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.

Redressing the Unconscionable Health Gap: A Global Plan for Justice

Abstract: Consider two children - one born in sub-Saharan Africa and the other in the United States. The African child is twenty-five times more likely to die in the first five years of life; if she lives to child-bearing age, she is a two hundred times more likely to die in labor; and overall, she will die thirty years earlier than the American child. The international community is deeply resistant to taking bold remedial action - more concerned with their geostrategic interests than the health of the poor. The scale of foreign aid is both insufficient and unsustainable and fails to address the key determinants of health. As a result, the world’s distribution of the “good” of human health remains fundamentally unfair, causing enormous physical and mental suffering by those who experience the compounding disadvantages of poverty and ill health.If the health gap is unfair and unacceptable, then how can the international community be galvanized to make a genuine difference? In this article, I propose an international call to action through the adoption of a Global Plan for Justice (GPJ) - a voluntary compact among states and their partners in business, philanthropy, and civil society to redress health inequalities. The GPJ would be a form of “soft” norm setting, rather than a legally binding treaty, achieved with the passage of a World Health Assembly resolution.Under the GPJ, states would devote resources to a Global Health Fund based on their ability to pay - for example, 0.25% of Gross National Income (GNI) per annum - in addition to maintaining current development assistance devoted to programs and activities of their choice. Global Health Fund resources would be allocated based on the health needs of developing countries measured by poverty, morbidity, and premature mortality.The core missions of the Global Plan for Justice would be to (1) ensure the fair allocation of essential vaccines and medicines, with particular attention to low- and middle-income countries in a public health emergency; (2) meet basic survival needs, creating the conditions in which people can be healthy; and (3) help countries that will suffer most to adapt to the health impacts of climate change. For an explanation of how the GPJ fits into other innovative Global Health Governance strategies, see Lawrence O. Gostin, Meeting Basic Survival Needs of the World’s Least Healthy People: Toward a Framework Convention on Global Health, 96 GEO. L.J. 331 (2008), http://ssrn.com/abstract=1014082.For an examination of essential services to be provided by the Global Plan for Justice, see Lawrence O. Gostin, The Unconscionable Health Gap: A Global Plan For Justice, 375 THE LANCET 1504 (May 1, 2010).

Equal Opportunity, Affirmative Action, and the Anti-Discrimination Principle: The Philosophical Basis for the Legal Prohibition of Discrimination

Abstract: This article provides a comprehensive examination of the philosophical history and the moral foundations of American anti-discrimination law. Both the Equal Protection Clause and the Civil Rights Act are designed to embody a fundamental moral principle, the anti-discrimination principle. The article begins by identifying three different interpretations of this principle: the anti-differentiation interpretation that prohibits unequal treatment on the basis of irrelevant characteristics, the anti-oppression interpretation that prohibits the oppressive unequal treatment of minorities, and the anti-subordination interpretation that prohibits conduct that has the effect of subordinating or continuing the subordination of minorities. It then traces the history of the Equal Protection Clause and the Civil Rights Act, demonstrating 1) that the Equal Protection Clause was originally understood as an anti-oppression principle, that over the course of the twentieth century it evolved into an anti-differentiation principle, and that over the last three decades it was again transformed into a fluctuating mix of these two interpretations, and 2) that the Civil Rights Act was originally understood as an anti-differentiation principle but quickly shattered in a confused amalgam of anti-oppression, anti-differentiation, and anti-subordination principles. The article proceeds by performing a normative analysis of both provisions to demonstrate that the Equal Protection Clause is properly interpreted as an anti-differentiation principle and the Civil Rights Act is properly interpreted as an anti-oppression principle. Finally, it provides an explanation for the ideological strife over the issue of discrimination for the past three decades and draws some implications about how both the Equal Protection Clause and the Civil Rights Act should be interpreted in the future.

Skin-in-the-Game: Risk Retention Lessons from Credit Card Securitization

Abstract: The Dodd-Frank Act’s “skin-in-the-game” credit risk retention require- ment is the major reform of the securitization market following the housing bubble. Skin-in-the-game mandates that securitizers retain a 5% interest in their securitizations. The premise behind skin-in-the-game is that it will lessen the moral hazard problem endemic to securitization, in which loan originators and securitizers do not bear the risk on the ultimate performance of the loans. Contractual skin-in-the-game requirements have long existed in credit card securitizations. Their impact, however, has not been previously examined.This Article argues that credit card securitization solves the moral hazard problem not through the limited risk retention of formal skin-in-the-game re- quirements, but through implicit recourse to the issuer’s balance sheet. Absent this implicit recourse, skin-in-the-game actually creates an incentive misalign- ment between card issuers and investors because card issuers have lopsided upside and downside exposure on their securitized card receivables. For- mally, the card issuers bear a small fraction of the downside exposure, but retain 100% of the upside, should the card balance generate more income than is necessary to pay the investors. The risk/reward imbalance should create a distinct problem because the card issuer retains control over the terms of the credit card accounts. Prior to the Credit CARD Act of 2009, the issuer could increase a portfolio’s volatility through rate-jacking: when interest rates and fees are increased, some accounts will pay more and some will default. Per the Black-Scholes option-pricing model, the increased volatility benefits the issuer because of the risk-reward imbalance.Despite the problems posed by the formal risk/reward imbalance, credit card securitization avoided the excesses of mortgage securitization. The ex- planation for this is that credit card securitization features complete implicit recourse. Implicit recourse exists because credit card securitization is not about risk transfer, but instead is about regulatory capital arbitrage and creat- ing a funding and liquidity source for the issuer. The implication is that for- mal skin-in-the-game requirements alone may be insufficient to ensure against moral hazard problems in securitization. Skin-in-the-game’s effectiveness will instead depend on its interaction with other deal features.

Climate Change, Human Health, and the Post-Cautionary Principle

Abstract: In this Article, I suggest two different but related ways of reframing the public discourse on climate change. First, I propose that we move further in the direction of characterizing climate change as a public health threat and not only as an environmental threat. Second, I argue that we should stop thinking of responses to climate change in terms of the precautionary principle, which counsels action even in the absence of scientific consensus about a threat. We should speak instead in terms of a "post-cautionary" principle for a post-cautionary world, in which some very bad effects of climate change are unavoidable and others are avoidable only if we take dramatic steps, and soon. These points are related insofar as they together create a moral imperative both to adapt to the changes we cannot prevent and to mitigate those we can. Without these efforts, people will fall ill and many will die, and we know now that this will occur. No fancy moral theory is required to condemn, and to make every attempt to avert, this large-scale knowing killing.

Paved with good intentions: the dynamic effects of WTO review of anti-dumping action

Abstract: Virtually every national trade remedy measure challenged in WTO dispute settlement has resulted in at least partial victory for the exporting country In the anti-dumping area, the special standard of review for national interpretations of Anti-Dumping agreement obligations has had little discernible effect on dispute settlement outcomes This pattern, while applauded by some as promoting liberal trade values, may actually result in less trade liberalization If important trading countries like the United States believe that the Appellate Body will undermine provisions intended to preserve their ability to use trade remedies, they may decline to negotiate further disciplines on the use of these remedies or, possibly, to enter multilateral negotiations entirely Although insufficient information exists to reach definitive conclusions, recent developments suggest that such negative effects are occurring in the Doha Round