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.

Law’s culture and lived culture: a comment on Roger Cotterrell’s ‘The struggle for law: some dilemmas of cultural legality’

Abstract: I want to thank Roger Cotterrell for his stimulating lecture, and thank especially Carrie Menkel-Meadow and the International Journal of Law in Context for the opportunity to participate in this important conversation. I admire Professor Cotterrell’s choice of topic; he has taken up a really hard and pressing question for many pluralist societies right now, which is how law and legal theory might make sense of the legal demands of cultural pluralism. Kwame Anthony Appiah has nicely articulated a similar version of this problem: ‘The challenge, then, is to take minds and hearts formed over the long millennia of living in local troops and equip them with ideas and institutions that will allow us to live together as the global tribe we have become’ (Appiah, 2006, p. xiii). Even if you do not share Appiah’s exuberant cosmopolitanism, the issue remains that conflict between human groups based on small differences often unrecognisable to outsiders is probably the norm in human history, and each society (however defined) continues to negotiate that problem of boundaries, membership and codes of conduct, of who can be included and whose practices can and cannot be tolerated.

Preemption Hard Look Review, Regulatory Interaction, and the Quest for Stewardship and Intergenerational Equity

Abstract: Current debates over federalism, especially preemption, center on the merits of legal structures that rely on a sole or preemptive federal regulator versus strategies that retain roles for multiple regulatory actors, especially federal, state, and local actors sharing concurrent and interacting authority. Given that most regulatory regimes identify among their express purposes the preservation of resources, the environment, or health, which sort of regulatory regime—preemptive or concurrent and interactive—is most likely to further such stewardship, sustainability, and intergenerational equity goals? Such public-regarding goals confront political economic incentives and behavioral tendencies of political, legal, and business actors to seek immediate rewards and neglect longer-term perspectives and concerns. Preemption battles in political, regulatory, and judicial venues typically are a manifestation of this clash between longer-term protective goals and anti-regulatory preferences of industry and sometimes political and regulatory officials. In recent years, in a major change in prevailing federal governmental policy, many agencies and industries claimed that agency actions have broad preemptive impact on state and local regulatory powers and common law regimes, but these claims usually followed no advance opportunities for comment or open, reasoned agency decisionmaking. This Article focuses upon a much neglected aspect of judicial review of preemption claims: How should courts review the factual and policy underpinnings of claims that federal regulatory actions should preempt? Through analysis of federalism and preemption jurisprudence, as well as central administrative law doctrine that rewards transparency, accountability, and constrained discretion, this Article argues that courts should explicitly embrace “preemption hard look review.” Courts should subject agency claims of preemptive power and effect to close analysis to see if such an outcome is well

Preparing Financial Regulation for the Second Machine Age: The Need for Oversight of Digital Intermediaries in the Futures Markets

Abstract: Humanity is entering the Second Machine Age, in which artificially intelligent computers and software programs (artificial agents) will become involved in almost every aspect of society. Computers and software programs now drive and park cars, fly drones, compose music, sell insurance, manage investments, and even write news stories. Indeed, computers and software programs are far better –– and quicker –– than humans at jobs that involve looking at numbers and drawing conclusions from them, which would include jobs such as investment advisors and futures traders. The rise of automated trading systems (“ATSs”) that use high-frequency trading strategies in the futures markets is but one example of how technology is fundamentally changing the nature of the financial markets. As a result, humans who are operating as futures market intermediaries (such as commodity trading advisors or introducing brokers) are likely to be displaced by digital intermediaries, that is, artificial agents that perform critical roles related to enabling customers to access the futures and derivatives markets.The Commodity Exchange Act (“CEA”) governs the U.S. derivatives markets and requires specified categories of intermediaries –– such as commodity trading advisors (persons who are compensated to give advice about derivatives) –– to register with the Commodity Futures Trading Commission (“CFTC”). Compulsory registration has been called “the kingpin” of the CEA’s “statutory machinery” because it serves to identify the persons acting as market professionals, and provides a mechanism for such persons to undergo background screenings for fitness to work in the industry, as well as proficiency testing and ethics training. Because technological advances are enabling artificial agents to perform many of the intermediary roles that previously were done by humans, Congress and the CFTC should modify the CEA and CFTC Regulations (1) to expand the scope of persons who must register to include, inter alia, persons who use ATSs and who have trading privileges on, or direct electronic access to, derivatives exchanges (or trading venues), and (2) to implement an identification program for ATSs and algorithms. Lastly, Congress and the CFTC should consider proposals in research by academics in philosophy and law concerning (1) ways to ensure that digital intermediaries are built not just to be intelligent but also to be ethical, and (2) methods for allocating liability for wrongdoing by digital intermediaries.

Law as a Tool to Facilitate Healthier Lifestyles and Prevent Obesity

Abstract: Public health agencies face considerable challenges trying to prevent overweight and obesity in society, primarily because a person's own behavior is often the root cause of the disease. Individuals make personal choices about their diet, exercise, and lifestyle, so disease is often thought of as a matter of personal, not governmental, responsibility. This Commentary shows how law can be used as a tool to prevent overweight and obesity (see Table). The tools discussed in this article include: - Disclosure - e.g., labels and consumer information - Tort liability - e.g., inadequate disclosure of risks, misleading advertisements, and targeting children - Surveillance - e.g., reporting of glycosylated hemoglobin for diabetes management - Targeting children and adolescents - e.g., restricting food advertising during children's programs; counter advertising to promote good nutrition and physical activity; limiting the use of cartoon characters; and restricting web-based games and promotions - Taxation of unhealthy food - e.g., "junk food," "snack," or "Twinkie" tax provides disincentive for purchasing calorie-dense, nutrient-poor foods; tax revenue could also be used to promote healthy nutrition - School policies - e.g., require schools to adhere to dietary guidelines and portion size; increase opportunities for nutrition education and physical activities - Built Environment - e.g., limit fast food restaurants, build recreational parks and bike paths, expand mass transportation, and provide lighting and playgrounds in housing developments - Food Prohibitions - e.g., ban trans fat from restaurants Despite the undoubted political risks, should public health agencies push for strong measures to control obesity, perhaps even banning hazardous foods? The justification lies with the epidemic rates of overweight and obesity, the preventable morbidity and mortality, and the stark health disparities based on race and socioeconomic status. Although the public dislikes paternalism, it is at least worth considering whether such an approach is ever justified to regulate harms that are apparently self-imposed, but which are deeply socially embedded and pervasively harmful to the public.

The Public Interest in the Private Law of the Poor

Abstract: This Article begins to explore the uncharted connections between private law and poverty law, revealing a striking pattern that is only visible when these two bodies of law are viewed in the same frame. Many poverty law scholars have focused on the rules that regulate government assistance to the poor. They have left largely left unexamined the private law of the poor — meaning, laws that govern the private economic relationships of those living in poverty or in danger of falling into destitution. At the same time, the study of private law is flourishing among scholars who seek to understand the law’s vision of justice in relations between private individuals. But these scholars often seek that vision within the law’s doctrinal structures, which betray little overt concern with poverty. Revealing the connections between the two fields, this Article shows how concerns about public spending on poor relief have shaped debates over the private law of the poor for over a century. It traces the recurrence of one rationale for regulation, the prevention of “pauperism,” that explicitly linked private law rules with poverty alleviation. Proponents of the anti-pauperism argument claimed that private law, if properly structured, could help prevent dependence on poor relief and thereby reduce the burden on the public fist of caring for poor households. Thus, they imagined the private law of the poor as one component of a larger system of rules designed to keep families self-supporting and off the poor relief rolls. Drawing on original research across a range of source materials, this Article traces the history of the anti-pauperism argument and offers several explanations for its enduring appeal. It then describes the implications of this history for law and economics scholars, for present-day fights against economic inequality and in favor of regulatory reform, and for breaking down the silos between private law and poverty law.