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.

'Fine Distinctions' in the Contemporary Law of Insider Trading

Abstract: William Cary’s opinion for the SEC in In re Cady, Roberts & Co. built the foundation on which the modern law of insider trading rests. This paper — a contribution to Columbia Law School’s recent celebration of Cary’s Cady Roberts opinion, explores some of these — particularly the emergence of a doctrine of “reckless” insider trading. Historically, the crucial question is this: how or why did the insider trading prohibition survive the retrenchment that happened to so many other elements of Rule 10b-5? It argues that the Supreme Court embraced the continuing existence of the “abstain or disclose” rule, and tolerated constructive fraud notwithstanding its new-found commitment to federalism — which I call the (fictional) “Cary-Powell compromise” — because it accepted the central premise on which the expressive function of insider trading regulation is based: manifestations of greed and lack of self-restraint among the privileged, especially fiduciaries or those closely related to fiduciaries, threaten to undermine the official identity of the public markets as open and fair. But enough time may have passed that we may have lost sight of the compromise associated with this fiction and started acting as if insider trading really is the worst kind of deceit. The result is pressure on doctrine to expand, using anything plausible in the 10b-5 toolkit. The aim is to tie this concern more clearly to the uneasy deceptiveness of insider trading, first using somewhat familiar examples such as the debate over whether possession or use is required for liability and the supposed overreach of Rule 10b5-2. Each of these settings brings us back to the centrality of intent, reminding us that the Cary-Powell compromise has in mind a form of purposefulness that is closely tied to greed and opportunism, making insider trading a sui generis form of securities fraud. That takes us to the most jarring recent development in insider trading law, the emergence (particularly in SEC v. Obus) of recklessness as an alternative basis for liability.

Words, Words, Words!!! Teaching the Language of Tax

Abstract: Experienced tax lawyers deal easily with the ambiguous and imprecise terms that pervade tax law and discourse because they understand the intended meaning of a word from context. For students, however, the subtle ways in which meaning depends on context are far from obvious. A teacher of tax therefore must also be a teacher of language. The tax teacher can warn students about confusing terms and suggest alternative words that are more precise. The ultimate goal should be to impart fluency not only in these more precise words but also paradoxically in the ambiguous and imprecise terms that are the source of confusion but with which tax lawyers (for better or worse) continue to write and speak.

Health Care Reform in Transition: Incremental Insurance Reform Without an Individual Mandate

Abstract: A major access problem exists in the private insurance market for individuals with preexisting conditions, who are either denied coverage or charged exorbitant premiums. In effect, individuals are denied coverage for exactly what they need, which jeopardizes their health and the financial security of their family. Before health reform passed, discussions surrounding incremental reform took place, including perhaps the most politically compelling – prohibiting insurers from denying coverage to those with preexisting health conditions. Insurance is based upon the principles of spreading risk of individuals across a population to ensure that everyone can afford medical care when he or she needs it. However, risk pools are functional only if they include enough healthy individuals to keep overall health care expenditures lower than premium costs so that high-cost individuals will be covered. Although providing access to health care for all is vital, in practice requiring insurers to accept more high cost individuals without adding more healthy individuals to the pool could result in adverse selection, increase costs, and a potential financial death spiral. If there are no incentives or mandates for individuals who are healthy to purchase insurance, risk pools become even more expensive and result in even more adverse selection and malfunctioning markets. A mandate to purchase insurance counteracts adverse selection by bringing more healthy individuals into the risk pool, thereby decreasing premiums. Moreover, mandates decrease the number of uninsured, lessening cost-shifting due to uncompensated care. A tax penalty would be levied on individuals who do not have qualifying insurance. Of course, adequate subsidies must also be provided for poor individuals and families to help purchase insurance. But while many support covering those with preexisting conditions, support for a mandate is still contentious, even after the health reform law, which includes a mandate. Conservatives frame the mandate in terms of personal freedom, compulsory contracts, and transfer of money to a private party. In actuality, mandates combined with prohibition of excluding those with preexisting conditions would prevent insurers from engaging in opportunistic marketing practices. The goals of health reform are to increase access to quality affordable care, while reining in costs. But preexisting condition coverage without an individual mandate may ultimately lead to insurance that is less affordable for everyone and make access problems even worse.

A Multilateral Agreement on Investment: Would It Undermine Subnational Environmental Protection?

Abstract: Investors in the United States and other countries have a significant and growing stake in overseas business operations. The U.S. government is a leading proponent of a proposed OECD agreement to protect foreign investors from “discriminatory and distorting” government practices and to assure the free flow of capital across international borders. This agreement, a proposed Multilateral Agreement on Investment (MAI), would give cross-border investors greater protections than currently provided by NAFTA and the Uruguay Round agreements. OECD negotiators have stated that one of their goals is to curtail the powers of subnational governments in ways that go beyond NAFTA and the World Trade Organization. This article's purpose is to examine the potential impact of a proposed MAI on state and local environmental policies and practices and identify actions state policy makers can take to preserve their authority to accommodate local preferences in protecting natural resources and the environment.

Can Law Improve Prevention and Treatment of Cancer

Abstract: The December 2011 issue of Public Health (the Journal of the Royal Society for Public Health) contains a symposium entitled: Legislate, Regulate, Litigate? Legal approaches to the prevention and treatment of cancer. This symposium explores the possibilities for using law and regulation – both internationally and at the national level – as the policy instrument for preventing and improving the treatment of cancer and other leading non-communicable diseases (NCDs). In this editorial, we argue that there is an urgent need for more legal scholarship on cancer and other leading NCDs, as well as greater dialogue between lawyers, public health practitioners and policy-makers about priorities for law reform, and feasible legal strategies for reducing the prevalence of leading risk factors. The editorial discusses two important challenges that frequently stand in the way of a more effective use of law in this area. The first is the tendency to dismiss risk factors for NCDs as purely a matter of individual 'personal responsibility'; the second is the fact that effective regulatory responses to risks for cancer and NCDs will in many cases provoke conflict with the tobacco, alcohol and food industries. After briefly identifying some of the strategies that law can deploy in the prevention of NCDs, we briefly introduce each of the ten papers that make up the symposium.