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 & Global health. The organization has 585 authors who have published 2488 publications receiving 36650 citations. The organization is also known as: Georgetown Law & GULC.

Hydraulic Regulation: Regulating Credit Markets Upstream

Abstract: Consumer protection in financial services has failed. A crisis is now playing itself out in the mortgage, credit card, auto loan, title loan, refund anticipation loan, and payday loan markets. Consumer protection was a traditional element states' regulatory power until federal preemption ousted states from almost all direct regulation of federally-chartered banks without substituting equivalent protections and enforcement. This Article argues that one avenue may remain to permit states to engage in consumer protection regulation of federally-chartered banks. Recent changes in financial markets have placed the majority of consumer debt in the hands of secondary market entities, such as securitization trusts and debt collectors, which are not protected by federal preemption. States' ability to directly regulate the secondary consumer debt market also gives them the ability to indirectly regulate the primary market, even when direct regulation would be preempted. States can impose targeted regulatory costs on the secondary market tied to the presence or absence of particular terms in consumer debts, regardless of what type of institution initiated the debt. By tying regulation to the terms of the debt, states can channel the hydraulic force of the market, which will pass these costs on to the originators of the debts - including federally-chartered banks. This would create an incentive for originating lenders to adjust the terms under which they originate consumer debts so as to avoid state regulatory costs. This Article contends that such regulation would not run afoul of preemption doctrine because it does not directly regulate federally-chartered banks; it affects them only indirectly, through the market.

Varieties of New Legal Realism: Can a New World Order Prompt a New Legal Theory? (A Synopsis)

Abstract: This synopsis is to our article Varieties of New Legal Realism: Can a New World Order Prompt a New Legal Theory? The synopsis and article map and analyze three varieties of a new legal realism. We contend that these varieties of new legal realism provide responses to a “new formalism,” that of neoclassical law and economics. We conclude by outlining a “dynamic new realism” which builds from what we consider to be the best of the new legal realism.

Equality Theory, Marital Rape, and the Promise of the Fourteenth Amendment

Abstract: During the 1980s a handful of state judges either held or opined in dicta what must be incontrovertible to the feminist community, as well as to most progressive legal advocates and academics: the so-called marital rape exemption, whether statutory or common law in origin, constitutes a denial of a married woman's constitutional right to equal protection under the law. Indeed, a more obvious denial of equal protection is difficult to imagine: the marital rape exemption denies married women protection against violent crime solely on the basis of gender and marital status. What possibly could be less rational than a statute that criminalizes sexual assault, and punishes it severely, unless the victim and assailant are married? What could be more obvious than the plain fact, repeatedly documented, that these state laws are derived from a sorry history of discriminatory, misogynist, and hateful denials of a married woman's legal right to equal dignity and respect? Where could one possibly find a sharper example of a state law that explicitly insulates and protects a separate political system of subordination and violence against a group of citizens, and thereby denies those citizens protection of the laws given others? So why has not the Supreme Court held as much?The endurance of marital rape exemptions, despite their apparent unconstitutionality, partly results from the dominant understanding of the meaning of equality and constitutionally guaranteed equal protection. This paper proposes not so much a novel approach to marital rape exemption or to the fourteenth amendment, but rather a new direction of progressive and feminist-informed constitutional arguments. I will urge that we should direct our arguments away from a hypothetical judicial audience and toward a congressional audience. If the dominant understandings of equal protection truly are inadequate, and if judicially developed law has determined the content of those inadequate understandings, then "equal protection" might take on a very different and more helpful meaning if developed in a congressional, rather than a judicial, context. That very different meaning might highlight, rather than obfuscate, the unconstitutionality of the marital rape exemptions. Congress might respond more aggressively than the Court to the unconstitutionality of marital rape exemptions, not only because of the different political compositions of the Court and Congress, but also because equal protection as a political principle guiding Congress might carry a broader meaning than does equal protection as a.legal principle binding the Court.Part II of this essay discusses three contrasting understandings of the meaning of equal protection: the Supreme Court's dominant rationality approach; Professor MacKinnon's proposed dissident "anti-subordination" approach; and what I label the '"pure protection" understanding, which may be closest to the original meaning of the clause. Part III of this essay will then re-examine the constitutionality of marital rape exemptions in light of these competing views of the meaning of equal protection. The essay will posit that even if we accept the traditional, "rationality" model of equal protection, marital rape exemptions are unconstitutional. Part IV of this essay demonstrates that the dominant but inadequate rationality view of equality is largely a product of the adjudicative context in which that theory arose. Part V of this essay urges feminists, over the next decade, not only to continue to press the Court to rule against these laws on the basis of their irrationality, but also to urge Congress to respond to the mandate of section five of the fourteenth amendment by undertaking consideration of a "Married Women's Privacy Act." The purpose of the Act would be to guarantee all women the full protection of the states' laws against criminal assault.

In the Spirit of Ubuntu: Enforcing the Rights of Orphans and Vulnerable Children Affected by HIV/AIDS in South Africa

Abstract: This Article discusses the traditional African concept of ubuntu, which is frequently cited in South African jurisprudence, and analyzes South Africa's lack of compliance with the human rights of orphans and vulnerable children whose lives have been affected by HIV/AIDS. The Constitution of the Republic of South Africa explicitly protects children's rights and various socio-economic rights of concern to children, and the Constitutional Court of South Africa has held such rights to be justiciable. The constitutional rights of South African children affected by HIV/AIDS, however, have been continually violated. This Article discusses how the existence of these constitutional rights may assist orphans and vulnerable children as well as those advocating on their behalf. It also identifies legal strategies pertaining to such rights that may be used to improve the lives of HIV/AIDS-affected children in South Africa.

A Skeptic's Case for Sovereign Bankruptcy

Abstract: This essay describes fundamental flaws in the sovereign debt restructuring regime, but questions the prevailing arguments for sovereign bankruptcy. I conclude that efficient debt outcomes may well come about without bankruptcy, but that a statutory regime is necessary to achieve sovereign autonomy and political legitimacy.