed in Obergefell v. Hodges, functions as a lens that distorts the principles of liberty and equality upon which the opinion is based. The Supreme Court’s language is saturated with paeans to marriage, to the degree that the opinion seems to suggest that the moral worthiness of same-sex couples who wish to marry provides the ultimate justification for recognizing a constitutional right. The conceptual fulcrum in this analysis is dignity, which other courts have interpreted as an intrinsic human right that extends to a pluralism of family forms, but …

Property As Institutions For Resources: Lessons From And For Ip, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

The idea of property in land as the paradigm case of property exercises despotic dominion over property thinking. From the perspective of evolving political economy, however, a land-centric model of property makes very little sense. Property institutions coordinate access to resources, and so it is reasonable to expect them to differ in ways that respond to the characteristics of those resources. The debate about whether intellectual property (IP) is property is instructive. IP scholars have pursued the property debate using a conceptual framework derived from common law real property doctrines and organized around the practical and theoretical problems associated with …

Imagining Global Health With Justice: In Defense Of The Right To Health, Eric A. Friedman, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

The singular message in Global Health Law is that we must strive to achieve global health with justice—improved population health, with a fairer distribution of benefits of good health. Global health entails ensuring the conditions of good health—public health, universal health coverage, and the social determinants of health—while justice requires closing today’s vast domestic and global health inequities. These conditions for good health should be incorporated into public policy, supplemented by specific actions to overcome barriers to equity.

A new global health treaty grounded in the right to health and aimed at health equity—a Framework Convention on Global Health (FCGH)—stands …

Breaking Beps: The New International Tax Diplomacy, Itai Grinberg

Georgetown Law Faculty Publications and Other Works

International tax avoidance by multinational corporations is now front-page news. In a time of public austerity, citizens and legislators around the world have focused on the erosion of the corporate income tax base. In response, in 2012 the G-20 — the gathering of the leaders of the world’s twenty largest economies — launched the “Base Erosion and Profit Shifting” (BEPS) project, the most extensive attempt to change international tax norms since the 1920s.

This article is the first to explain that in the course of the BEPS project, the field of international tax has adopted the institutional and procedural architecture …

Cguppi: Scoring Incentives To Engage In Parallel Accommodating Conduct, Serge Moresi, David Reitman, Steven C. Salop, Yianis Sarafidis

Georgetown Law Faculty Publications and Other Works

We propose an index for scoring coordination incentives, which we call the “coordination GUPPI” or cGUPPI. While the cGUPPI can be applied to a wide range of coordinated effects concerns, it is particularly relevant for gauging concerns of parallel accommodating conduct (PAC), a concept that received due prominence in the 2010 U.S. Horizontal Merger Guidelines. PAC is a type of coordinated conduct whereby a firm raises price with the expectation—but without any prior agreement—that one or more other firms will follow and match the price increase. The cGUPPI is the highest uniform price increase that all the would-be coordinating firms …

From Hierarchies To Markets: Fedex Drivers And The Work Contract As Institutional Marker, Julia Tomassetti

Georgetown Law Faculty Publications and Other Works

Judges are often called upon today to determine whether certain workers are “employees” or “independent contractors.” The distinction is important, because only employees have rights under most statutes regulating work, including wage and hour, anti-discrimination, and collective bargaining law. Too often judges exclude workers from statutory protection who resemble what legal scholars have described as typical, industrial employees — long-term, full-time workers with set wages and routinized responsibilities within a large firm. To explain how courts reach these counterintuitive results, the article examines recent federal decisions finding that FedEx delivery drivers are independent contractors rather than employees. It argues that …

Behavioral Ethics, Behavioral Compliance, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

The design of an effective legal compliance system for an organization fearing prosecution for white-collar crime or regulatory violations requires skill at predicting human behavior. It is entirely plausible to use the economist’s simplifying assumptions of rational choice and pecuniary self-interest in making these predictions. But the realism of these assumptions has been under attack for decades now, suggesting that we should at least consider more nuanced behavioral possibilities when designing and implementing compliance programs. The label “behavioral compliance” can be attached to the design and management of compliance that draws from this wider range of behavioral predictions about individual …

King V Burwell: Subsidizing Us Health Insurance For Low- And Middle-Income Individuals, Lawrence O. Gostin, Mary C. Debartolo, Daniel Hougendobler

Georgetown Law Faculty Publications and Other Works

In King v. Burwell, the U.S. Supreme Court once again saved the Affordable Care Act (ACA) by upholding subsidies (tax credits) offered to low- and middle-income individuals for insurance bought on federal exchanges. A contrary opinion would have put at risk health insurance for 6.4 million Americans and threatened to destabilize insurance markets for millions more.

The ACA is supported by four interlocking reforms, each of which are necessary to realize its promise of expanding health care coverage: (1) guaranteed issue (prohibiting discrimination based on pre-existing conditions), (2) community rating (barring insurers from imposing higher premiums based on health …

Those Awful Tahrir Rapes, Lama Abu-Odeh

Georgetown Law Faculty Publications and Other Works

This essay highlights the myriad ways in which street sexual harassment of women in Egypt, of which I argue the mass rapes of Tahrir are an egregious instance thereof, disciplines women's bodies. It describes briefly and dismisses the frameworks for understanding those practices proposed by the left, the right and the government. I also describe the role that law, in conjunction with its lax enforcement, plays in intensifying this regulation.

The essay uses purposefully the fighting radical feminist pronoun "we" to describe the predicament. I "am" an Egyptian women. I consider myself an ally in their attempt to understand, resist …

Public Health, Universal Health Coverage, And Sustainable Development Goals: Can They Coexist?, Harald Schmidt, Lawrence O. Gostin, Ezekiel Emanuel

Georgetown Law Faculty Publications and Other Works

In her 2012 reconfirmation speech as WHO Director-General, Dr. Margaret Chan asserted: "universal coverage is the single most powerful concept that public health has to offer. It is our ticket to greater efficiency and better quality. It is our savior from the crushing weight of chronic noncommunicable diseases that now engulf the globe ". The UN General Assembly is currently considering proposals for Sustainable Development Goals (SDGs), succeeding the Millennium Development Goals. SDGs, focusing on health, specifically includes universal health coverage (UHC) among its targets. Unquestionably, UHC is timely and fundamentally important. However, its promotion also entails substantial risks. A …

The Evolution And Vitality Of Merger Presumptions: A Decision-Theoretic Approach, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

This article reviews the formulation and evolution of the Philadelphia National Bank anticompetitive presumption through the lens of decision theory and Bayes Law. It explains how the economic theory, empirical evidence and experience are used to determine a presumption and how that presumption interacts with the reliability of relevant evidence to rationally set the appropriate burden of production and burden of persuasion to rebut the presumption. The article applies this reasoning to merger presumptions. It also sketches out a number of non-market share structural factors that might be used to supplement or replace the current legal and enforcement presumptions for …

Middle East Respiratory Syndrome: A Global Health Challenge, Lawrence O. Gostin, Daniel Lucey

Georgetown Law Faculty Publications and Other Works

Beginning in May 2015, Middle-East respiratory syndrome (MERS) experienced its first publicly reported “super-spreading” event in South Korea. By mid-June, more than 120 cases and 11 deaths in South Korea had been linked to a businessman returning from travel to Bahrain, United Arab Emirates, the Kingdom of Saudi Arabia and Qatar. Globally more than 1200 had been infected of whom more than 450 died—a high fatality rate of 37%.

What are the most effective legal, social, and public health responses to MERS and other emerging diseases? First, the World Health Organization’s International Health Regulations (IHR) did not effectively guide the …

Inference Under Stability Of Risk Preferences, Levon Barseghyan, Francesca Molinari, Joshua C. Teitelbaum

Georgetown Law Faculty Publications and Other Works

We leverage the assumption that preferences are stable across contexts to partially identify and conduct inference on the parameters of a structural model of risky choice. Working with data on households' deductible choices across three lines of insurance coverage and a model that nests expected utility theory plus a range of non-expected utility models, we perform a revealed preference analysis that yields household-specific bounds on the model parameters. We then impose stability and other structural assumptions to tighten the bounds, and we explore what we can learn about households' risk preferences from the intervals defined by the bounds. We further …

Supreme Court Institute Annual Report, 2014-2015, Georgetown University Law Center, Supreme Court Institute

SCI Papers & Reports

During the 2014-2015 academic year-–corresponding to the U.S. Supreme Court’s October Term (OT) 2014-–the Supreme Court Institute (SCI) provided moot courts for advocates in 100% of the cases heard by the Supreme Court, offered a variety of programs related to the Supreme Court, and continued to integrate the moot court program into the education of Georgetown Law students. A list of all SCI moot courts held in OT 2014-–arranged by argument sitting and date of moot and including the name and affiliation of each advocate and the number of observers-–follows the narrative portion of this report.

The Federal Reserve And A Cascade Of Failures: Inequality, Cognitive Narrowness And Financial Network Theory, Emma Coleman Jordan

Georgetown Law Faculty Publications and Other Works

The recent financial crisis hollowed out the core of American middle-class financial stability. In the wake of the financial crisis, household net worth in the U.S. fell by 24%, for a loss of $16 trillion. Moreover, retirement accounts, the largest class of financial assets, took a steep drop in value, as did house prices, and these two classes of assets alone represent approximately 43% of all household wealth. The losses during the principal crisis years, 2007–2009, were devastating, “erasing almost two decades of accumulated prosperity,” in the words of a 2013 report. By the Federal Reserve. Beyond these direct household …

[Un]Happy Together: Why The Supremacy Clause Preempts State Law Digital Performance Rights In Radio-Like Streaming Of Pre-1972 Sound Recordings, Julie L. Ross

Georgetown Law Faculty Publications and Other Works

Lovers of the music of Frank Sinatra, Elvis Presley, Etta James, and hundreds of other recording artists whose records were made before February 15, 1972, may soon have a hard time hearing these great artists on any satellite or Internet radio service. Recently, two federal district courts have found that state laws were violated when satellite radio broadcaster Sirius XM Radio included pre-1972 sound recordings in its broadcasts without the owners’ permission, but these courts did not consider-–and the parties did not argue-–how the Supremacy Clause applies to those state law claims. This article argues that state laws purporting to …

Strengthening The Detection Of And Early Response To Public Health Emergencies: Lessons From The West African Ebola Epidemic, Mark J. Siedner, Lawrence O. Gostin, Hilarie H. Cranmer, John D. Kraemer

Georgetown Law Faculty Publications and Other Works

Background

In the year since the World Health Organization (WHO) notified of an Ebola outbreak in West Africa, more than 24,000 cases have been reported and over 10,000 individuals have died. Moreover, countless non-Ebola deaths have occurred as a result of health system closings and an international aid effort in the $USD billions has been invested in control efforts. While the international response to the West African Ebola virus disease epidemic eventually exemplified the great potential of the global public health community, the protracted early response also revealed critical gaps, which likely resulted in exacerbation of the epidemic. It is …

Risks, Goals, And Pictographs: Lawyering To The Social Entrepreneur, Alicia E. Plerhoples

Georgetown Law Faculty Publications and Other Works

Scholars have argued that transactional lawyers add value by mitigating the potential for post-transaction litigation, reducing transaction costs, acting as reputational intermediaries, and lowering regulatory costs. Effective transactional attorneys understand their clients’ businesses and the industries or contexts in which those businesses operate. Applied to the start-up social enterprise context, understanding the client includes understanding the founders’ values, preferences, and proclivity for risk. The novel transactions and innovative solutions pursued by emerging social entrepreneurs may not lend themselves well to risk avoidance. For example, new corporate forms such as the benefit corporation are untested, yet appeal to many social entrepreneurs …

The Zombie First Amendment, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

Scholarly and popular critiques of contemporary free speech jurisprudence have noted an attitude of unquestioning deference to the political power of money. Rather than sheltering the ability to speak truth to power, they have lamented, the contemporary first amendment shelters power’s ability to make and propagate its own truth. This essay relates developments in recent first amendment jurisprudence to a larger struggle now underway to shape the distribution of information power in the era of informational capitalism. In particular, it argues that cases about political speech — cases that lie at the first amendment’s traditional core — tell only a …

Section 702 And The Collection Of International Telephone And Internet Content, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

Section 702 of the Foreign Intelligence Surveillance Act (FISA) authorizes the NSA to collect the electronic communications of non-U.S. targets located overseas. Recent media reports and declassified documents reveal a more extensive program than publicly understood. The article begins by considering the origins of the current programs and the relevant authorities, particularly the transfer of part of the post-9/11 President’s Surveillance Program to FISA. It outlines the contours of the 2007 Protect America Act, before its replacement in 2008 by the FISA Amendments Act (FAA). The section ends with a brief discussion of the current state of foreign intelligence collection …

Law, Ethics, And Public Health In The Vaccination Debates: Politics Of The Measles Outbreak, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

The measles outbreak of early 2015 is symptomatic of a larger societal problem–the growing number of parents who decide against vaccinating their children. This failure is causing the resurgence of childhood diseases once eliminated from the United States.

This article explores the legal and ethical landscape of vaccine exemptions. While all states require childhood vaccinations, they differ significantly in the types of religious and/or philosophical exemptions permitted, the rigor of the application process, and available review mechanisms. States with relaxed exemption policies disproportionately experience more outbreaks of vaccine-preventable disease.

Vaccine exemptions are an illustration of the “tragedy of the commons,” …

Effectively Regulating E-Cigarettes And Their Advertising—And The First Amendment, Eric N. Lindblom

O'Neill Institute Papers

If tobacco smoking did not exist in the United States, there would be no reason, from a public health perspective, to allow addictive, nicotine-containing e-cigarettes to be marketed and sold. Because e-cigarette use, by itself, is neither beneficial nor benign to users and nonusers, the only public health justification for allowing e-cigarettes in the existing U.S. market would be if doing so would not sustain or increase existing smoking levels but would help smokers quit completely or provide addicted smokers a less harmful way to obtain the nicotine they crave. Yet e-cigarettes are now pervasive in the U.S. market, being …

Indonesia Has It Backward: It's Not E-Cigarettes That's The Problem But Smoking, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Indonesia has announced it will be banning e-cigarettes. But that would do nothing to reduce smoking, which should be the main target of those interested in reducing tobacco use deaths and harms. Rather than ban e-cigarettes, it makes more sense to regulate them effectively so that they can serve as a useful anti-smoking tool. The availability of e-cigarettes to smokers can also make much more aggressive anti-smoking strategies more practically and politically viable-–perhaps even paving the way for banning cigarettes, instead.

Pluralism And Its Perils: Navigating The Tension Between Gay Rights And Religious Expression, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

The conflict between gay equality claims and religious liberty claims permeates debates over marriage equality and LGBT civil rights. Using as its centerpiece a decision that forced Georgetown University to provide benefits for a gay student organization, this article examines both the doctrinal underpinnings of how courts resolve the tension between gay rights and religion and the principles of pluralism that are at stake.

The Georgetown case is rightly understood as an exemplar of judicial minimalism. This article argues that the values of learning things undecided, while real, may be outweighed by lost opportunities for advancing principles that also foster …

Community Lawyering: Introductory Thoughts On Theory And Practice, Michael R. Diamond

Georgetown Law Faculty Publications and Other Works

There are several fundamental questions that one might ask in seeking the meaning of the term "community lawyer." Albeit somewhat theoretical, the most basic questions involve delving into exactly what is meant by the term "community." For what, exactly, is the community-lawyer lawyering? Further, once a client has been identified, questions will arise about how the lawyer should relate to that client and about the role the lawyer ought to play in assisting the client to achieve its goals. There is a long and rich literature concerning the latter question but a fairly sparse body of legal writing on the …

Is Using The Public Trust Doctrine To Protect Public Parkland From Visual Pollution Justifiable Doctrinal Creep?, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

This Article asks whether the public trust doctrine should be applied to stop the construction of a multistory commercial building that will tower over the tree line of Palisades Interstate Park. The building, which received a variance from a local New Jersey zoning commission, will ruin views of the Park, particularly from scenic overlooks across the Hudson River in New York, like the Metropolitan Museum’s Cloisters and the George Washington Bridge. To make this argument, the author draws on the work of renowned public trust scholars, Professors Joseph Sax and Carol Rose, among others. Based on the doctrine’s adaptability to …