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Georgetown University Law Center

2019

Articles 1 - 30 of 98

Full-Text Articles in Law

Human Rights For Health Across The United Nations, Benjamin Mason Meier, Lawrence O. Gostin Dec 2019

Human Rights For Health Across The United Nations, Benjamin Mason Meier, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

The United Nations (UN) plays a central role in realizing human rights to advance global health. Looking beyond state obligations, the UN has called on all its specialized agencies to mainstream human rights across all their activities. With globalization compelling these UN institutions to meet an expanding set of global challenges to underlying determinants of health, human rights are guiding these international organizations in addressing public health. These international organizations within the UN system are actively engaged in implementing health-related human rights—in both their mission and their actions to carry out that mission. Through this mainstreaming of human rights, global …


Critical Issues In Transportation 2019: Climate Change Resilience, Vicki Arroyo Dec 2019

Critical Issues In Transportation 2019: Climate Change Resilience, Vicki Arroyo

Georgetown Law Faculty Publications and Other Works

The climate is rapidly changing, bringing more frequent and extreme floods, droughts, and heatwaves, along with stronger hurricanes and more intense wildfires. Each year brings new record-breaking weather extremes; in the first six months of 2019, for example, a record number of U.S. counties flooded. July 2019 was the hottest month ever recorded for the world as a whole (1). Climate change is also melting glaciers, reducing the amount of sea ice, and raising sea levels, bringing devastation to coastal areas. From Louisiana to Alaska, many coastal communities are forced to make difficult decisions about whether to relocate …


Personality Disruption As Mental Torture: The Cia, Interrogational Abuse, And The U.S. Torture Act, David Luban, Katherine S. Newell Dec 2019

Personality Disruption As Mental Torture: The Cia, Interrogational Abuse, And The U.S. Torture Act, David Luban, Katherine S. Newell

Georgetown Law Faculty Publications and Other Works

This Article is a contribution to the torture debate. It argues that the abusive interrogation tactics used by the United States in what was then called the “global war on terrorism” are, unequivocally, torture under U.S. law. To some readers, this might sound like déjà vu all over again. Hasn’t this issue been picked over for nearly fifteen years? It has, but we think the legal analysis we offer has been mostly overlooked. We argue that the basic character of the CIA’s interrogation of so-called “high-value detainees” has been misunderstood: both lawyers and commentators have placed far too much emphasis …


The President And Nuclear Weapons: Authorities, Limits, And Process, Mary B. Derosa, Ashley Nicolas Dec 2019

The President And Nuclear Weapons: Authorities, Limits, And Process, Mary B. Derosa, Ashley Nicolas

Georgetown Law Faculty Publications and Other Works

There is no more consequential decision for a president than ordering a nuclear strike. In the Cold War, the threat of sudden nuclear annihilation necessitated procedures emphasizing speed and efficiency and placing sole decision-making authority in the president’s hands. In today’s changed threat environment, the legal authorities and process a U.S. president would confront when making this grave decision merit reexamination. This paper serves as a resource in the national discussion about a president’s legal authority and the procedures for ordering a nuclear strike, and whether to update them.


Brief Of Amici Curiae Law And Economics Scholars In Support Of Appellee And Affirmance, Mark A. Lemley, A. Douglas Melamed, Steven C. Salop Nov 2019

Brief Of Amici Curiae Law And Economics Scholars In Support Of Appellee And Affirmance, Mark A. Lemley, A. Douglas Melamed, Steven C. Salop

Georgetown Law Faculty Publications and Other Works

In reliance on Qualcomm’s FRAND promises, key SSOs incorporated its technologies into wireless standards. Qualcomm takes the position that its patented technologies are essential to those standards and, therefore, that any firm making or selling a standard-compliant product infringes its patents. As a result, the SSOs’ incorporation of Qualcomm’s patented technologies into wireless standards created a huge market for licenses to Qualcomm’s SEPs.

The district court held that Qualcomm used its chipset monopolies, not only to extract the high chip-set prices to which it was entitled, but also to perpetuate those monopolies by disadvantaging rival chip-makers and raising entry barriers. …


Watching Insider Trading Law Wobble: Obus, Newman, Salman, Two Martomas, And A Blaszczak, Donald C. Langevoort Nov 2019

Watching Insider Trading Law Wobble: Obus, Newman, Salman, Two Martomas, And A Blaszczak, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

“The crime of insider trading,” Judge Jed Rakoff has said, “is a straightforward concept that some courts have managed to complicate.” In the last eight years or so, insider trading law has wobbled visibly (in the Second Circuit in particular) in applying the standard for tipper-tippee liability originally set in the Supreme Court’s Dirks decision in 1983: from Obus (2012) to Newman (2014), with a detour to the Supreme Court in Salman (2016), and then two Martoma opinions (2017 and 2018). Most recently, the court of appeals offered what to many was a major surprise in its Blaszczak …


Contractual Communication, Lawrence B. Solum Nov 2019

Contractual Communication, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

In this Response, I will investigate the foundations of both shared and unshared meaning in legal communication. Part I takes a step back from contractual communication and offers a preliminary sketch of a general model of legal communication; the sketch draws on speech act theory and the work of Paul Grice, extending and modifying many of the insights developed by Kar and Radin. Part II turns to contractual communication, differentiating distinct “situations of contractual communication” and interrogating Kar and Radin’s Shared Meaning Analysis. Part III interrogates Kar and Radin’s distinction between “contract” and “pseudo-contract.” The conclusion of the Response briefly …


One-Legged Contracting, Ian Ayres, Gregory Klass Nov 2019

One-Legged Contracting, Ian Ayres, Gregory Klass

Georgetown Law Faculty Publications and Other Works

This response to Robin Bradley Kar & Margaret Jane Radin, Pseudo-Contract and Shared Meaning Analysis, 132 Harv. L. Rev. 1135 (2019), makes three broad points. It criticizes as arbitrary and essentializing Kar and Radin’s insistence of shared meaning as the core of contracting. It argues that even if shared meaning were the sine qua non of contracting, their proposal fails to achieve it because it does not assure that the terms would be cooperatively communicated. And it argues that their proposed enforcement standard would in practice severely limit freedom of contract and likely reduce consumer welfare. There is a …


Gatekeepers, Cultural Captives, Or Knaves? Corporate Lawyers Through Different Lenses, Donald C. Langevoort Oct 2019

Gatekeepers, Cultural Captives, Or Knaves? Corporate Lawyers Through Different Lenses, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

Studying the behavior of high-status corporate lawyers is challenging. Much writing (including some of my own) addresses the risk of lawyer enabling of client misconduct by drawing from work in behavioral ethics suggesting that at least some apparent complicity is without full awareness of the impropriety. Is this naïve? The first part of this essay pushes harder on consciousness by looking more closely at the lengthy continuum—not a binary yes/no—in the awareness of wrongdoing risk as heavily influenced by the “slippery slope.” Looking at corporate lawyers’ professional responsibility through this lens has some interesting, and as far as I can …


Wto’Ing A Resolution To The China Subsidy Problem, Chad P. Brown, Jennifer A. Hillman Oct 2019

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 …


Cacs And Doorknobs, Anna Gelpern, Jeromin Zettelmeyer Oct 2019

Cacs And Doorknobs, Anna Gelpern, Jeromin Zettelmeyer

Georgetown Law Faculty Publications and Other Works

In response to debt crises, policy makers often feature Collective Action Clauses (CACs) in sovereign bonds among the pillars of international financial architecture. However, the content of official pronouncements about CACs suggests that CACs are more like doorknobs: a process tool with limited impact on the incidence or ultimate outcome of a debt restructuring. We ask whether CACs are welfare improving and, if so, whether they are pillars or doorknobs. The history of CACs in corporate debt suggests that CACs can be good, bad or unimportant depending on their vulnerability to abuse and the available alternatives, including bankruptcy and debt …


Brief Of Amici Curiae 116 Law Librarians And 5 Law Library Organizations In Support Of Respondent, Georgia V. Public.Resource.Org, Inc., No. 18-1150 (U.S. Oct. 16, 2019), Michelle M. Wu Oct 2019

Brief Of Amici Curiae 116 Law Librarians And 5 Law Library Organizations In Support Of Respondent, Georgia V. Public.Resource.Org, Inc., No. 18-1150 (U.S. Oct. 16, 2019), Michelle M. Wu

U.S. Supreme Court Briefs

Due process and the rule of law require that the public has meaningful access to “the law.” Every major modern society since the Greeks has recognized the importance of this principle. Roscoe Pound, Theories of the Law, 22 Yale L.J. 114, 117 (1912).

In the United States, “the law” largely comes from appellate courts, legislatures, and administrative agencies who have been granted rule-making authority. As every first year law student learns, those law-making bodies have developed highly specific methods for communicating their pronouncements of law through official publications, such as the Official Code of Georgia Annotated (“OCGA”).

Those specific methods …


Is Affording Undocumented Immigrants Health Coverage A Radical Proposal?, Lawrence O. Gostin Oct 2019

Is Affording Undocumented Immigrants Health Coverage A Radical Proposal?, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

During the Democratic presidential debate on July 31, all 10 candidates raised their hands when asked if they would provide health insurance to undocumented immigrants. Among all Democratic ideas for health reform, this is least popular. A recent poll found that only 38% of respondents approve. The idea drew extensive criticism, which is understandable: Why should the United States provide health coverage for people who don’t have a legal right to be here? Extending coverage could be seen as rewarding individuals who have violated the law.

There are, however, strong reasons to afford health coverage for this population: modest economic …


Ending Pandemics: Us Foreign Policy To Mitigate Today’S Major Killers, Tomorrow’S Outbreaks, And The Health Impacts Of Climate Change, Matthew M. Kavanagh, Harsha Thirumurthy, Rebecca Katz, Kristie L. Ebi, Chris Beyrer, Jamila Headley, Charles B. Holmes, Chris Collins, Lawrence O. Gostin Oct 2019

Ending Pandemics: Us Foreign Policy To Mitigate Today’S Major Killers, Tomorrow’S Outbreaks, And The Health Impacts Of Climate Change, Matthew M. Kavanagh, Harsha Thirumurthy, Rebecca Katz, Kristie L. Ebi, Chris Beyrer, Jamila Headley, Charles B. Holmes, Chris Collins, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Every U.S. President in recent decades has had to respond to at least one pandemic disease. Political leadership has proven decisive. In the coming years, U.S. foreign policy will face at least three inter-related issues: today’s major pandemics of AIDS, TB, and Malaria; future outbreaks with the potential to become pandemics; and rising risk from infectious diseases associated with climate change. A review of epidemiologic data shows global progress on each issue is threatened. A coordinated U.S. effort, across agencies and engaged with national and multilateral partners, could save lives and address significant foreign policy interests. Such an effort could …


Gender Inequity Throughout The Legal Academy: A Quick Look At The (Surprisingly Limited) Data, Kristen K. Tiscione Oct 2019

Gender Inequity Throughout The Legal Academy: A Quick Look At The (Surprisingly Limited) Data, Kristen K. Tiscione

Georgetown Law Faculty Publications and Other Works

The long-standing overrepresentation of female law faculty in skills teaching and service-oriented positions is well documented. In contrast, the historical underrepresentation of female law faculty in top dean and tenured or tenure-track teaching positions has been widely recognized but difficult to quantify. The American Bar Association has a link in the statistics archives of its website to a chart from Fall 2013 on the gender, ethnicity, and status of law faculty. The Association of American Law Schools (AALS) links to the same chart on its website. This chart replaced a similar chart covering 2008 to 2009 that the ABA has …


Supreme Silence And Precedential Pragmatism: King V. Burwell And Statutory Interpretation In The Federal Courts Of Appeals, Michael J. Cedrone Oct 2019

Supreme Silence And Precedential Pragmatism: King V. Burwell And Statutory Interpretation In The Federal Courts Of Appeals, Michael J. Cedrone

Georgetown Law Faculty Publications and Other Works

This Article studies statutory interpretation as it is practiced in the federal courts of appeal. Much of the academic commentary in this field focuses on the Supreme Court, which skews the debate and unduly polarizes the field. This Article investigates more broadly by looking at the seventy-two federal appellate cases that cite King v. Burwell in the two years after the Court issued its decision. In deciding that the words “established by the State” encompass a federal program, the Court in King reached a pragmatic and practical result based on statutory scheme and purpose at a fairly high level of …


The Promise And Challenge Of Humanitarian Protection In The United States: Making Temporary Protected Status Work As A Safe Haven, Andrew I. Schoenholtz Oct 2019

The Promise And Challenge Of Humanitarian Protection In The United States: Making Temporary Protected Status Work As A Safe Haven, Andrew I. Schoenholtz

Georgetown Law Faculty Publications and Other Works

The humanitarian program Congress created in 1990 to allow war refugees and those affected by significant natural disasters to live and work legally in the United States has only partially achieved its goals. More than 400,000 individuals have received temporary protected status (TPS). In many cases, the crisis ended, along with temporary protection. However, in about half of the designated nationalities—including the largest groups—conflict and instability continued, making this humanitarian protection program anything but temporary. Unfortunately, Congress did not provide the Department of Homeland Security (DHS) with the tools it needed to address such long-term crises. That was purposeful—Congress worried …


Building Bridges Across Curricular And Status Lines: Gender Inequity Throughout The Legal Academy, Kristen K. Tiscione, Melissa H. Weresh Oct 2019

Building Bridges Across Curricular And Status Lines: Gender Inequity Throughout The Legal Academy, Kristen K. Tiscione, Melissa H. Weresh

Georgetown Law Faculty Publications and Other Works

No abstract provided.


Functional Secrecy, Laura K. Donohue Aug 2019

Functional Secrecy, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

Many theorists consider secrecy inimical to liberal democracy. Precise examination of the role that it plays in contemporary government, however, including its strengths and weaknesses, has been limited. This chapter, accordingly, lays out a functional theory of secrecy, considering its role in the three branches of government in four contexts: deliberation, information security, law, and adjudicatory processes. Whether and to what extent cloaking information advances the interests of the state and society varies according to how it operates in each category. First, deliberative secrecy carries significant advantages: it can facilitate informed debate and honest exchange, allowing individuals to alter their …


The Effects Of Shareholder Primacy, Publicness, And “Privateness” On Corporate Cultures, Donald C. Langevoort Aug 2019

The Effects Of Shareholder Primacy, Publicness, And “Privateness” On Corporate Cultures, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

There is widespread belief in both scholarship and business practice that internal corporate cultures materially affect economic outcomes for firms. In turn, there is also a growing belief that corporate governance arrangements materially affect corporate cultures. If this is true, it suggests an intriguing three-link causal chain: governance choices influence corporate performance, at least in part via their effects on internal culture. This essay, written for the “Berle XI” symposium, explores that possibility. This subject is important to lawyers and legal scholars because of the symbiotic nature of law and governance, with an increasing risk of enhanced corporate criminal and …


Capitalizing On Healthy Lawyers: The Business Case For Law Firms To Promote And Prioritize Lawyer Well-Being, Jarrod F. Reich Aug 2019

Capitalizing On Healthy Lawyers: The Business Case For Law Firms To Promote And Prioritize Lawyer Well-Being, Jarrod F. Reich

Georgetown Law Faculty Publications and Other Works

This Article is the first to make the business case for firms to promote and prioritize lawyer well-being. For more than three decades, quantitative research has demonstrated that lawyers suffer from depression, anxiety, and addiction far in excess of the general population. Since that time, there have been many calls within and outside the profession for changes to be made to promote, prioritize, and improve lawyer well-being, particularly as many aspects of the current law school and law firm models exacerbate mental health and addiction issues, as well as overall law student and lawyer distress. These calls for change, made …


Catalyzing Privacy Law, Anupam Chander, Margot E. Kaminski, William Mcgeveran Aug 2019

Catalyzing Privacy Law, Anupam Chander, Margot E. Kaminski, William Mcgeveran

Georgetown Law Faculty Publications and Other Works

The United States famously lacks a comprehensive federal data privacy law. In the past year, however, over half the states have proposed broad privacy bills or have established task forces to propose possible privacy legislation. Meanwhile, congressional committees are holding hearings on multiple privacy bills. What is catalyzing this legislative momentum? Some believe that Europe’s General Data Protection Regulation (GDPR), which came into force in 2018, is the driving factor. But with the California Consumer Privacy Act (CCPA) which took effect in January 2020, California has emerged as an alternate contender in the race to set the new standard for …


Dancing On The Grave Of Copyright?, Anupam Chander, Madhavi Sunder Aug 2019

Dancing On The Grave Of Copyright?, Anupam Chander, Madhavi Sunder

Georgetown Law Faculty Publications and Other Works

The quarter century since Barlow’s writing allows us to assess his prophecy. The economy moved in the very direction that Barlow anticipated—from an economy focused on the ownership of things to an economy based on services and experiences. In high-income countries, services now account for three-quarters of the gross domestic product.

But intellectual property proved more resilient and adaptable than Barlow predicted. Intellectual property law both offered exceptions where necessary, while simultaneously expanding to cover new forms of creativity and activities. In this short essay, we argue that, for good or ill, intellectual property has reconfigured itself for an economy …


Diversity As A Trade Secret, Jamillah Bowman Williams Aug 2019

Diversity As A Trade Secret, Jamillah Bowman Williams

Georgetown Law Faculty Publications and Other Works

When we think of trade secrets, we often think of famous examples such as the Coca-Cola formula, Google’s algorithm, or McDonald’s special sauce used on the Big Mac. However, companies have increasingly made the novel argument that diversity data and strategies are protected trade secrets. This may sound like an unusual, even suspicious, legal argument. Many of the industries that dominate the economy in wealth, status, and power continue to struggle with a lack of diversity. Various stakeholders have mobilized to improve access and equity, but there is an information asymmetry that makes this pursuit daunting. When potential plaintiffs and …


Stabilizing “Pillar One”: Corporate Profit Reallocation In An Uncertain Environment, Itai Grinberg Jul 2019

Stabilizing “Pillar One”: Corporate Profit Reallocation In An Uncertain Environment, Itai Grinberg

Georgetown Law Faculty Publications and Other Works

This paper is about how the world reestablishes international tax order.

The paper focuses on the OECD’s work on profit reallocation and asks whether this multilateral effort can be successful in stabilizing the international tax system. The analysis centers on the current leading concepts for reallocating profit among jurisdictions under what is known as “Pillar One” of the OECD work programme. To analyze whether any Pillar One concept can be turned into a stable multilateral regime, it is necessary to specify certain elements of what a proposal to reallocate profits might entail. Accordingly, this paper sets out two strawman proposals. …


The Kids Are Not Alright: Leveraging Existing Health Law To Attack The Opioid Crisis Upstream, Yael Cannon Jul 2019

The Kids Are Not Alright: Leveraging Existing Health Law To Attack The Opioid Crisis Upstream, Yael Cannon

Georgetown Law Faculty Publications and Other Works

The opioid crisis is now a nationwide epidemic, ravaging both rural and urban communities. The public health and economic consequences are staggering; recent estimates suggest the epidemic has contracted the U.S. labor market by over one million jobs and cost the nation billions of dollars. To tackle the crisis, scholars and health policy initiatives have focused primarily on downstream solutions designed to help those who are already in the throes of addiction. For example, the major initiative announced by the U.S. Surgeon General promotes the dissemination of naloxone, which helps save lives during opioid overdoses.

This Article argues that the …


Investing In America's Surface Transportation Infrastructure: The Need For A Multi-Year Reauthorization Bill: Hearing Before The S. Comm. On Env't & Pub. Works, 116th Cong., July 10, 2019, Vicki Arroyo Jul 2019

Investing In America's Surface Transportation Infrastructure: The Need For A Multi-Year Reauthorization Bill: Hearing Before The S. Comm. On Env't & Pub. Works, 116th Cong., July 10, 2019, Vicki Arroyo

Testimony Before Congress

The Fourth National Climate Assessment, released in November 2018, described the serious impacts of climate change already being felt throughout the U.S., and made clear that the risks to communities all across the country are growing rapidly.

These findings, along with those in the 2018 Intergovernmental Panel on Climate Change (IPCC) report should serve as an immediate call to action. Even if we manage to limit planetary warming to just 2 degrees Celsius, the world will still face increased chances of economic and social upheaval from more severe flooding, droughts, heatwaves, and other climate impacts as well as devastating environmental …


The Two Most Important Questions For Ethical Public Health, John Coggon, Lawrence O. Gostin Jul 2019

The Two Most Important Questions For Ethical Public Health, John Coggon, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Public health ethics is a distinct and established field, and it is important that its approaches and rationales are understood widely in the public health community. Such understanding includes the capacity to identify and combine principled and practical concerns in public health. In this paper, we present a background to the ideas that motivate public health ethics as a field of research and practice, and rationalize these through a critical ethico-legal approach to analysis. Two essential points of inquiry are identified and formulated to allow philosophical and practical agendas regarding public health to be combined. These come through asking the …


Five Principles For Vertical Merger Enforcement Policy, Jonathan B. Baker, Nancy L. Rose, Steven C. Salop, Fiona Scott Morton Jul 2019

Five Principles For Vertical Merger Enforcement Policy, Jonathan B. Baker, Nancy L. Rose, Steven C. Salop, Fiona Scott Morton

Georgetown Law Faculty Publications and Other Works

There seems to be consensus that the Department of Justice’s 1984 Vertical Merger Guidelines do not reflect either modern theoretical and empirical economic analysis or current agency enforcement policy. Yet widely divergent views of preferred enforcement policies have been expressed among agency enforcers and commentators. Based on our review of the relevant economic literature and our experience analyzing vertical mergers, we recommend that the enforcement agencies adopt five principles: (i) The agencies should consider and investigate the full range of potential anticompetitive harms when evaluating vertical mergers; (ii) The agencies should decline to presume that vertical mergers benefit competition on …


Lessons From The Mueller Report, Part Ii: Bipartisan Perspectives: Hearing Before The H. Comm. On The Judiciary, 116th Cong., June 20, 2019 (Statement Of Carrie Cordero), Carrie F. Cordero Jun 2019

Lessons From The Mueller Report, Part Ii: Bipartisan Perspectives: Hearing Before The H. Comm. On The Judiciary, 116th Cong., June 20, 2019 (Statement Of Carrie Cordero), Carrie F. Cordero

Testimony Before Congress

No abstract provided.