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.

Bird Flu, the OIE, and National Regulation: The WTO's India – Agricultural Products Dispute

Abstract: This paper provides a legal-economic assessment of issues arising in the Panel Report over the WTO’s India – Agricultural Products dispute, one of a growing list of disputes arising at the intersection of the WTO and domestic regulatory policy over human, animal or plant health. This dispute featured allegations that India’s import measures applied against avian influenza (AI) infected countries over poultry and related products were too restrictive, in light of the World Organisation for Animal Health’s (OIE’s) scientifically-motivated standards and guidelines. We rely on insights from a set of economic models of commercial poultry markets in the presence of negative externalities such as AI. We use such models to motivate critical tradeoffs arising at the intersection of government regulatory regimes designed to deal with AI, and how they fit alongside trade agreements such as the WTO and standard-setting bodies such as the OIE, which combine to impose constraints on regulatory and trade policy. While we find the institutional design of the OIE to be well-motivated and we are in broad agreement with the overall thrust of the Panel Report in the dispute, we also highlight a number of subtle issues which pose long-term challenges for the multilateral trading system’s ability to balance trade rules with public health concerns.

Mass Litigation Governance in the Post-Class Action Era: The Problems and Promise of Non-Removable State Actions in Multi-District Litigation

Abstract: Given a string of decisions restricting the use and availability of the class action device, the world of mass litigation may well be moving into a post-class action era. In this era, newer devices of aggregation — perhaps principally among them multi-district litigation (“MDL”) — increasingly will be called upon to meet the age-old mass litigation goal of achieving global peace of numerous claims arising out of a related, widespread harm. Indeed, coordination of pretrial proceedings in the MDL frequently facilitates the achievement of this peace, given the reality that cases, once consolidated in the MDL, often settle en masse. However, one clear obstacle to the achievement of aggregate peace in the MDL, one that also plagues the achievement of that peace in the class action world, is our federal system of substantive and procedural law. In the MDL context, the problem arises because litigation involving state-law claims and non-diverse parties, which are not removable from state court, cannot be transferred to the MDL court. Despite their prevalence, little scholarly attention has been devoted to non-removable state-court actions in MDL. The few responses to this issue have largely focused upon the efficiencies that could be gained through increased, and perhaps total, consolidation of all related cases or, short of consolidation, through heightened coordination of pre-trial proceedings between state and federal judges.This article questions whether these responses have led reform proposals in the wrong direction, and instead takes a different view. Rather than argue for increased consolidation, I offer for further consideration the possible ways in which the happenstantial existence of parallel tracks of related state and federal cases actually hold promise, if properly harnessed, as mechanisms for achieving the goals of aggregate litigation and for disciplining the contours of global settlements of mass disputes. In particular, I explore the possibility that the existence of parallel state and federal cases — frequently viewed as an obstacle to global resolution of claims unable to be consolidated in a single forum — may well fortuitously provide an opportunity to achieve the sorts of mass litigation resolution envisioned but unsuccessfully attempted in the class action context. In so doing, this article adds new thoughts and theories to the specific debate regarding parallel state and federal claims in MDL, as well as to the larger debate about mass litigation governance in a post-class action world.

Computational Complexity and Tort Deterrence

Abstract: Standard economic models of tort deterrence assume that a tortfeasor's precaution set is convex — usually the non-negative real numbers, interpreted as the set of feasible levels of spending on safety. In reality, however, the precaution set is often discrete. A good example is the problem of complex product design (e.g., the Boeing 737 MAX airplane), where the problem is less about how much one spends on safety and more about which combination of safety measures one selects from a large but discrete set of alternatives. I show that in cases where the precaution set is discrete, the problem faced by a tortfeasor under strict liability and negligence is computationally intractable, frustrating their static deterrence effects. I then argue that negligence has a dynamic advantage over strict liability in that negligence can move a tortfeasor's behavior in the direction of socially optimal care over time more rapidly than strict liability.

Informal, Formal and 'Semi-Formal' Justice in the United States

Abstract: This chapter-report analyzes the current state of formal and informal procedure and processes in American law, prepared for the International Association of Procedural Law (meetings held in Moscow, September, 2012). This article reviews the basic values of procedural systems in both formal contexts (trials, courts and related institutions;, contrasts these to the different values expressed in more informal processes, like mediation and negotiation (e.g. more party-tailored solutions, more party participation) and then contrasts both of these to the now common “semi-formal” (allusions to dress etiquette rules) processes which hybridize (and then sometimes contaminate) these values and processes. While “process pluralism” is a value in itself, formality and informality of process actually operate in modern American legal systems on a continuum, not as bi-furcated systems and the hybridization of processes without clear demarcations (such as evaluative mediation within court-annexed mediation programs) can actually lead to greater ambiguity of procedural rules and fairness and lack of clarity about what “justice” means in different settings. Conflation of goals, means and methods of dispute resolution can sometimes lead to party confusion, lack of information, power imbalances and lack of review. The challenge is for different sets of procedural values to be clear and chosen, rather than involuntarily assigned. Different kinds of matters and parties may require different kinds of processes – one size does not fit all, but some values (transparency, flexibility and contingency of outcomes) are sometimes inconsistent with each other – not all procedural values can be achieved similarly in all processes and the question remains, how should one “dress” (etiquette rules) for what kind of process, depending on what both parties and the larger justice system require of dispute resolution. The article closes with some suggestions for both qualitative and quantitative assessment tools for analyzing what different procedural regimes can offer parties and systems in different settings.

Finding Nemo: Rediscovering the Virtues of Negotiability in the Wake of Enron

Abstract: Creditors have long understood that any claims they submit for repayment in a bankruptcy might be valid, but subject to subordination in the order of payment of the bankruptcy estate's limited funds if the creditor behaved inequitably as the debtor failed. A groundbreaking opinion in Enron's on-going bankruptcy has expanded the practice of equitable subordination far beyond its traditional reach. According to the court, buyers of bankruptcy claims are now subject to subordination, not just for their own conduct, but also for conduct of previous owners of the claims, regardless of whether the conduct related to the claims. In a world of active bankruptcy claims trading, Enron raises powerful policy questions about the legal rules governing property transfers that affect the doctrinal development of bankruptcy law and the survival of a secondary market that provides important liquidity to other capital markets. This article shows how Enron was erroneous from both doctrinal and policy perspectives and examines the problems Enron has created for several distinct markets. Enron is a reminder of the continuing value of negotiability in commercial contexts, for if the claims involved had been negotiable, they could not have been subordinated. Thus, this article considers what factors have traditionally determined when the law adopts a negotiability regime for property transfers and whether these factors make sense in today's financial markets. The article argues that in the bankruptcy claims context, the liquidity benefits of negotiability outweigh its costs. Accordingly, the article proposes a federal law of negotiability for bankruptcy claims to protect the liquidity of this vital market.