Law Commons^™

Symposium: The Puzzling And Troubling Grant In Kisor, Gillian E. Metzger

Faculty Scholarship

From one perspective, the Supreme Court’s decision to grant review in Kisor v. Wilkie is not surprising. Dating back at least to Justice Antonin Scalia’s 2011 concurrence in Talk America v. Michigan Bell Telephone Co., through Decker v. Northwest Environmental Defense Center in 2013 and Perez v. Mortgage Bankers Association in 2015, there’s been growing interest on the Supreme Court’s conservative wing in overturning Auer deference, or the doctrine that an agency’s interpretation of its own regulation is “controlling unless plainly erroneous or inconsistent with the regulation.” The campaign to overturn Auer v. Robbins then stalled, with the court denying …

Covid-19 And Lgbt Rights, Suzanne B. Goldberg

Faculty Scholarship

Even in the best of times, LGBT individuals have legal vulnerabilities in employment, housing, healthcare and other domains resulting from a combination of persistent bias and uneven protection against discrimination. In this time of COVID-19, these vulnerabilities combine to amplify both the legal and health risks that LGBT people face.

This essay focuses on several risks that are particularly linked to being lesbian, gay, bisexual, or transgender, with the recognition that these vulnerabilities are often intensified by discrimination based on race, ethnicity, age, disability, immigration status and other aspects of identity. Topics include: 1) federal withdrawal of antidiscrimination protections; 2) …

Making Sense Of The Arbitrator’S Ruling In Ds 316 Ec And Certain Member States – Measures Affecting Trade In Large Civil Aircraft (Article 22.6-Ec): A Jigsaw Puzzle With (At Least) A Couple Missing Pieces, Petros C. Mavroidis, Kamal Saggi

Faculty Scholarship

“The U.S. won a $7.5 Billion award from the World Trade Organization against the European Union, who has for many years treated the USA very badly on Trade due to Tariffs, Trade Barriers, and more. This case going on for years, a nice victory”, tweeted President Trump’s on October 3, 2019. The United States (US) won not only the highest amount of retaliation ever adjudicated in the history of the WTO but also an ongoing right to retaliate on an annual basis until such time as the EU had complied by either removing the subsidies it granted Airbus or somehow …

The Chicago School’S Limited Influence On International Antitrust, Anu Bradford, Adam S. Chilton, Filippo Maria Lancieri

Faculty Scholarship

Beginning in the 1950s, a group of scholars primarily associated with the University of Chicago began to challenge many of the fundamental tenants of antitrust law. This movement, which became known as the Chicago School of Antitrust Analysis, profoundly altered the course of American antitrust scholarship, regulation, and enforcement. What is not known, however, is the degree to which Chicago School ideas influenced the antitrust regimes of other countries. By leveraging new datasets on antitrust laws and enforcement around the world, we empirically explore whether ideas embraced by the Chicago School diffused internationally. Our analysis illustrates that many ideas explicitly …

The New Mechanisms Of Market Inefficiency, Kathryn Judge

Faculty Scholarship

Mechanisms of market inefficiency are some of the most important and least understood institutions in financial markets today. A growing body of empirical work reveals a strong and persistent demand for “safe assets,” financial instruments that are sufficiently low risk and opaque that holders readily accept them at face value. The production of such assets, and the willingness of holders to treat them as information insensitive, depends on the existence of mechanisms that promote faith in the value of the underlying assets while simultaneously discouraging information production specific to the value of those assets. Such mechanisms include private arrangements, like …

How To Help Small Businesses Survive Covid-19, Todd Baker, Kathryn Judge

Faculty Scholarship

Small businesses are among the hardest hit by the COVID-19 crisis. Many are shuttered, and far more face cash flow constraints, raising questions about just how many will survive this recession. The government has responded with a critical forgivable loan program, but for many of these businesses, this program alone will not provide the cash they need to retain workers, pay rent, and help their business come back to life when Americans are no longer sheltering in place. This essay calls on regulators to find new and creative ways to work with existing intermediaries, including banks and online lenders, who …

Bankruptcy’S Role In The Covid-19 Crisis, Edward R. Morrison, Andrea C. Saavedra

Faculty Scholarship

Policymakers have minimized the role of bankruptcy law in mitigating the financial fallout from COVID-19. Scholars too are unsure about the merits of bankruptcy, especially Chapter 11, in resolving business distress. We argue that Chapter 11 complements current stimulus policies for large corporations, such as the airlines, and that Treasury should consider making it a precondition for receiving government-backed financing. Chapter 11 offers a flexible, speedy, and crisis-tested tool for preserving businesses, financing them with government funds (if necessary), and ensuring that the costs of distress are borne primarily by investors, not taxpayers. Chapter 11 saves businesses and employment, not …

The Covid-19 Pandemic And Business Law: A Series Of Posts From The Oxford Business Law Blog, Gert-Jan Boon, Markus K. Brunnermeier, Horst Eidenmueller, Luca Enriques, Aurelio Gurrea-Martínez, Kathryn Judge, Jean-Pierre Landau, Marco Pagano, Ricardo Reis, Kristin Van Zwieten

Faculty Scholarship

The COVID-19 Pandemic is the biggest challenge for the world since World War Two, warned UN Secretary General, António Guterres, on 1 April 2020. Millions of lives may be lost. The threat to our livelihoods is extreme as well. Job losses worldwide may exceed 25 million.

Legal systems are under extreme stress too. Contracts are disrupted, judicial services suspended, and insolvency procedures tested. Quarantine regulations threaten constitutional liberties. However, laws can also be a powerful tool to contain the effects of the pandemic on our lives and reduce its economic fallout. To achieve this goal, rules designed for normal times …

Covid-19 As A Force Majeure In Corporate Transactions, Matthew Jennejohn, Julian Nyarko, Eric L. Talley

Faculty Scholarship

This paper surveys the use of pandemic-related provisions in Material Adverse Effects ("MAE") provisions in a large data set of publicly disclosed M&A transactions spanning the years 2003-2020. We document a trend towards greater use of such provisions, taking off particularly after the H1N1 crisis in 2009, and spiking again in late 2019 and early 2020. These terms are invariably located in the exclusions/carve-outs to the MAE, and they are overwhelmingly accompanied by "disproportionate effects" language that tends to dampen the effect of the carve out. There is little discernible statistical relationship between the inclusion of a pandemic-related carve-out and …

A Better Financing System? The Death And Possible Rebirth Of The Presidential Nomination Public Financing Program, Richard Briffault

Faculty Scholarship

In the spring of 1974, the 31-year-old junior Senator from Delaware, Joseph R. Biden, Jr., published a law review article in which he decried the traditional system of privately financed election campaigns. Private financing, Senator Biden contended, “affords certain wealthy individuals or special interest groups the potential for exerting a disproportionate influence over both the electoral mechanism and the policy-making processes of the government.” Moreover, Biden urged, private funding poses an obstacle to the candidacies of “individuals of moderate means” and so was at odds with the “concept of American democracy [that] presumes that all citizens, regardless of access to …

Constitutional Law And The Presidential Nomination Process, Richard Briffault

Faculty Scholarship

The Constitution says nothing about the presidential nominating process and has had little direct role in the evolution of that process from congressional caucuses to party national conventions to our current primary-dominated system of selecting convention delegates. Yet, constitutional law is a factor in empowering and constraining the principal actors in the nomination process and in shaping the framework for potential future changes.

The constitutional law of the presidential nomination process operates along two axes: government-party, and state-national. The government-party dimension focuses on the tension between the states and the federal government in writing the rules for and administering the …

The Integrative Effects Of Global Legal Pluralism, Monica Hakimi

Faculty Scholarship

International lawyers widely understand that legal pluralism is a fact of global life and that it can, in certain settings, be desirable. But many still approach it with some trepidation. A prominent skeptical claim is that pluralist structures lack the integrative resources that unify people around a shared governance project. This claim has been prominent with respect to two kinds of conflicts that are routine in international law: (1) conflicts that play out within a single international legal arrangement, and (2) conflicts that cut across multiple legal arrangements. For both, the skeptical claim is directed at the pluralist structure itself. …

Election 2020 Sees Record $11 Billion In Campaign Spending, Mostly From A Handful Of Super-Rich Donors, Richard Briffault

Faculty Scholarship

Total spending in the 2020 federal elections is projected to set a new record of almost US$11 billion by November.

When adjusted for inflation, that’s over 50% higher than 2016 election spending. This year’s federal election spending – for the presidency, the Senate and the House of Representatives – is on track to be double what it was in 2008.

The surge in campaign spending is striking. But my research on campaign finance regulation suggests the volume of election spending is not the main problem with the U.S. campaign finance system.

The real challenge for American democracy is where this …

Retrieving Forensic Information About The Donor Through Bacterial Profiling, Mark Barash

Faculty Research, Scholarly, and Creative Activity

No abstract provided.

Discounting Credibility: Doubting The Stories Of Women Survivors Of Sexual Harassment, Deborah Epstein

Georgetown Law Faculty Publications and Other Works

For decades, federal and state laws have prohibited sexual harassment on the job; despite this fact, extraordinarily high rates of gender-based workplace harassment still permeate virtually every sector of the American workforce. Public awareness of the seriousness and scope of the problem increased astronomically in the wake of the #MeToo movement, as women began to publicly share countless stories of harassment and abuse. In 2015, the Equal Employment Opportunity Commission’s Task Force on the Study of Harassment in the Workplace published an important study analyzing a wide range of factors contributing to this phenomenon. But the study devotes only limited …

Fiduciary Legal Ethics, Zeal, And Moral Activism, David Luban

Georgetown Law Faculty Publications and Other Works

The recent turn to fiduciary theory among private lawyer scholars suggests that "lawyer as fiduciary" may provide a fresh justification for legal ethics distinct from moral and political accounts propounded by theorists in recent decades. This Article examines the justification and limits of fiduciary legal ethics. In the course of the investigation, it argues that the fiduciary relation of lawyer to client as defined in the ethics codes does not align perfectly with fiduciary principles in other legal domains, such as agency, trust, or corporate law. Lawyers are fiduciaries of their clients. Does that mean lawyers can never throttle back …

Stone Monuments And Flexible Laws: Removing Confederate Monuments Through Historic Preservation Laws, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

This essay is a comment on an article by Jess Phelps and Jessica Owley, Etched in Stone: Historic Preservation Law and Confederate Monuments, published last year by the Florida Law Review. Contrary to their claims, historic preservation law does not seriously impede the removal or contextualization of Confederate memorials. The tangled and toxic heritage they signify does. The law rather creates the context within which parties contend about the meaning and continuing value of these monuments. Preservation law is not so much “etched in stone,” as a living requirement that we collectively, carefully address what remnants of the past …

Consent, Legitimation, And Dysphoria, Robin West

Georgetown Law Faculty Publications and Other Works

Ideals of consent and consensuality are rapidly displacing ideals of legality as the demarcation of lawful from unlawful, legitimate from illegitimate, and good from bad. This is a particularly pronounced trend in the areas of sexual and reproductive rights and ethics. Consensual sex has almost completely displaced marital sex as the demarcation of not only criminal from laudatory sex but also good from bad sex. Likewise, the consensuality of a pregnancy is increasingly the demarcation of a celebrated rather than mourned pregnancy, rather than its marital province. This development is justly celebrated as a breakthrough in women's rights and equality, …

Law’S Sentiments, Robin West

Georgetown Law Faculty Publications and Other Works

The chapter argues that law and the Rule of Law do not displace moral sentiments, but rather require them, and sometimes produce them. Law gives us some sense of physical security and thereby makes possible the fellow feeling and empathy that are the root of moral action. The chapter seeks to make this claim plausible by looking at fiction that describes various dystopian lawless states, including the hierarchy of the Church, which law has been loath to enter, badly policed neighborhoods, nineteenth century American slavery, and early twentieth century patriarchal marriages. One lesson of much of this fiction is that …

The Costs And Benefits Of Affordable Housing: A Partial Solution To The Conflict Of Competing Goods, Michael R. Diamond

Georgetown Law Faculty Publications and Other Works

In this Article, I extend a prior inquiry into the costs borne by society due to the lack of enough decent, affordable housing units. I previously outlined those costs and suggested a combination of public cost savings and public and private benefits that would accrue by providing that housing. I posited that the savings and benefits, in the aggregate, could at least substantially offset the costs and might even exceed them. If that is so, I queried, why has society not produced the needed units? In answering that question, I offered several possible responses: inadequate resources, racism, and public choice …

Conquest And Slavery In The Property Law Course: Notes For Teachers, K-Sue Park

Georgetown Law Faculty Publications and Other Works

This piece contains ideas for teaching about the foundational place of the histories of conquest and slavery to American property law and the property law course. I begin by briefly reviewing how these topics have been erased and marginalized from the study of American property law, as mentioned by casebooks in the field published from the late nineteenth century to the present. I then show how the history of conquest constituted the context in which the singular American land system and traditional theories of acquisition developed, before turning to the history of the American slave trade and the long history …

The New Principle-Practice Gap: The Disconnect Between Diversity Beliefs And Actions In The Workplace, Jamillah Bowman Williams, Jonathan Cox

Georgetown Law Faculty Publications and Other Works

Following increased calls for racial justice, many organizations have pledged to play their part in dismantling systemic racism. One common step leaders take is to invest in diversity and inclusion programs. Yet, despite organizations’ bold claims to value diversity and the investment of billions of dollars on related efforts, workplace discrimination continues to be a major factor in the lives of people of color. Additionally, existing research highlights a principle-policy gap, wherein people--particularly White Americans--espouse support for the principles of diversity, yet their support wanes for policies that address inequalities. In this survey study, we explore attitudes about organizational diversity …

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 because 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 …

Rucho Is Right – But For The Wrong Reasons, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

In Rucho v. Common Cause, the Supreme Court ended its long struggle to formulate constitutional standards to regulate political gerrymandering by declaring that it was not up to the job. The Court held that it could come up with no manageable standards governing the controversy and that it therefore posed a nonjusticiable political question.

In this brief comment, I attempt defend this outcome. The task is not easy, and I hope that the reader will at least give me some points for degree of difficulty. There is no denying that partisan gerrymandering is a very serious evil and there …

Interring The Immigration Rule Of Lenity, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

The immigration rule of lenity has haunted immigration jurisprudence since its initial iteration in 1947. But as with any spectral entity, its existence is more ephemeral than real. The rule was meant to be a tie-breaker of sorts, a canon that where a provision of the immigration laws was ambiguous, the courts should impose the more lenient construction. It has never, however, been the dispositive basis for a holding of the Supreme Court. Rather, to the extent it has been referenced, it has been trotted out only as a rhetorical device to sanction a decision reached on other grounds. Even …

Accelerating Deep Decarbonization In The U.S. Transportation Sector, Daniel Sperling, Lewis Fulton, Vicki Arroyo

Georgetown Law Faculty Publications and Other Works

The transportation sector includes light-duty vehicles, heavy-duty vehicles (trucks), off-road vehicles, buses, rail, shipping, and aviation. Reducing emissions in this sector is critical in order to achieve the pathways to zero carbon. Transportation emissions accounted for 37 percent of total CO₂ emissions from energy and industry in 2019. The principal strategy for decarbonizing transportation is electrification (including battery, plug-in hybrid, and hydrogen fuel cells) of all light-duty vehicles, urban-based trucks and buses, rail, much of long-haul trucking, and some short-haul shipping and aviation. For long-haul aviation and long-haul ocean shipping, advanced low-carbon biofuels and synthetic liquids or gases produced with …

Introduction: Global Health And Human Rights, Lawrence O. Gostin, Benjamin Mason Meier

Georgetown Law Faculty Publications and Other Works

This introduction highlights the foundational importance of human rights for global health and provides an academic framework for this book by laying out the role of human rights under international law as a basis for public health. Part I seeks to define the evolving conceptualization of health, examining both the shifting focus from medicine to public health and the shifting response from international health to global health. Framing global health as a human rights imperative, Part II examines the establishment of human rights under international law, the implementation of these rights in public policy, and the development of rights for …

The Ratchet Wreck: Equality’S Leveling Down Problem, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

Constitutional equality law has a two-way ratchet problem. When someone demonstrates that a government policy treats her unequally, the injury can be remedied by improving things for the claimant, but it can also be remedied by leaving the claimant’s status unchanged while making things worse for the people advantaged by the policy. If a court chooses the latter option, it diminishes the welfare of some people while arguably not improving welfare of anyone else. Why is that a good idea?

Courts have often attempted to avoid hard questions like these by leveling up – that is by allowing advantaged persons …

Robert F. Kennedy And The Attorney General's Referral Authority: A Blueprint For The Biden Administration, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

For nearly four years, the Trump Administration’s use of the Attorney General’s referral authority has been criticized by the legal left on both substantive and procedural grounds. With the advent of the Biden Administration, however, use of the authority for liberal ends deserves serious consideration. To conclude otherwise would be throwing the baby out with the bath water. This article argues that the referral authority can be used for liberal constructions of the immigration laws, and that the perfect model for the incoming administration is former Attorney General Robert Kennedy and his use of the authority for just such ends. …

The Current Role Of The Environment In Reinforcing Acts Of Domestic Terrorism: How Fear Of A Climate Change Apocalypse May Strengthen Right-Wing Hate Groups, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Right-wing extremist organizations, like white supremacists and nativists, are using the environment as a rallying cry to gain supporters of their anti-social agendas. Apocalyptic rhetoric about climate change and the lack of action to combat it has frightened some people into accepting the simplistic, violent worldview of these groups. Although the violence is new, the coupling of racism and anti-immigration rants with environmental goals is not—it is part of our cultural history. This Article provides some background on the threats of environmental and domestic terrorism facing our nation and describes how the present-day rhetoric of fear of an environmental Armageddon …