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.

Congressional Descent: The Demise of Deliberative Democracy in Environmental Law

Abstract: In recent years, the formal environmental lawmaking dimension of Congress has become effectively moribund. Earlier Congresses were, by contrast, celebrated for enacting sweeping, demanding environmental laws and for passing significant and increasingly detailed amendments in response to subsequent developments in executive branch agencies, federal courts, and the states. Now, Congress passes almost no coherent, comprehensive environmental legislation and displays no ability to deliberate openly and systematically in response to changing circumstances and new information. Instead, when Congress does now exercise its lawmaking authorities to influence environmental protection policy, it does so primarily through the appropriations process: the sphere of its responsibility that, ironically, has proven to be the least conducive to the kind of deliberative democracy that justifies legislative supremacy in environmental lawmaking. This article describes the ascent and descent of Congress in environmental law, discusses the troublesome implications for environmental law of the increasing dominance of the appropriations process in congressional lawmaking, identifies the major causes of these developments, and concludes by offering some possibilities for congressional reform.

Toward a Science of Torture

Abstract: Does torture “work?” Proponents, including President Trump and the architects of CIA “Enhanced Interrogation” say it does, by breaking terrorists’ resistance to revealing information that saves lives Torture’s foes typically dismiss this claim as false to the point of fraud—fortuitous coincidence with torture’s unlawfulness Neither view, I argue herein, rests firmly on evidence Rival anecdotes, not data, have, so far, driven this debate And a scientific answer is beyond our reach, since: (1) rigorous comparison between interrogation methods that do and don’t involve torture isn’t possible, and (2) studies of this sort would be transparently unethical This hasn’t stopped the CIA from pursuing a research-based answer Recently released documents, reviewed here for the first time, reveal that the Agency looked to science for a resolution and raise the explosive possibility that the CIA conducted a clandestine program of human-subjects research on the risks and efficacy of torture What can be said, based on the available science, is that there’s no evidence that torture is more effective than lawful interrogation and some reason to suspect that interviewing strategies grounded in state-of-the-art understandings of persuasion and cognition work best of all What can also be said is that: (1) America’s post-9/11 torture program wrecked lives, and (2) torture has wide appeal, as symbolic riposte to the powerlessness many feel in the face of vertiginous economic and cultural change

Heightened Pleading and Discovery Stays: An Analysis of the Effect of the PSLRA's Internal-Information Standard on '33 and '34 Act Claims

Abstract: This Article presents a new model for analyzing securities-fraud claims. It then discusses the pleading and stay-of-discovery requirements enacted by Congress in the Private Securities Litigation Reform Act of 1995 (the "Reform Act"), arguing that the combined impact of these provisions is likely to be overinclusive. The Reform Act's pleading standard is best understood in light of the common law preceding it. To survive a motion to dismiss under pre-Reform Act pleading standards, plaintiffs had to plead specific types of facts derived from internal company information. Plaintiffs met this internal-information standard through the use of the Federal Rules of Civil Procedure's liberal discovery provisions. The Reform Act, aimed at abusive securities litigation, both prohibits such discovery and heightens the pleading standard necessary to survive a motion to dismiss. By combining these reforms, the Reform Act implements a standard that is outcome-determinative and, if strictly applied, virtually impossible to meet. Early decisions under the Reform Act illustrate the outcome-determinative impact of these provisions and reveal that despite Congress's stated intent to resolve the circuit split on the applicable pleading standard, the Reform Act's language and legislative history have left the courts in a quandary. As a result, the beginning of a new circuit split is already apparent. To resolve these problems, I propose that Congress repeal the stay-of-discovery requirements and, instead, adopt managerial-judge provision to process securities-fraud claims. Such a mechanism would better balance the competing goals of protecting markets and defendants and limiting so-called abusive litigation. Finally, I consider whether the Reform Act's pleading standards apply to claims pursuant to the Securities Act of 1933 ("Securities Act") and conclude that, contrary to their practice before the Reform Act, courts should not apply the new scienter-based pleading standard to the negligence and strict-liability claims of the Securities Act. I support this argument with references to both the Reform Act's plain language and legislative history, and the Securities Act's purpose. The post-Reform Act decisions considering this issue have relied on pre-Reform Act case law without considering whether the Reform Act changed that law, resulting in some incorrectly applying the pleading standards to plaintiffs' claims under the Securities Act.

The Luxembourg Effect: Patent Boxes and the Limits of International Cooperation

Abstract: This article uses patent boxes, which reduce taxes on income from patents and other IP assets, to illustrate the fact that the jurisprudence of the European Court of Justice has a longer reach than has previously been recognized. This article argues that, along with having effects within the European Union, the ECJ’s decisions can also have effects on countries outside of the EU. In the direct tax context, the ECJ’s jurisprudence has hampered the ability of both EU and non-EU countries to police international tax avoidance. In 2015, the Organisation for Economic Co-operation and Development (OECD) proposed restrictions on patent boxes that were designed to limit income-shifting opportunities. As this article points out, these restrictions are weaker than they could have been due to EU legal constraints. Although the majority of countries involved in the OECD’s work on patent boxes were not EU Member States, they were all constrained by the ECJ’s permissive definition of tax avoidance. This article argues that the tax jurisprudence of the ECJ placed downward pressure on international tax avoidance standards and that this in turn shows that countries both within and without the European Union are losing the ability to prevent international tax avoidance to the degree that would have been possible in the absence of the ECJ’s tax jurisprudence. This article refers to this downward pressure as the Luxembourg effect. This effect is even more important in the context of the United Kingdom’s “Brexit” vote to leave the European Union since it highlights that a vote to be free of EU law may not have the desired effect if even non-EU countries are subject to the consequences of the ECJ’s jurisprudence.

Rules, Discretion, and Authority in International Financial Reform

Abstract: Proposals to reform the "international financial architecture" in the wake of the global financial crisis of 1997-98 echo the traditional debate over the merits of rules versus discretion in the administration of government functions. Proposals for rules-systems to govern International Monetary Fund (IMF) assistance and for international bankruptcy regimes promise solutions to the problems of moral hazard and collective action that contribute to financial crises, but they disregard key financial market characteristics and the differences between regulating sovereigns and private market actors. The official reform agenda eschews the rigidities of rules-systems in favor of a mix of reforms initiated without basic changes in relevant international and national legal rights and obligations, in a way that parallels central bank policies in containing domestic financial crises. The differences in authority and credibility between national central banks and the IMF make this policy of discretionary eclecticism suspect in an international context, validating to some degree the concerns of the rules-proponents. While some alternative approaches try to blend elements of rules-systems and discretionary judgment, none appears likely to bridge this authority gap successfully. This circumstance reflects the problems of regulating global economic activity in a world of nation-states and suggests that the world will remain vulnerable to damaging financial crises in the future.