Georgetown University Law Center

About: Georgetown University Law Center is a based out in . It is known for research contribution in the topics: Supreme court & Public health. The organization has 585 authors who have published 2488 publications receiving 36650 citations. The organization is also known as: Georgetown Law & GULC.

Tobacco endgame strategies: challenges in ethics and law

Abstract: There are complex legal and ethical tradeoffs involved in using intensified regulation to bring smoking prevalence to near-zero levels. The authors explore these tradeoffs through a lens of health justice, paying particular attention to the potential impact on vulnerable populations. The ethical tradeoffs explored include the charge that heavy regulation is paternalistic; the potentially regressive impact of heavily taxing a product consumed disproportionately by the poor; the simple loss of enjoyment to heavily addicted smokers; the health risks posed by, for example, regulating nicotine content in cigarettes—where doing so leads to increased consumption. Turning to legalistic concerns, the authors explore whether endgame strategies constitute a form of ‘regulatory taking’; whether endgame strategies can be squared with global trade/investment laws; whether free speech rights are infringed by aggressive restrictions on the advertisement and marketing of cigarettes.

Adjudication Is Not Interpretation: Some Reservations About the Law-As-Literature Movement

Abstract: Among other achievements, the modern law-as-literature movement has prompted increasing numbers of legal scholars to embrace the claim that adjudication is interpretation, and more specifically, that constitutional adjudication is interpretation of the Constitution. That adjudication is interpretation, that an adjudicative act is an interpretive act, more than any other central commitment, unifies the otherwise diverse strands of the legal and constitutional theory of the late twentieth century. In this article, I will argue in this article against both modern forms of interpretivism. The analogue of law to literature, on which much of modern interpretivism is based, although fruitful, has carried legal theorists too far. I also will argue, the danger posed by interpretivist excesses is not simply conceptual confusion. By insisting that adjudication is interpretation, interpretivists misconceive not only the nature of adjudication, but also the nature, and even the possibility, of legal criticism. In order, partly, to demonstrate what I take to be the real value of literature to lawyers, I will argue that two works of literature themselves teach us the irresponsibility of viewing legal analysis as either an objective or subjective interpretive act. I will argue that the exploits of two fictional lawyers: Mark Twain's, "Pudd'nhead Wilson," from the novel of the same name, and John Barth's Todd Andrews from, "The Floating Opera," are illustrative of where, in my view, interpretivism has gone wrong. Thus, it is my contention that Mark Twain and John Barth have done important work for legal theorists: Twain's lawyer protagonist "Pudd'nhead Wilson" scrupulously follows the objective interpretive strategies of Ronald Dworkin's mythical and interpretive Hercules, yet he is no hero. And John Barth's lawyer protagonist Todd Andrews just as scrupulously lives out the assumptions of subjectivist interpretivism in his law practice in a small town on Maryland's Eastern Shore. Todd Andrews, similarly, is no hero; in fact, he constitutes a form of evil. These two works of fiction about lawyers and lawyering reveal important truths about interpretivism: Both stories reveal "interpretivism" to be a justificatory illusion. When we exercise power, through courts or otherwise, we must do better than Wilson and Andrews. We must do better than even the highest ideal of interpretive behavior upon which our modern interpretivists insist.In Part Two I will argue that objective interpretivism, as defined in Owen Fiss's influential article Objectivity and Interpretation, should be rejected. Part Three argues that the danger of relativism posed by objective interpretivism is thematically explored in Mark Twain's legal novel Pudd'nhead Wilson. Part Four argues that subjective interpretivism, as expressed in a recent article by Stanley Fish entitled Anti-Professionalism, should be rejected because it rests on a nihilistic morality. Part Five argues that the dangers of subjective interpretivism are dramatized by the exploits of the protagonist Todd Andrews in John Barth's legal novel The Floating Opera. In the conclusion I will argue briefly that only by first focusing on the imperative core of adjudication can we state and clearly apply the moral criteria by which law should be criticized.

Getting (Too) Comfortable: In-house Lawyers, Enterprise Risk and the Financial Crisis

Abstract: In-house lawyers are under considerable pressure to "get comfortable" with the legality and legitimacy of client goals. This paper explores the psychological forces at work when inside lawyers confront such pressure by reference to the recent financial crisis, looking at problems arising from informational ambiguity, imperceptible change, and motivated inference. It also considers the pathways to power in-house, i.e., what kinds of cognitive styles are best suited to rise in highly competitive organizations such as financial services firms. The paper concludes with a research agenda for better understanding in-house lawyers, including exploration of the extent to which the diffusion of language and norms has reversed direction in recent years: that outside lawyers are taking cognitive and behavioral cues from the insiders, rather than establishing the standards and vocabulary for in-house lawyers.

ASAT-Isfaction: Customary International Law and the Regulation of Anti-Satellite Weapons

Abstract: This article asserts the thesis that customary international law (CIL), even in the absence of any new treaty, already provides a legal regime constraining the testing and use in combat of anti-satellite (ASAT) weapons. This argument, if validated, is important for both legal and public policy considerations: the world (especially, but not only, the United States) has grown increasingly dependent upon satellites for the performance of a wide array of commercial and military functions. At the same time, because of this growing reliance (and hence vulnerability), interest has surged in developing novel systems for attacking a potential enemy's satellites - ASAT technology has been tested by the United States, Russia, and China, and other countries may soon shoot up that same dangerous trajectory. Oddly, the United States has consistently opposed international efforts to negotiate an arms control solution to this problem. Any comprehensive treaty would certainly be difficult to reach (there are numerous complicated issues of definitions, scope, and verification to surmount) but the American stance (not only during the Bush Administration) has been that we should not even try, because "there is currently no arms race occurring in outer space." This article turns that resistance on its head, by asking whether customary international law, even without any formal treaty on point, already imposes meaningful constraints upon ASAT activities. To develop the argument, it analyzes three strands of CIL: first, "general" customary international law, which has long been recognized as an authoritative, albeit complex, source of binding rules; second, the specialized legal regime incorporated into the law of armed conflict, which imposes its own strictures, fully applicable to conventional warfare, but not yet applied extra-terrestrially; and finally, another realm of specialized CIL, the emerging jurisprudence governing international environmental law. My conclusion is that there is already a meaningful ASAT-control regime, created by CIL even without codification in a new treaty. This is not, to be sure, a fully comprehensive legal web, and there would still be plenty of additional scope for a new treaty to enhance and extend the legal regime. But the conclusion is that treaty negotiators would not be drafting on a complete tabula rasa; an incipient legal order is already in place.

The Merchant-Bank Struggle for Control of Payment Systems

Abstract: Merchants and banks are currently engaged in a wide-ranging struggle for control over payment systems. The conflict is playing itself out in business practices, in banking regulation, in corporate governance, in corporate restructuring, in securities offerings, and in the biggest antitrust litigation since AT&T. Yet, it is possible that the extraordinary energy being spent in this fight is for naught, as the growth of national bank brands, technological developments, and innovative business models are likely to result in a radical reshaping of the payments world. This article reviews the factors behind the struggle between merchants and banks and the strategies adopted by each, and questions what impact changes in the payment card industry's structure and the emergence of new payments technologies and business models will have on the merchant-bank contest.