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.

Trade 2.0

Abstract: Where the last century saw the dismantling of barriers to trade in goods, the new century will see the dismantling of barriers to trade in services. Once theorized as nontradable, services now join goods in a global marketplace powered by advances in communications technology. Today, an engineer, accountant, or lawyer can supply her services across the globe without boarding a plane. Less well understood is that cyber-trade encompasses not just the services outsourced to Bangalore, but also the online services supplied by Silicon Valley to the world. Apple, eBay, and Yahoo too are exporters of information services, seeking to become middlemen to the world. Google now earns half of its income overseas. Almost sub rosa, the Internet has become a global trading platform rivaling any history has yet produced. But law developed over millennia for the paradigm of goods is unprepared for trade, version 2.0. The pressure on law is clear: Antigua challenges U.S. rules barring online gambling; Brazil demands that Google identify hate speakers; an Alien Torts Statute suit charges Yahoo with abetting Chinese torture; and the United States challenges Chinese media restrictions on movie, music, and financial information services. Once we recognize the connections between these disputes, we can begin to form a general theory of cyber-trade. Ricardo’s theory of comparative advantage applies to all trade, whether in goods or in information. Economic theory thus counsels, and international treaties compel, the dismantling of barriers to cyber-trade. Yet, because of its remote nature, it is easy to assert consumer protection to bar online competition. I articulate a principle of technological neutrality to smoke out barriers hiding under this veneer. To flourish, cyber-trade will also require digital analogues to the physical infrastructure for services, from handshakes to courts. The footloose nature of cyber-trade poses a more fundamental challenge - to law itself. Via the net, service providers can flout local law from afar. This race to the bottom arises from the exploitation of overly liberal regimes, lacking consumer and other protections. A second potential race to the bottom arises from overly repressive regimes, which require service providers to serve as auxiliaries of the authoritarian state. I offer principles to protect local control of global Internet trade without jeopardizing either human rights or the World-Wide nature of the Web.

The Depoliticization of Law

Abstract: Libertarian philosophers of law often write as though law is morally legitimate only if grounded in individual consent. They assume that unless law springs from some act of agreement, some hypothetical or actual social contract by which individuals consent to be bound, it is nothing more than force. On this view, law is either a legitimate mechanism of social ordering that is consistent with respect for individual autonomy or an illegitimate mechanism of coercion by which some human beings are subjected to the will of others. I believe this is a false dilemma. Law is rarely, if ever, grounded in consent. This does not imply, however, that law necessarily gives some individuals command over others. There is a third possibility. Law can arise through a process of unplanned evolution. It can be a product of human action, but not the execution of any human design. In such a case, those subject to law are indeed bound, but not by the will of any identifiable human beings. Although law is inherently coercive, it is not inherently a vehicle for domination. To the extent that the ideal of the rule of law consists in a vision of a society governed by laws but not men, this conception of law places the ideal within reach. In this article, I argue for this third possibility; for a society governed by law that evolves from human interaction without the conscious guidance of any particular human intelligence. I begin, in Part II, by clarifying the terminology I intend to employ in making my case. In Part III, I identify and distinguish four types of law: politicized law, privatized law, depoliticized law, and consent-based law. In Part IV, I argue that neither politicized law nor privatized law is consistent with a society governed by the rule of law. Finally, In Part V, I argue that depoliticized law is consistent with the rule of law and that a legal system consisting in exclusively depoliticized law can function effectively in the contemporary environment. I close without venturing an opinion on the viability or desirability of a system of exclusively consent-based law, leaving that as an open question to be explored on another day.

Securities Fraud as Corporate Governance: Reflections Upon Federalism

Abstract: Federal securities law and enforcement via securities fraud class actions today has become the most visible presence in regulating corporate governance State law, long at center stage in discussions of corporate governance, continues to provide the legal skeleton for the corporate form and state fiduciary duty litigation continues as a frequent means to monitor managers Yet, in today's world, state law does so almost entirely in the specific contexts of decisions about acquisitions or in self-dealing transactions The empirical evidence in this Article illustrates that corporate governance outside of these areas has passed to federal law and in particular to shareholder litigation under Rule 10b-5 The Sarbanes-Oxley Act of 2002, passed by Congress in the wake of the current corporate accountability scandals, provides new evidence of the expanded role of federal law But, the move to federal corporate governance is broader than that law and has a longer history than the current scandals The ascendancy of federal law in corporate governance reflects at least three factors First, disclosure has become the most important method to regulate corporate managers and disclosure has been predominantly a federal, not a state, methodology Second, state law has focused largely on the duties and liabilities of directors, and not officers, and federal law has increasingly occupied the space defining the duties and liabilities of officers Officers have become the fulcrum of governance in today's corporations Third, federal shareholder litigation based on securities fraud has several practical advantages over state shareholder litigation based on fiduciary duty that have contributed to the greater use of the federal forum As a result of these trends, federal law now occupies the largest part of the legal corporate governance infrastructure in the 21st century The outpouring of suggested reforms that have followed in the wake of Enron and WorldCom have focused on federal law and on the conduct of officers and directors, rather than state law, which in practice, focuses mainly on directors Indeed, the discussions about reforms have excluded state law almost entirely In this article, we develop the idea of federal law as corporate governance in three parts organized around history, empirical data, and analysis In Part I, we begin with the traditional legal template State corporate law is the focus and federal securities law plays a supporting role In Part II, we present empirical data on the use of both federal and state litigation to regulate corporate governance We begin with a data set we have developed of securities fraud class action complaints filed in 1999 Our analysis of those complaints shows that securities fraud class action litigation is being used mostly in areas that relate to the managers' operation of the business Not surprisingly, for example, many of the complaints raise concerns about the ways in which managers have recognized revenues or engaged in some form of accounting manipulation From that base, we expand the story using data developed by others on securities fraud class actions more generally Then, we compare transactions that give rise to securities fraud claims to another data set that covers all corporate cases filed in the Delaware Chancery Court for that same year The result is a surprisingly narrow focus for state litigation and a much broader one for federal suits, revealing a gap in the standard learning about corporate governance In Part III, we address how the federal securities fraud picture we provide might fit with state shareholder litigation in a current theory of corporate governance

Personal Privacy and Common Goods: A Framework for Balancing Under the National Health Information Privacy Rule

Abstract: The newly-introduced Standards for Privacy of Individually Identifiable Health Information represent the first systematic national privacy protections of health information. Flowing from a Congressional mandate in the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the regulations protect the privacy of individually-identifiable health records in any form (including electronic, paper and oral) through disclosure and use limitations, fair information practices, and privacy and security policies that apply to "covered entities" (health providers, health insurance plans and health care clearinghouses) and their business associates. Privacy safeguards are needed because of the personal nature of health data, the rapid shift from paper to electronic records, and actual and perceived risks of unwarranted disclosures. Existing health information privacy legal protections at the federal and state levels are fragmented, inconsistent, and variable. The new standards endeavor to protect patient privacy by limiting disclosures of individually-identifiable medical information (or "protected health information" (PHI)). Disclosure and use of PHI can only occur upon patient consent, subject to several exceptions outside the health care transaction setting. The regulations also implement fair information practices, which have long been a feature of existing federal laws. Fair information practices allow patients to (1) inspect and amend their records, (2) receive notice of covered entities' privacy practices and potential uses and disclosures of health information, and (3) request confidential communications and an accounting of actual disclosure. Through the regulations, HHS attempts to set a "floor" for protections that, it suggests, "balance[s] the needs of the individual with the needs of society." Reaching this balance, however, is precarious. The national privacy rule does not always achieve a fair and reasonable allocation of benefits and burdens for patients and the community. We suggest a framework for balancing that values privacy and common goods, without a priori favoring either. We instead seek to maximize privacy interests where they matter most to the individual and maximize communal interests where they are likely to achieve the greatest public good. Thus, where the potential for public benefit is high and the risk of harm to individuals is low, we suggest that public entities should have discretion to use data for important public purposes. Provided that the data are used only for the public good (e.g., research or public health), and the potential for harmful disclosures are negligible, there are good reasons for permitting data sharing. Conversely, if data are disclosed in ways that are unlikely to achieve a strong public benefit, and the personal risks are high, individual interests in autonomy should prevail. Consequently, for these kinds of disclosures, the law should strictly prohibit the release of information without the patient's consent. Through this framework we attempt to maximize individual and communal interests in the handling of identifiable health data.

Juridical Proof and the Best Explanation

Abstract: Analytical and empirical studies of the process of legal proof have sought to explain the process through various aspects of probability theories. These probability-based explanations have neglected the extent to which explanatory considerations themselves explain juridical proof. Similar to many scientific inferences, juridical inferences turn on how well the evidence would explain certain conclusions. This inferential process, well known in the philosophy of science, is referred to as abduction or "inference to the best explanation." In this essay, we provide a detailed account of the process in general; an explanation-based account of juridical proof in particular; a comparison with probability approaches; and the theoretical and practical consequences of the debate. We demonstrate how an explanation-based approach itself better explains juridical proof, at both the macro- and micro-levels, than the probability approaches. The macro-level issues include burdens of proof in civil and criminal cases, and related issues involving summary judgment, judgments as a matter of law, and sufficiency-of-the-evidence standards. The micro-level issues include the relevance and probative value (and thus the admissibility) of any individual item of evidence, from first-hand observations to complex scientific or statistical evidence. The explanatory considerations can provide practical guidance and constraint for decision-making on each of these issues. More generally, we demonstrate that the explanatory and probability approaches are not alternatives. The explanatory considerations are more fundamental, on which the probability accounts are parasitic. Thus to extent the probability approaches account accurately for and supplement explanatory considerations, they may improve our understanding; to the extent they do not, they risk mismodeling the process.